Petition for Writ of Certiorari — Arpaio v. Doe (No. 07-839)

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Supreme Court, U.S.

1D) rite ®

07-839 DEC 21 2007

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JOSEPH ARPAIO,

MARICOPA COUNTY SHERIFF

IN HIS OFFICIAL CAPACITY,

MARICOPA COUNTY,

Petitioners,

JANE DOE,

INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE ARIZONA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

Dary! Manhart

(Counsel of Record)

Melissa lyer

Burch & Cracchiolo, P.A.

702 E. Osborn

Suite 200

Phoenix, Arizona 85014

(602) 274-7611

December 21, 2007 Attornevs for Petitioners

Washington.O C. © THIEL PRESS © (202) 328-3286

(1)

QUESTIONS PRESENTED

The Maricopa County Jail maintains a policy prohib-

iting all off-site transportation for prisoners seeking to

obtain non-therapeutic medical procedures including

non-therapeutic abortions. Prisoners seeking transport

can bypass the policy by obtaining a court order compel-

ling transport. This case presents the following ques-

tions:

(1) Whether, under Planned Parenthood v. Casey,

005 U.S. 833 (1992), the subject prison policy

imposes an “undue burden” on a female inmate’s

right to choose to terminate her pregnancy where

not medically necessary, and, if so, then

(2) Did the court below err in holding, in har-

mony with the Fifth Circuit, but in conflict with

the Third Circuit, that a policy prohibiting off-site

transport of prisoners for non-therapeutic abor-

tions is unconstitutional under the standard of

scrutiny set forth in Turner v. Safely, 482 U.S. 78

(1987)?

(ut)

ALL PARTIES TO THE PROCEEDINGS

Joseph Arpaio, Maricopa County Sheriff in his official

capacity

Maricopa County, Arizona

Jane Doe, individually and on behalf of all others simi-

larly situated

DISCLOSURE STATEMENT PER RULE 29.6

There is no parent corporation or public company

related to the parties in this case.

(iti)

TABLE OF CONTENTS

eT eg a Pe ere re

All Parties To The Proceedings ............2-se205. ii

Disclosure Statement Per Rule 29.6 ................ ii

a On SS 6 ns ho head eS ea wow aseee ewes i

Ce Ess CN cadaeee eben eee wane a ewee

I et oe oe Pe oe as eae

Ee Te Te GA coc nk 6066 sac a et bwewaenes

Reasons For Granting The Petition.................

I. Whether and to What Extent the Right to

Choose Survives Incarceration Raises Im-

portant Constitutional Questions Need-

ing Supreme Court Resolution ................ D

A. Undue Burden Analysis as Applied in

Pee Gis oy on ee a eee ees cee ee S)

B. Turner As Applied to Abortion.............. 3

II. Federal Circuits: Are Split on the Ques-

FS 5S C ee ee 12

A.The Monmouth and Victoria W Cases........ 13

B. Other Decided and Currently Pending

er re ry ms Pe ere 17

Ili. The Lower Court Anaysis In This Case Was

Manifestly Erroneous .................-..0-. 18

A. Arizona Courts’ Manifestly Erroneous

Undue 3urden Analysis................... 18

B. The Lower Court Substituted Its “‘Easy

Alternative’ and Defied the Deference

(iv)

Page

Required by a Proper Application of

ON TOT CL LOC ee LO EOC ETE Tee 19

PSC CEPA OC CRETE CT CRE CC CEU 21

APPENDICES:

Appendix A — Arizona Supreme Court Order

filed Sept. 26, 2007, denying petition for

eee eae ed a ke ee ee ee oD la

Appendix B — Arizona Court of Appeals Opin-

ion filed Jan. 23, 2007, affirming injunction

RE eT Mn RAED Na MS gaara ag ag 0 wa 3a

Appendix C — Maricopa County Superior Court

Order filed Oct. 31, 2005, enjoining policy....... 24a

Appendix D — Maricopa County Superior Court

Iviinute Entry filed Aug. 25, 2005, granting

summary judement.... 2... eee: eee eS

TABLE OF AUTHORITIES

Cases:

Beard v. Banks, 126 S. Ct. 2572 (2006) ...... 9,10, 20

Bell v. Wolfish, 441 U.S. 520 (1979)............ 9,10

Block v. Rutherford, 468 U.S. 576 (1984) ......... 20

Doe v. Arpaio (Arpaio I), No. CV 2004-009286,

2005 WL 2173988 (Ariz. Super. Ct. Aug.

Be eee os ee ee a 1, 18,19

Doe v. Arpaio (Arpaio IT), 214 Ariz. 237, 150

Pad 1258 (Ct. App. 2007)... 2. owe cee 1,19

Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio

I Fs edhe MeN ae ae RR te ls a tds | 5,17

(v)

Cases, continued: Page

Doe v. Boiton, 410 U.S. 179 (1973) .............06 6

Harris v. McRae, 448 U.S. 297 (1980)........... 8,11

Hudson v. Palmer, 468 U.S. 517 (1984) ........... 10

Johnson v. California, 543 U.S. 499 (2005) ......... 10

Maher v. Roe, 432 U.S. 464 (1977). .........00.... 7

Monmouth County Corr. Institutional Inmates

v. Lanzaro, 834 F.2d 326 (3d Cir.

SE Sa 2, 5, 12-15, 17

Overton v. Bazzetta, 539 U.S. 126 (2003).... 10, 16, 20

Planned Parenthood v. Casey, 505 U.S. 833

raw sc keen sivss 2,6, 13,19

Roe v. Crawford, 439 F. Supp. 2d 942 (W.D.

EE ee 5,18

Roe v. Leis, No. C-1-00-651, 2001 WL 1842459

eg ESS es) ) wae

Simat Corp. v. Ariz. Health Care Cost Contain-

ment Sys., 203 Ariz. 454, 56 P.3d 28 (2004) ....... 4

Turner v. Safely, 482 U.S. 78 (1987) .... 2,3,6,13,19

Victoria W v. Larpenter, 369 F.3d 475 (5th Cir.

A TE aa 2,5, 12-17

Weoster v. Reproductive Health Services, 492

rr ee

Statutes:

i ne cha ee eens eee 1

eee, pee. eet, AMM. 630-19G6.02....... 2... enon 4

PETITION FOR A WRIT OF CERTIORARI

Sheriff Joseph Arpaio and Maricopa County (col-

lectively the “County defendants’) respectfully peti-

tion for a writ of certiorari to review the judgment of

the Arizona Court of Appeals.

OPINIONS BELOW

The trial court decision (App. D) granting summary

judgment to Respondent Doe is unpublished, but can

be accessed electronically at Doe v. Arpaio (Arpaio 1),

No. CV 2004-009286, 2005 WL 2173988 at *3 (Ariz.

Super. Ct. Aug. 25, 2005). The injunction entered to

prevent enforcement of the subject policy is also included

in the separate appendix. App. C. The Arizona Court

of Appeals opinion affirming the decision (App. B) is

published in the Arizona and Pacific reporters at Doe

v. Arpaio (Arpaio II), 214 Ariz. 237, 150 P.3d 1258

(Ct. App. 2007). The Arizona Supreme Court entered

an order denying review of the Arizona Court of Appeals’

decision on September 25, 2007. App. A.

JURISDICTION

The judgment the County defendants seek to have

reviewed was entered in the Arizona Court of Appeals

on January 23, 2007. App. B. The Arizona Supreme

Court denied a timely petition for review on Septem-

ber 25, 2007. App. A. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves application of the Fourteenth

Amendment Due Process Clause:

No State shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law.

STATEMENT OF THE CASE

This case concerns whether a prison’s unwritten

policy (the “‘Policy”) denying inmate requests for trans-

port outside the jail facility to obtain non-therpeutic

medical procedures, including non-therapeutic abor-

tions, violates the Fourteenth Amendment. Two fed-

eral circuits have divided on this issue. Compare Mon-

mouth County Corr. Institutional Inmates v. Lanzaro,

834 F.2d 326 (3d Cir. 1987) (invalidating similar pol-

icy) with Victoria W. v. Larpenter, 369 F.3d 475 (5th

Cir. 2004) (upholding similar policy). To date, the

split remains unresolved. The Arizona Superior Court

{the trial court) enjoined the County defendants from

enforcing the subject Policy holding, ipso facto, that

“any delay” in obtaining a requested abortion con-

stitutes an unconstitutional “undue burden.” App. D.

The Arizona Court of Appeals then ruled that the Plan-

ned Parenthood v. Casey, 505 U.S. 833 (1992) “‘undue

burden” analysis was inapplicable, holding instead that

the validity of prison regulations is determined solelv

by application of the “legitimate penological inter-

ests” analysis set forth in Turner v. Safely, 482 U.S.

78 (1987). App. B. Substituting its own “easy alter-

native’ for that of the prison officials here, the Arizona

Court of Appeals then held that the Policy represented

an “exaggerated response” to the stated penological

objectives advanced to support it. Jd. The Arizona

Supreme Court declined to grant review. App. A. This

Court’s review is needed to resolve the issues presented.

The subject “Policy” is that Maricopa County Jail

inmates seeking any non-therapeutic medical procedure,

including but not limited to non-therapeutic abortions,

are required to get a court order directing the Sher-

iff’s office to provide transport off-site from the jail

for them to obtain the procedure. App. B. The reasons

for the Policy include safety, liability, and budget con-

cerns. Id. According to the affidavit testimony of Cap-

tain Kelch, one of the ‘“‘authors” of the Policy, the Policy

was developed during the administration of a prior

Sheriff:

to promote the safety of the office and to prevent

the sheriff’s office from having any exposure to

liability that may arise from such a transport... .

If we do not have to or need to transport an inmate

outside of the jail facility then we will not do so

as it significantly decreases the risks associated with

outside transports.

Former Maricopa County Counsel MacIntyre, the other

‘“‘author”’ of the Policy, also testified by deposition that,

1 Medical personnel with Correctional Health Services (““CHS”)

determine whether a jail inmate, including a pregnant inmate,

needs any particular medical services. App. B. In that context,

nonparty CHS determines whether an inmate needs to be trans-

ported for medical care. Jd. CHS only seeks transport for med-

ically necessary procedures. The Policy does not apply ‘“‘where

a pregnant inmate needs to have an abortion because her life or

health is at risk.” Jd. That would be regarded as a medically

necessary procedure.

at the time of adoption of the Policy, government

resources could not be expended for elective medical

procedures. See Ariz. Rev. Stat. Ann. §35-196.02,

held unconstitutional on state law grounds, Simat Corp.

v. Ariz. Health Care Cost Containment Sys., 203 Ariz.

454, 56 P.3d 28 (2004) (Arizona statute prohibiting use

of public resources for abortion procedure unless neces-

sary to save the life of the pregnant woman).

Shortly before her incarceration, plaintiff Doe learned

that she was pregnant. App. B. She advised jail per-

sonnel of her desire to terminate her pregnancy. Jd.

Pursuant to the Policy, plaintiff Doe was advised that

she would need to obtain a court order for transport

for an elective medical procedure. Jd. Plaintiff’s attor-

ney filed an unopposed motion which was unsuccessful,

then declined further representation.*2 Jd. Ms. Doe

obtained other counsel and filed this action challenging

the Policy. Jd.* Following cros: motions for summary

judgment, the trial court granted judgment in favor of

plaintiff Doe and against defendants Maricopa County

and Sheriff Arpaio. Jd. The Arizona Court of Appeals

affirmed the decision (App. B) and the Arizona Sup-

reme Court denied discretionary review. App. A.

“The court commissioner who denied the unopposed inotion

believed she did not have authority to order transport for an

elective medical procedure. /d

3Ms. Doe sought a temporary restraining order so that she

would be provided transport to and from the jail to obtain a

scheduled abortion. App. B. That same day, with counsel present

and no opposition, the court ordered Doe's transport to obtain

the procedure. Plaintiff Doe obtained the abortion. /d. The

lower court decided not to treat the issue as moot.

REASONS FOR GRANTING THE PETITION

WHETHER AND TO WHAT EXTENT THE RIGHT TO

CHOOSE SURVIVES INCARCERATION RAISES IE-

PORTANT CONSTITUTIONAL QUESTIONS NEEDING

SUPREME COURT RESOLUTION

Review is necessary to resolve the “important ques-

tion{s] of federal law”’’ that have not yet been “but

should be settled by this Court.” Sup. Ct. R. 10(b).

This case involves the scope of abortion rights, and

the application of those rights, whatever their scope,

in the unique prison context. As is evident from the

split in the federal circuits described in detail below,

the issues presented here cannot be resolved without

Supreme Court intervention.

A. Undue Burden Analysis as Applied in Prison

Context

The cases addressing similar prison policies affecting

an inmate’s decision to terminate her pregnancy,* all

have essentially overlooked the importance of the Casey

constitutional “undue burden” analysis required before

reaching the Turner test. Despite this oversight, Casey’s

constitutional analysis is essential to a complete evalua-

tion of the validity of the policy at issue.

The Court’s Turner test is not derived from the line

of abortion cases. It is a test of prison regulations and

applies only after a constitutional infringement is first

4See Monmouth County Corr. Institutional Inmates v.

Lanzero, 834 F.2d 326 (3d Cir. 1987); Victoria W v. Larpenter,

369 F.3d 475 (5th Cir. 2004); Roe v. Crawford, 439 F. Supp. 2d

942 (W.D. Mo. 2006): Doe v. Barron, 92 F. Supp. 2d 694 (S.D.

Ohio 1999); Roe v. Leis, No. C-1-00-651, 2001 WL 1842459

at *1 (S.D. Ohio Jan. 10, 2001).

found to exist. “f{W]hen a prison regulation impinges

on inmates’ constitutional rights, the regulation is valid

if it is reasonably related to a legitimate penological

interest.”” Turner v. Safely, 482 U.S. 78, 89 (1987)

(emphasis added). Stated simply, there is a clear

sequence: (1) does the subject prison regulation impinge

on an inmate’s constitutional rights; if so, then (2) is it

reasonably related to legitimate penological interests?

If a prison regulation does not infringe a constitutional

right, then the analysis ends there without reaching the

Turner factors. Thus, before reaching Turner it is essen-

tial first to ask and answer the threshold constitutional

question: does the policy impose an undue burden on

an incarcerated inmate’s right to choose to terminate

her pregnancy?

In Casey, this Court made a point to recognize that

‘“{ajil abortion regulations interfere to some degree

with a woman’s ability to decide whether to terminate

her pregnancy.” Casey, 505 U.S. at 875. “Not all bur-

dens on the right to decide whether to terminate a preg-

nancy will be undue,” and “not every law which makes

a right more difficult to exercise is, ipso facto, an

infringement of that right.”” Jd. at 873. “[A] pregnant

woman does not have an absolute constitutional right to

an abortion on her demand.” Doe v. Bolton, 410 U.S.

179, 189 (1973).

With the recognition that some level of restriction on

the abortion decision is permitted, this Court’s line of

abortion cases may be divided into two separate cate-

gories: (1) those cases involving laws that affirmatively

restrict or prohibit abortions and (2) those cases involv-

ing laws that fail to facilitate or otherwise assist in

implementing the decision to abort. While this Court

nas often held restrictions imposing a ‘‘substantial

obstacle” on the abortion right unconstitutional, it has,

with complete consistency, held that a state’s failure

to facilitate implementation of the decision is not uncon-

stitutional,

An example of a case falling in the latter category

is Maher v. Roe, 432 U.S. 464 (1977). There the plain-

tiffs were indigent women challenging Connecticut’s

law prohibiting government funding (Medicaid) of

non-therapeutic abortions. They: argued that elim-

ination of such funding was a state-created obstacle

burdening indigent women and effectively making it

impossible for them to carry out a decision to seek an

abortion. The Supreme Court held that the state could

lawfully withhold funding for elective abortions although

that might ‘“‘make it difficult and in some cases, perhaps,

impossible for some women to have abortions.” Jd. at

474. The Court determined that the pregnant woman’s

indigency, not the state regulation, created the obstacle.

A similar analysis was applied in Webster v. Repro-

ductive Health Services, 492 U.S. 490 (1989). ‘“‘[O]Jur

cases have recognized that the Due Process Clauses

generally confer no affirmative right to governmental

aid, even where such aid may be necessary to secure

life, liberty, or property interests of which the govern-

ment itself may not deprive the individual.’’ Jd. at

507 (citation omitted). “If the State may ‘make a

value judgment favoring childbirth over abortion and...

implement that judgment by the allocation of public

funds,’ . . . surely it may do so through the allocation

of other public resources, hospitals and medical staff.”

Id. at 510 (citation omitted).

As the Court stated in Casey, “[t]he fact that a law

which serves a valid purpose, one not designed to strike

at the right itself, has the incidental effect of making

it more difficult or more expensive to procure an abor-

tion cannot be enough to invalidate it.” 505 U.S. at 874.

For instance, the Court in Casey acknowledged that its

decision reaffirmed “that a State may require a minor

seeking an abortion to obtain the consent of a parent

or guardian, provided that there is an adequate judicial

bypass procedure.” Jd. at 899. Thus, obtaining a court

order in connection with seeking an abortion is not,

ipso facto, an undue burden. Moreover, the fact that

obtaining a judicial bypass order necessarily involves

some delay, does not make that procedure an undue

burden.

in Casey the Court upheld a mandatory waiting

period requiring that at least 24 hours before the abor-

tion, the woman be advised of the gestational age of the

fetus and of the health risks associated with both abor-

tion and childbirth. Thus, beth the delay required

for testing the gestational age of the fetus and the min-

imum 24 hour delay for the mandatory waiting period

were obvious delays which the Casey Court did not

find to be undue burdens. ‘“‘We do not doubt that, as the

District Court held, the waiting period has the effect of

‘increasing the cost and risk of delay of abortions.’ ”

505 U.S. at 885-87 (emphasis added). Thus, delay is

not synonymous with undue burden.

Similarly, having a court authorize a transport order

for an inmate to be able to leave the jail and receive an

elective medical procedure is not an undue burden. As

this Court has long recognized, while a woman has a

‘“‘fundamental”’ right to make the decision, “‘it does not

follow that a woman’s freedom of choice carries with it

a constitutional entitlement to the financial resources

to avail herself of the full range of protected choices.”

Harris v. McRae, 448 U.S. 297, 316 (1980). Following

Harris, it would seem that public prison officials are

similarly under no obligation to assist a female inmate

in implementing her decision by providing her with the

financial and other resources necessary to “avail herself

of the full range of protected choices” notwithstanding

her confinement. This is because it is the condition of

confinement brought on by the inmate’s criminal con-

duct that self-imposes a burden on her ability to exercise

the right, not the actions of the prison officials in carry-

ing out their duty to prevent her from leaving the jail

once she is incarcerated. As explained in Casey, the fact

that the transport Policy incidentally may make it more

difficult to obtain an abortion does not invalidate the

Policy. The evidence suggests that, in the past, despite

application of the Policy, every inmate who has requested

transport for such a procedure has been accommodated

once a court order is obtained. The Policy, therefore,

imposes no “‘undue”’ burden and is a constitutionally

permissible regulation. The Arizona courts should have

upheld the constitutionality of the Policy without even

reaching a Turner analysis.

B. Turner As Applied to Abortion

Even assuming Turner must be considered, a hallmark

of Turner has always been deference to the decisions of

prison officials. This Court has long recognized that the

judiciary is ill-equipped to handle the problems posed

by prison administration. “Suffice it to say that the

problems of prisons in America are complex and intract-

able, and, more to the point, they are not readily sus-

ceptible of resolution by decree.” Bell v. Wolfish, 441

U.S. 520, 548 n.30 (1979) (citation omitted). “Judicial

scrutiny of prison regulations is an endeavor fraught with

peril.”’ seard v. Banks, 126 S. Ct. 2572, 2582 (2006)

(Thomas, J., concurring in judgment). Flowing from this

recognition is the generally accepted principle that

imprisonment is fundamentally at odds with the free

exercise of many constitutional protections and that,

when inconsistent with penological objectives, some

of those protections simply do not survive incarcer-

ation at. all.° ‘Whether it be called a jail, a prison,

or a custodial center, the purpose of the facility is to

detain. Loss of freedom of choice and privacy are

inherent incidents of confinement in such a facility.”

Bell, 441 U.S. at 537. ‘“‘The very object of imprison-

ment is confinement. Many of the liberties and privi-

leges enjoyed by other citizens must be surrendered

by the prisoner. An inmate does not retain rights incon-

sistent with proper incarceration.” Overton v. Bazzetta,

039 U.S. 126, 131 (2003). “{I}mprisonment carries

with it the circumscription or loss of many significant

rights.’ Hudson v. Palmer, 468 U.S. 517, 524 (1984).

Accordingly, the question under Turner is necessarily

bifurcated: (1) do prisoners possess a right to a purely

non-therapeutic abortion and (2) if so, to what extent

does that right trump a prison’s otherwise legitimate

policies?

°Indeed, Justices Thomas and Scalia have long recognized

that, apart from the Eighth Amendment prohibition on cruel and

unusual punishment, the Constitution does not otherwise contem-

plate the free exercise or retention of ‘“‘fundamental”’ rights by

incarcerated individuals. In recognizing the Eighth Amendment

limits of prisoners’ rights, Justices Thomas and Scalia have also

identified the severe consequences of the judiciary’s attempts to

intervene and reinstate such rights nevertheless. See Beard, 126

S. Ct. at 2582 (2006) (Thomas, J., concurring in judgment) (dis-

cussing violent backlash after court invalidated racial segregation

policy in California prison). See also Johnson v. California, 543

U.S. 499 (2005).

The Maricopa County Jail does not perform abor-

tions within its facility. Consequently, a final deter-

mination in favor of plaintiff Doe is necessarily a final

determination that the County defendants are con-

stitutionally required to transport prisoners to an off-

site facility to obtain the desired procedure or, in the

alternative, to equip themselves to begin performing

abortions inside the jail upon request by a pregnant

inmate. Forcing a state prison to perform the abor-

tion procedure inside its facility is obviously at odds

with the long line of precedent expressly holding that

the state has no such obligation. The alternative —

forced off-site transport to an unsecure abortion clinic

of the inmate’s choice — is also obviously at odds with

the primary penological objective of this and indeed

all prisons — confinement. In fact, no Supreme Court

decision premised on Turner has ever required prison

officials to go to such lengths to accommodate pris-

oners wishing to exercise their constitutional rights

in the absence of a finding that the desired proced-

ure is medically necessary, thus implicating the Eighth

Amendment. Consequently, if this Court were to man-

date that the abortion procedure be provided to in-

carcerated inmates either on-site or off-site, it would

essentially have to designate all non-therapeutic abor-

tions as “serious medical needs” subject to an Eighth

Amendment analysis rather than scrutiny under Turner.

©The state may choose not to provide public funding for

abortions. Harris v. McRae, 448 U.S. 297 (1980). The state may

choose not to permit public funds, employees, or facilities to be

used for, or to assist in performing, non-therapeutic abortions.

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

In fact, the state may adopt a policy favoring childbirth over

abortion and implement that policy. /d. at 508-10. ‘‘Maher,

Poelker, and McRae all support the view that the State need not

commit any resources to facilitating abortions.” Jd. at 511.

The constitutional questions presented by the abor-

tion cases arising within the prison system are important

ones. The Turner test has never before been analyzed

by this Court in an abortion context. This Court should

grant review to determine whether and to what extent

the right to seek a non-therapeutic abortion survives

incarceration and whether and to what extent prison

officials must accommodate a prisoner’s exercise of

that right if it does.

FEDERAL CIRCUITS ARE SPLIT ON THE QUESTIONS

PRESENTED

The constitutional quandary presented in this case is

a necessary consequence of attempting to accommodate

constitutional rights without undermining prison admin-

istration. The Policy at issue calls for the Court to address

the-extent to which a state’s discretion to implement reg-

ulations and policies necessary to assure the safe and

efficient administration of its prison system must yield

to a woman’s decision to abort her pregnancy. The ques-

tion has produced a split between the Third and the

Fifth Circuits. See Monmouth County Corr. Institutional

Inmates v. Lanzaro, 3834 F.2d 326 (3d Cir. 1987); Vic-

toria W v. Larpenter, 369 F.3d 475 (5th Cir. 2004).

Yet unresolved, the circuit split on these issues has forced

lower federal and state courts now considering the issue

to choose sides in the split and, more fundamentally, in

the underlying juridical conflict: Which interest should

prevail — a woman’s right to choose or a prison’s right

to regulate? Accordingly, this Court’s review is war-

ranted. See Sup. Ct. R. 10(a) (review proper when “‘a

United States court of appeals has entered a decision in

conflict with the decision of another United States

court of appeals on the same important matter.’’).

A. The Monmouth and Victoria W Cases

In Monmouth, the Third Circuit addressed a policy

similar to that at issue here, which restricted inmate

transport outside the Monmouth County jail for non-

therapeutic abortions absent a court order. 834 F.2d

at 334. Without conducting the “undue burden”’ anal-

ysis (as Planned Parenthood v. Casey, 505 U.S. 833

(1992) had not yet been decided), the Third Circuit

applied Turner v. Safely, 482 U.S. 78 (1987) (decided

the same year as Monmouth) to determine whether the

policy could pass constitutional scrutiny as “rationally

related to legitimate penological interests.’’ The Mon-

mouth court ultimately concluded that the prison’s

policy must yield to the incarcerated woman’s deci-

sion to terminate her pregnancy. Monmouth, 834 F.2d

at 326. Fifteen years later, in Victoria W, the Fifth

Circuit addressed a similar prison policy. 369 F.3d at

479. The Fifth Circuit took a fundamentally different

approach to the Turner test and, consequently, reached

the opposite result. A close comparison of their analyses

demonstrates the fundamental divergence between these

circuits over the application of Turner to abortion rights

in the prison context.

Under Turner, a prison policy that infringes a con-

stitutional right is nevertheless valid if the policy is

“rationally related to legitimate penological interests.”’

Turner, 482 U.S. at 89. Turner focused on four ele-

ments: (1) whether there is ‘“‘a ‘valid, rational connection’

between the prison regulation and the legitimate govern-

mental interest put forward to justify it,” (2) “whether

there are alternative means of exercising the right that

remain open to prison inmates;” (3) ‘“‘the impact accom-

modation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison

resources generally;” and (4) “‘the absence of ready alter-

natives.”” Jd. The divergence between Monmouth’s

and Victoria W’s application of Turner is apparent from

a step-by-step comparison of their analyses of these

four elements.

On the first element — whether a policy prohibiting

transport for non-therapeutic abortions had ‘“‘a valid

rational connection” to the interests advanced to sup-

port the policy — Monmouth and Victoria W reached

opposite conclusions. The Third Circuit summarily dis-

missed the “financial and administrative burdens”

advanced to support the Monmouth policy as presump-

tively illegitimate. ‘‘We agree with the district court

that, at the threshold, the County’s articulated objec-

tion to the costs of providing MCCI [the subject jail ]

inmates with abortion-related services independently

fails to state a legitimate governmental interest sufficient

to justify the County’s policy.”’ Monmouth, 834 F.2d

at 336. In Victoria W, by contrast, the Fifth Circuit

recognized that the interests advanced in support of the

prison policy were presumptively valid. ‘“‘It is the in-

mate’s burden to disprove the validity of the regulation.”

Victoria W, 369 F.3d at 484. In so doing, the Fifth

Circuit upheld financial and administrative burdens as

legitimate interests advanced to support the policy.

“The policy aims to reduce the total number of off-site

transports and thereby reduce the effects on prison

resources, inmate security, and potential liability.”

Id. at 486-87.

On the second Turner factor — “whether there are

alternative means of exercising the right that remain

open to prison inmates’ — Monmouth and Victoria W

also disagreed. Monmouth found that the court order

alternative to the policy denying transport for abor-

tions was an insufficient alternative for pregnant inmates

wishing to terminate their pregnancies. The Third

Circuit cited time constraints and possible delay in

obtaining the needed order as defeating the legitimacy

of the court order alternative. ‘{1I]nmates imprisoned

for less serious offenses are exposed to an unconsti-

tutional risk of delay under the County’s court-ordered

release requirement and have no viable alternative avail-

able.”” Monmouth, 834 F.2d at 339. Victoria W, by

contrast, found the court order requirement was suf-

ficient as an “‘alternative means of exercising the right.”

“Elective treatment is not prohibited, although not via-

ble within the prison. Rather, an inmate can receive

the treatment by following a set procedure.”’ Victoria

W, 369 F.3d at 486.

In evaluating the third Turner factor — what impact

accommodation of the right to terminate one’s preg-

nancy would have on inmates and prison personnel —

the Monmouth court fashioned this element of the test

into a basis for requiring funding for abortions. “‘[ P Jro-

viding an inmate who elects to have a nontherapeutic

abortion with both transportation to an appropriate

medical facility and the necessary funding for the pro-

cedure will not burden ‘the use of the prison’s limited

resources.’ ’” Monmouth, 834 F.2d at 341. Victoria W

again reached the opposite conclusion.

Victoria contends that the prison would have lost

no resources by transporting her to the abortion

clinic because Victoria was willing to pay for the

procedure and the cost of the guard. This fact

mitigates one concern underlying the policy — the

resources lost by the prison — but it ignores the fact

that the prison is still either short-handed or out the

cost of added personnel. It also forgets that the

policy’s simple means of reducing potential liability

of the Parish is avoiding unnecessary transports.

Victoria W, 369 F.3d at 487 (emphasis added).

On the fourth and final Turner factor — an absence

of alternative means of exercising the right’ Mon-

mouth and Victoria W also diverge. The Monmouth

court simply applied its conclusions from the prior three

elements to eliminate the fourth one.

MCCI [jail] inmates seek provision of all medical

services related to their pregnancies — including

abortion-related services — on the same terms that

medical services are currently provided to pregnant

inmates who opt to give birth. As indicated above,

we perceive no significant disruption of valid peno-

logical interests that would accompany the provision

of the requested services.

§34 F.2d at 344. Victoria W recognized the court order

alternative as a viable means of exercising the right “‘by

following a set procedure,” which was to file a motion,

schedule a hearing, then get an order. 369 F.3d at 486.

7The fourth factor is not a requirement that the government

onlv impose a lesser alternative regulation, but rather ‘“‘asks instead

whether the prisoner has pointed to some obvious regulatory alter-

native that fully accommodates the asserted right while not impos-

ing more than a de minimis cost to the valid penological goal.”

Overton v. Bazzetta, 539 U.S. 126, 136 (2003). This is a “high

standard” imposed on the prisoner, not the state, to identify such

“ready alternatives.”’ Jd.

The Victoria W court held that the challenger did not

meet the burden of showing no more than de minimis

costs to the prison’s liability concerns and that in any

event ‘“‘a ready alternative is only some evidence affect-

ing the reasonable relationship standard; it is not dis-

positive.” Jd. at 487. Thus, on this final Turner factor,

the two cases are also diametrically opposed.

The Monmouth and Victoria W decisions place the

Third and Fifth Circuits in dramatic conflict on a federal

constitutional question. The cases scrutinized compara-

ble policies, but exhibit a fundamental departure in their

interpretation of Turner. More specifically, when com-

pared, these cases illustrate the difficulty in determining

what level of deference is due to prison officials when

their policies and regulations affect a prisoner’s exercise

of a constitutional right. The question is further compli-

cated when, as here, exercise of the subject right requires

transport outside prison walls to an unsecure medical

facility of the prisoner’s choosing without a determina-

tion that the procedure is a “‘serious medical need”’

invoking the protections of the Eighth Amendment

prohibition on cruel and unusual punishment.

B. Other Decided and Currently Pending Cases

Courts faced with this issue have expressly recognized

the split between Monmouth and Victoria W.* The trial

court in the present case declared: “[T]his court finds

the reasoning in Monmouth County more persuasive

8Two federal district courts addressing similar jail policies

after Monmouth adopted its holding without conducting any fur-

ther inquiry because Victoria W had not yet been decided. See

Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999): Roe v. Leis,

No. C-1-00-651, 2001 WL 1842459, at *1 (S.D. Ohio Jan. 10, 2001).

than Victoria W.’’ Arpaio 1, 2005 WL 2173988 at *3.

App. D. See also Roe v. Crawford, 439 F. Supp. 2d

942 (W.D. Mo. 2006) (implicitly rejecting Victona W

by citing and relying exclusively on Monmouth). The

Eighth Circuit is currently considering a similar prison

policy on appeal in Crawford v. Roe, No. 06-3108 (Sth

Cir. 2007), and will be issuing yet another decision

regarding the questions presented by this case (oral

argument in Crawford took place on September 24,

2007).° Granting review in this case would thus resolve

the clear split between the Fifth and the Third Circuits

before the federal courts become even further divided.

Il.

THE LOWER COURT ANALYSIS IN THIS CASE WAS

MANIFESTLY ERRONEOUS

Review is also needed because, in this case, the Arizona

courts have “decided an important federal question in a

way that conflicts with relevant decisions of this Court.”

See Sup. Ct. R. 10(c).

A. Arizona Courts’ Manifestly Erroneous Undue

Burden Analysis

In affirming the injunction prohibiting the County

from enforcing its policy in this case, the Arizona courts

made two fundamental errors of federal constitutional

law. First, purportedly applying the “‘undue burden”

test to invalidate the policy as unconstitutional, the

trial court here ruled that ‘‘any delay’ would necessar-

4 , . ,

Oral argument before the Eighth Circuit in Crawford v

Roe can be reviewed at Altp://www.ca8.uscourts.gov/oralargs

oaFrame.html

ily constitute an undue burden. “Since abortions are

so time sensitive, any delay will inevitabl[ y ] result in an

undue burden.” Arpaio J, 2005 WL 2173988 at *1

(emphasis added). App. D. The trial court’s ruling in

this regard directly contravenes existing Supreme Court

precedent. See Casey, 505 U.S. at 873-75 (“Not all

burdens on the right to decide whether to terminate a

pregnancy will be undue,” and “not every law which

makes a right more difficult to exercise is, ipso facto,

an infringement of that right.”). The Arizona Court

of Appeals not only failed to reverse this legal error,

but added its own by refusing to conduct any consti-

tutional analysis at all, concluding that Casey aid not

apply. “‘We conclude that the undue burden test does

not apply to the Policy at issue.” Arpaio IJ, 214 Ariz.

at 241, 150 P.3d at 1262. App. B. The Arizona Court

of Appeals ruled that Casey and Turner were “alter-

native” rather than “‘sequential’”’ tests. Thus, the court

below held that a prison regulation is subject to judi-

cial scrutiny under Turner regardless of whether the

subject regulation infringes any constitutional rights at

all.

B. The Lower Court Substitued Its “Easy Alter-

native’ and Defied the Deference Required by

a Proper Application of Turner

The second error manifest in the Arizona court’s

opinion is the lack of deference given to the decisions

of the prison officials here. Instead : 439 F. Supp. the

County defendants’ expert judgment, the Arizona Court

of Appeals substituted its own “easy alternative” to re-

place the prison’s policy now enjoined. “[ W Je determine

that there is an obvious, easy alternative.”’ 214 Ariz. at

246, 150 P.3d at 1267. “{I]n doing so, it placed too

high an evidentiary burden upon the [County],” and

“offer[ ed] too little deference to the judgment of prison

officials about such matters.” Beard, 126 S. Ct. at 2581.

Irrespective of the “determination” that there was an

“obvious easy alternative,” Arizona courts are not at

liberty to ignore the sound reasoning offered to support

the Policy here and substitute a different policy in its

place. Overton, 539 U.S. at 132 (‘“‘We must accord sub-

stantial deference to the professional judgment of prison

administrators who bear a significant responsibility for

defining the legitimate goals of a corrections system and

for determining the most appropriate means to accom-

plish them.’’). Once it found a rational connection

between the Policy and the interests offered to justify

it, “its inquiry should have ended. The court’s further

‘balancing’ resulted in an impermissible substitution

of its view on the proper administration of [ the Maricopa

County Jail] for that of experienced administrators of

that facility.” Block v. Rutherford, 468 U.S. 576,

589 (1984).

The erroneous analysis employed to invalidate the

Maricopa County prison policy prohibiting prisoner

transport for elective medical procedures (including

abortions) is further support for this Court’s review as

the court of last resort. It demonstrates why review

of the important questions presented as well as reversal

of the Arizona courts’ erroneous conclusions on those

questions is now needed.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Daryl Manhart

(Counsel of Record)

Melissa Lyer

Burch & Cracchiolo, P.A.

702 E. Osborn

Suite 200

Phoenix, Arizona 85014

Phone: (602) 274-7611

Fax: (602) 234-0341

Attorneys for Petitioners

December 21, 2007

APPENDIX A

[Filed Sept. 26, 2007 ]

[SEAL ]

SUPREME COURT

STATE OF ARIZONA

402 Arizona State Courts Building

1501 West Washington Street

Phoenix, Arizona 85007-3231

Telephone: (602) 452-3396

Kathleen E. Kempley

Chief Deputy Clerk

Rachelle M. Resnick

Clerk of the Court

September 26, 2007

RE: JANE DOE v JOSEPH ARPAIO/MARICOPA

COUNTY

Arizona Supreme Court No. CV-07-0104-PR

Court of Appeals Division One No. 1 CA-CV

05-0835

Maricopa County Superior Court No. CV 2004-

009286

GREETINGS:

The following action was taken by the Supreme Court of

the State of Arizona on September 26, 2007, in regard to

the above-referenced cause:

ORDERED: Petition for Review = DENIED.

FURTHER ORDERED: Request for Attorneys’ Fees

[ Appellee Jane Doe] = GRANTED.

Justice Bales did not participate in the determination of

this matter.

Record returned to the Court of Appeals, Division One,

Phoenix, this 26th day of September, 2007.

Rachelle M Resnick, Clerk

TO:

Brigitte Adrienne Amiri

Susan M Freeman, Lewis and Roca LLP

Daryl Manhart, Burch & Cracchiolo PA

Nikolas T Nikas

John J Jakubcezyk, John J Jakubcezyk Attorney at Law

Mailee R Smith

West Publishing Company

Lexis Nexis

Philip G Urry, Clerk, Court of Appeals, Division One,

Phoenix

APPENDIX B

{ Filed Jan 23 2007 }

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CV 05-0835

DEPARTMENT C

JANE DOE, individually and on behalf of

all others similarly situated,

Plaintiffs/ Appellees,

JOSEPH ARPAIO, Maricopa County Sheriff, in his

official capacity; MARICOPA COUNTY,

Defendants/ Appellantts.

Appeal from the Superior Court in Maricopa County

Cause No. CV 2004-009286

The Honorable Barry C. Schneider, Judge

OPINION

AFFIRMED

American Civil Liberties Union New York, NY

Foundation

By Brigitte A. Amiri

Jennifer McAllister-Nevins

Susan Talcott Camp

Charu Chandrasekhar

Co-Counsel for Plaintiffs/ Appellees

Lewis and Roca LLP Phoenix

By Susan M. Freeman

Sonya K. Parrish-Boun

Co-counsel for Plaintiffs/Appellees

Burch & Cracchiolo PA Phoenix

By Dary! Manhart

Stasy D. Knight-Click

Counsel for Defendants/ Appellants

IRVINE, Presiding Judge

{1 It is well-established law that certain constitutional

rights of prison inmates may be curtailed to satisfy legit-

imate penological interests. This case involves an inmate?

who asked to be transported to a location outside the jail

so she could obtain a first-trimester abortion at her own

expense. She was also willing to pay any security and

transportation costs. Maricopa County and Joseph

Arpaio, in his official capacity as the Maricopa County

Sheriff (collectively “the County’), had no objection to

the request, but required her to first obtain a court order

directing the transportation. ‘The central issue before us

is whether requiring a court order to transport an inmate

1The trial court allowed plaintiff Jane Doe to proceed

pseudonymously. We continue that usage.

to receive an abortion serves a legitimate penological

interest. We hold that it does not, and affirm the judg-

ment of the superior court.

BACKGROUND

42 The County operates several jail facilities in Mari-

copa County that house pre-trial detainess and sentenced

inmates who are not transferred to the Arizona Depart-

ment of Corrections. Correctional Health Services

(“CHS”), an agency of the County, provides medical

care to the inmates in the jail facilities, and also in a

secure ward of the county hospital. When an inmate

requires medical services beyond the capacity of the

on-site CHS personnel, CHS arranges for the County to

transport the inmate to an off-site medical facility.

43 CHS only performs, and only seeks transportation

for, procedures CHS deems medically necessary. Accord-

ingly, CHS provides pre-natal care and delivery services

to pregnant inmates, but does not provide non-thera-

peutic abortion services.

¢4 The County has an unwritten policy that prohibits

transportation of inmates off-site for elective medical

procedures (the “Policy”). As a result of the Policy,

an inmate may only obtain a non-therapeutic abortion by

securing a court order directing the County to transport

her off-site for the procedure.” The County requires the

inmate to make her own financial arrangements for the

2The County attempts to recast the Policy as one that

permits transportation for abortion services if the inmate obtains

a court order. This is a misleading characterization, however,

as the County must comply with a court order directing it to

transport an inmate or risk being held in contempt of court. See

[footnote continued |

procedure and to pay the cost of security and transpor-

tation.

{5 Doe discovered she was pregnant shortly before the

County took her into custody on March 18, 2004 after

she was sentenced to four months in the County jail.*

CHS personnel confirmed Doe’s pregnancy by medical

examination during her first week of incarceration.

She immediately and repeatedly informed CHS medical

personnel that she desired to terminate the pregnancy.

Consistent with the Policy, the County refused to trans-

port Doe for an abortion procedure.

{6 For reasons mostly beyond her control, it took Doe

seven weeks to obtain a court order. The superior court

commissioner who sentenced Doe denied Doe’s initial

request for a court order directing the County to trans-

port Doe for the procedure, stating, “I have been told

that this Court and this County does not involve itself

usually in transporting or assisting inmates in having

elective medical procedures performed.” Doe event-

ually, on May 12, 2004, obtained an order from the

superior court that required the County to transport

her to have the abortion procedure.

Holt v. Hotham, 197 Ariz. 614, 616, 911, 5 P.3d 948, 950 (App.

2000) (stating civil contempt arises when a party refuses to per-

form an act he is lawfully ordered to perform; the power to pun-

ish contempt is inherent in the trial court). The County does not

adequately accommodate the exercise of an inmate’s constitutional

rights by simply recognizing that the courts are available to enforce

those rights.

3Doe asked the prosecutor to delay the sentencing, but the

prosecutor refused, telling her that she could obtain an abortion

while on work furlough release. Although Doe was eligible for

work furlough, when jail personne! learned she was pregnant, they

transferred her to a dorm in the jail from which she could not par-

ticipate in work furlough. In this dorm, her access to telephones

was limited.

q7 In conjunction with her request for an order, Doe

filed a complaint seeking a declaratory judgment that the

Policy was unconstitutional and alleging claims under

42 United States Code section 1983 (1996) for viola-

tion of plaintiffs’ rights to privacy under the Fourteenth

Amendment of the United States Constitution and vio-

lation of plaintiffs’ rights to adequate medical care under

the Eighth Amendment of the United States Constitu-

tion.* Doe also sought a permanent injunction enjoin-

ing the County from enforcing the Policy insofar as it

would deny plaintiffs access to safe, timely and legal

abortions.

48 The parties cross-moved for summary judgment.

The superior court granted Doe’s motion for summary

judgment and denied the County’s motion, ruling that

the. Policy was unconstitutional because it constituted

an “‘undue burden” on a woman’s right to choose to

have an abortion and because it found the Policy served

no legitimate penological purpose.

q9 The superior court entered judgment in favor of

Doe and permanently enjoined the County from enforc-

ing the Policy insofar as it applies to an inmate seeking

an abortion. The county timely appealed. We have

jurisdiction pursuant to Arizona Revised Statutes

(“A.R.S.”) section 12-2101(B) (2008).

4Doe brought her complaint on behalf of all those similarly

situated. The trial court ruled that given the limited duration of

a woman’s pregnancy and the limited duration of County jail

sentences, the mootness doctrine did not prevent the court from

addressing Doe’s cause of action on the merits.

DISCUSSION

q¢10 Acourt may grant summary judgment when “there

is no genuine issue as to any material fact and [ ] the

moving party is entitled to a judgment as a matter of

law.” Ariz. R. Civ. P. 56(c)(1). We view the evidence in

the light most favorable to the County, against which

judgment was entered, and determine de novo whether

there are genuine issues of material fact and whether

the trial court erred in its application of the law. Salib

v. City of Mesa, 212 Ariz. 446, 450, 44, 133 P.3d 756,

760 (App. 2006).

{11 Doe alleged, and the superior court found, that

the Policy violates a woman’s Fourteenth Amendment

right to choose to have an abortion, as articulated by the

United States Supreme Court in Roe v. Wade, 410 U.S.

113, 153-54 (1973), and reaffirmed by the Court in

Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992).

The trial court also concluded that the Policy served no

reasonable penological interest, citing the four-part test

developed in Turner v. Safley, 482 U.S. 78, 84 (1987).

The County contends these rulings were in error.

§€12 As an initial matter, we recognize that the County’s

Policy does not apply solely to abortion procedures, but

prohibits the transportation of inmates off-site for any

elective medical procedure. Doe challenges the Policy

only insofar as it applies to inmates seeking a non-thera-

peutic abortion. The interests at stake, and the constitu-

tional analysis of any rights associated with such inter-

ests, will necessarily depend on the specific elective

procedure sought. An inmate will not be prejudiced by

having to wait until after release to obtain most elective

medical procedures, but the Supreme Court has recog-

nized that involuntary delays in obtaining an abortion

have constitutional significance because ‘“‘time is likely

to be of the essence in an abortion decision.” H.L. v.

Matheson, 450 U.S. 398, 412 (1981); see also Ohio v.

Akron Ctr. for Reprod. :tealth, 497 U.S. 502, 513-14

(1990) (recognizing that a statutory judicial bypass

procedure must mandate an expeditious process “to

allow ... an effective opportunity to obtain the abor-

tion”). Accordingly, we limit our discussion of the Pol-

icy to its application to prohibit the transportation of

inmates for elective abortion services.

A. Undue Burden Test

413 The parties present divergent views of the standard

we should apply to review the Policy. Doe argues we

must apply the “undue burden” test articulated in Casey.

The County maintains, however, that because the Policy

is a prison regulation, even if we determine the Policy

imposes an “undue burden,” we must defer to the

County’s discretion if the Policy reasonably relates to a

legitimate penological interest under Turner. The

county contends the trial court erred by evaluating

the Policy under both tests, and asserts that the trial

court should have concluded that the Policy does not

constitute an ‘‘undue burden” and ended its inquiry.°

To determine which standard applies, we evaluate the

°The County also argues that we must first apply the undue

burden test, and only if we find that the Policy constitutes an

undue burden on inmates’ rights to choose to have an abortion

may we then examine whether the Policy is valid under Turner as

a regulation reasonably related to legitimate penological inter-

ests. Courts, however, have applied the tests set forth in Casey

and Turner as alternative, not sequential measures. See Roe v.

Crawford, 439 F. Supp. 2d 942, 947-49 (W.D. Mo. 2006), appeal

filed; Victoria W. v. Larpenter, 369 F.3d 475 (Sth Cir. 2004). We

agree with this approach.

10a

nature of the right to choose to have an abortion and the

extent to which jail officials may restrict inmates’ con-

stitutional rights.

414 Imprisonment does not automatically deprive a

prisoner of his or her constitutional rights or claims.

Turner, 482 U.S. at 84. Nevertheless, imprisonment

allows the government to impose greater restrictions on

the exercise of constitutional rights than would other-

wise be valid, and many constitutional rights enjoyed

prior to incarceration are limited or lost upon imprison-

ment. See Beard v. Banks, 126 S. Ct. 2572, 2577-78

(2006) (stating the Constitution permits greater restric-

tion of prisoners’ rights). The United States Supreme

Court ruled in Turner that a prison regulation that

impinges on inmates’ constitutional rights might none-

theless be valid if the regulation “is reasonably related

to legitimate penological interests,” and is not an “‘exag-

gerated response’? to the regulation’s objectives. 482

U.S. at 89-91. The County urges us to apply this stand-

ard to evaluate the Policy.

¢15 Doe argues, however, that pursuant to the United

States Supreme Court decision in Johnson v. California,

543 U.S. 499 (2005), the Policy is subject only to the

standard of review applicable to restrictions on the right

to choose to terminate a pregnancy outside the prison

context, specifically, the “undue burden” test. In

Johnson, the Court held that a prison regulation requiring

segregation of inmates on the basis of race should be anal-

vzed under the strict-scrutiny test otherwise applicable

to policies based on racial classifications, not pursuant to

the more deferential Turner reasonable-relationship test.

Id. at 512. The Court reasoned that it had applied Tur-

ner’s reasonable-relationship test only to rights that are

“inconsistent with proper incarceration,’ because those

lla

rights may be limited in the prison context, but that the

logic of Turner did not apply to the segregation policy

because the right to be free from racial discrimination

“need not necessarily be compromised for the sake of

proper prison administration.” Jd. at 510 (quoting Over-

ton v. Bazzetta, 539 U.S. 126, 131 (2003)). Doe claims

that a woman’s right to choose to terminate her preg-

nancy, like the right to be free from racial discrimination,

is not inconsistent with incarceration, bears no relation-

ship to the goals of criminal deterrence or social isola-

tion, and implicates no security concerns. Doe thus

urges us to apply the undue burden test to evaluate the

County’s Policy.

{16 We conclude that the undue burden test does not

apply to the Policy at issue. The Supreme Court’s deci-

sion in Johnson did not overrule the numerous cases in

which the Court has consistently held that incarceration

limits many privileges and rights. Jd. Indeed, the Court

in Johnson expressly acknowledged many appropriate

prison restrictions on constitutionally protected rights,

including restrictions on freedom of association, limita-

tions on inmate correspondence, restrictions on inmates’

access to courts, restrictions on receipt of subscription

publications, work rules limiting prisoners’ attendance

at religious services, the involuntary medication of

mentally ill prisoners and restrictions on the right to

marry. /d. We believe that Doe’s claim challenging the

Countv’s restrictions on a woman’s right to terminate

her pregnancy is not analogous to the equal protection

challenge to a race-based prison regulation at issue in

Johnson. As Johnson shows, distinctions based on race

are inherently suspect, but the Supreme Court has

recognized that the right to an abortion is not unlim-

ited. Accordingly, we analyze Doe’s Fourteenth

12a

Amendment claim by applying the four-part Turner

test to determine whether the Policy is a valid regulation

of inmates’ rights. Accord Roe, 439 F. Supp. 2d at 948

(declining to interpret Johnson to require the application

of the Casey undue burden test, rather than the Turner

reasonable relationship test, to a prison regulation pro-

hibiting transportation of inmates for abortion care).

B. Turner Analysis

417 The United States Supreme Court held in Turner

that several factors are relevant in determining whether

a policy that restricts inmates’ constitutional rights is

valid as a regulation reasonably related to a legitimate

penological interest. These factors, commonly known as

the Turner test, are (1) whether there is a “‘valid, rational

connection” between the prison regulation and the legit-

imate, neutral governmental objective advanced as its

justification; (2) whether the inmates have an alterna-

tive means of exercising the restricted right; (3) the

impact of accommodation of the right on prison re-

sources; and (4) whether alternatives to the policy exist

that would accommodate the inmates’ rights at de

minimis cost to penological interests. Jd. at 89-91

(citations omitted). The County contends that consid-

eration of these factors weighs in favor of the Policy and

argues that the trial court erred by failing to give approp-

riate deference to the expertise and judgment of the

County’s jail administrators.

418 We examine each factor in turn, affording “sub-

stantial deference to the professional judgment of prison

administrators, who bear a significant responsibility for

defining the legitimate goals of a corrections system and

for determining the most appropriate means to accom-

plish them.’’ Overton, 539 U.S. at 132 (holding regu-

13a

lation limiting prison visitation rights did not violate

First Amendment’s guarantee of free association). We are

mindful, however, that in this case the County has effect-

ively declined to exercise its professional judgment. The

County has simply left to the courts the security and

resource issues it asserts should control the decision

whether it is necessary to transport an inmate. Because

of this, our deference to the objectives presented by the

County is confined to its decision to require a court

order.

1. Whether the Policy Bears a Reasonable Relation-

ship to Legitimate Penological Interests

419 The County advances several penological justifi-

cations for the Policy. Specifically, the safety/security

of inmates and others, conservation of government

resources, limitation of the County’s liability exposure,

and ensuring that prison officials do not violate Arizona

law.

a. Safety and Security Concerns

€20 Safety and security considerations properly under-

lie all County transportation regulations and policies, and

constitute legitimate governmental interests. See Over-

ton, 539 U.S. at 133 (stating that promoting internal

security is perhaps the most legitimate of all penological

goals). The County claims that the Policy furthers its

security concerns because it requires the superior court

to examine the reasons advanced by the inmate for

transportation and to determine whether the transpor-

tation is necessary. Doe argues that the evidence does

not support the County’s proffered security justifica-

tion.

14a

q21 The County frequently transports inmates for

court appearances, compassionate visits (visits with dying

family members or for funeral services), and for non-emer-

gency medical care that CHS deems necessary. The

County performs many of these transports voluntarily,

without a court order.

q 22 We find no evidence in the record that an increased

risk of a security breach exists when the County trans-

ports an inmate for a non-theraveutic abortion compared

to transportation for any othe: reason. Indeed, the

County acknowledged that tratisporting inmates for

abortion services is no more secure if done pursuant to

court order, as the County now does, rather than volun-

tarily. Moreover, Frank Kelch, the former Captain and

Division Commander for the County’s Security and

Transport Division, testified that he is aware of only

four or five transports for non-therapeutic abortions

since the County instituted the Policy approximately

fifteen years ago.

423 We recognize that the County may have a legit-

imate security interest in keeping the number of in-

mate transports to a minimum. See, e.g., Victoria W.,

369 F.3d at 486-87 (holding requirement that prison-

ers obtain court order for elective medical procedures,

including abortion, was reasonably related to legitimate

security concerns because it aimed to reduce the total

number of off-site transports). Nevertheless, the County

fails to present any evidence that the Policy in any way

addresses its security concerns. “[ A] regulation cannot

be sustained where the logical connection between the

regulation and the asserted goal is so remote as to ren-

der the policy -arbitrary or irrational.” Turner, 482 U.S.

at 89-90.

15a

q24 The County did not object to transporting Doe

on security grounds and apparently has never raised a

security objection to transporting any inmate seeking

an abortion. Given that the County, not the court, has

expertise in security, we fail to see how requiring a

court order furthers any legitimate security interest.

In any event, the County can address any security con-

cerns relating to a particular inmate as an adminis-

trative matter soon after the inmate first requests trans-

portation. If, as in this case, the County has no secur-

ity concerns, the transportation may proceed. If secur-

ity issues exist, the County can inform the inmate, and

solutions may possibly be fashioned. Therefore, we

reject the County’s claim that requiring a court order

satisfies a legitimate penological interest in security.

b. Conservation of County Resources®

¢25 The County asserts that the Policy is necessary

for conservation of County resources. Doe argues that

this argument is more properly addressed under the third

Turner prong regarding whether accommodation will

have a significant impact on prison staff. We agree that

the County’s interest in conservation of prison resources

may directly affect the security, and other resources

available to the jail facilities. We are mindful, however,

that ‘“‘where conditions within a prison facility are

she claims, the County did not raise it in the trial court. Although

the County did not use the specific phrase ‘“‘conservation of re-

sources,” it did discuss in its trial court pleadings that the Policy

limiting transports for elective medical procedures allowed the

County to concentrate on transporting inmates to court appear-

ances and “‘necessary’’ medical appointments. Thus, the County

sufficiently preserved this argument for appeal.

16a

challenged as constitutionally inadequate, courts have

been reluctant to consider costs to the institution a major

factor in determining whether a constitutional violation

exists.”’ Afonmouth, 834 F.2d at 336.

426 The County maintains that the Policy is necessary

to conserve County resources because it limits trans-

ports for non-medically necessary procedures and there-

by ‘“‘allows the [County] to focus on the mandated

transportations, such as transporting inmates back and

forth from court or to medical appointments that are

medically necessary.” The County admits that only

five or six inmates have obtained a court order for

transportation for abortion services since the County

implemented the Policy in 1990. Compared to the num-

ber of transports the County performs for court appear-

ances, compassionate visits, and what it deems necessary

medical care, the demand for transportation for abor-

tion services is de minimis. Moreover, the County pre-

sents no evidence that the cost for these transports sig-

nificantly impacts the County’s security or transporta-

tion costs, nor do we see how it could as the County

requires that inmates transported for non-therapeutic

abortion procedures reimburse the County for security

and transportation costs.’

€27 In addition, it is not clear that the Policy, as

applied to transportation for abortion services, reduces

these costs. As the County must comply with a court

order directing it to transport an inmate for abortion

services, see dolt, 197 Ariz. at 616, §11, 5 P.3d at 950,

“For inmates such as Doe, who are eligible for work fur-

lough release, it is possible that security is unnecessary and the

inmate could arrange her own transportation. This is the kind

of detail the County is best equipped to address.

17a

the Policy does not allow the County to wholly avoid

the costs associated with transports for abortion services.

Further, as Doe points out, if an inmate is unable to

obtain an abortion, the County will expend resources

fulfilling its responsibility to provide her proper pre-natal,

delivery and post-natal medical care, a cost that may

equal or exceed the cost associated with transportation

for abortion services. E.g., Monmouth, 834 F.2d at 341

(stating that accommodation for abortion services im-

poses no greater burden on the government than already

exists under its responsibility to provide proper pre- and

post-natal care to pregnant inmates).

428 Therefore, we find that the evidence does not estab-

lish a logical connection between the Policy and the

County’s objective of conserving its resources.

c. Liability Concerns

429 The County next argues that the Policy reduces

its liability exposure by limiting: (1) liability to third

parties who object to the inmates’ abortion; (2) liability

to third parties for harm caused by an escaping or es-

caped inmate; and (3) liability to the inmate for health

complications that arise before, during or after the abor-

tion. In essence, the County suggests that its liability

exposure is reduced if it “involuntarily” transports an

inmate pursuant to a court order rather than voluntarily

honoring the inmate’s request for transportation.

q 30 The County’s argument that the Policy limits the

County’s liability to third parties who may object to an

inmate obtaining an abortion is unpersuasive. The

County cites no such cause of action that might arise

from its transportation of an inmate for an abortion

procedure, and we know of no civil liability created by

18a

assisting a woman to obtain a legal abortion. Similarly,

the County does not explain how it could be liable to

an inmate for complications arising out of an abortion

procedure performed by a third party medical practi-

tioner selected and compensated by the inmate. These

potential threats of vague or unknown liability are not

sufficient to support the Policy.

¢31 The County’s professed concerns regarding lia-

bility for the conduct of inmates during transporta-

tion are similarly unfounded, as Arizona law exempts

public entities and their employees, in the absence of

intentional conduct or gross negligence, from liability

for injuries “caused by an escaping or escaped pris-

oner.”” A.R.S. §12-820.02(A)(2) (2003); see generally

Clouse v. Arizona Dep’t of Pub. Safety, 199 Ariz. 196,

16 P.3d 757 (2001). We note that this statute renders

the circumstances in this case significantly different

from those present in Victoria W., where applicable

Louisiana law exposed the prison to liability claims

arising from the acts of escaped prisoners, a factor the

court of appeals repeatedly cited as a justification for the

regulation at issue. 369 F.3d at 486-87. Therefore, the

County’s Policy is not reasonably related to its proffered

justification of reducing its liability exposure.

d. Avoiding Violations of Arizona law

432 Finally, the County claims that the Policy advances

its interest in ensuring that jail officials do not violate

Arizona law. Specifically, the County cites A.R.S.

§ 35-196.02 (2000), which states that public funds

8This statute was held to be unconstitutional as applied

to a context and for reasons distinguishable from this case. Simat

Corp. v. Ariz. Health Care, 203 Ariz. 454, 56 P.3d 28 (2002).

19a

may not be “expended for payment to any person or

entity for the performance of any abortion unless an

abortion is necessary to save the life of the woman hav-

ing the abortion.”

433 The County expends no public funds for abortion

procedures as it requires an inmate seeking to terminate

her pregnancy to bear the cost of the abortion services

as well as the related security and transportation costs.

Moreover, if the County’s concern were valid, it would

be in violation of the statute even if a court ordered the

transportation. The record shows, however, that the

County has never opposed an inmate’s request for a

court order requiring it to transport the inmate for abor-

tion services on the basis that the public funds statute

prohibits the transportation of inmates for abortion

services.

434 Thus, we find that the Policy is not reasonably

related to the County’s objective of avoiding violations

of law.

2. Whether Inmates Have Alternative Means To

Exercise Their Right

435 The County argues that we should sustain the

Policy because an alternative procedure allows inmates

to exercise their right to choose to have an abortion;

namely, an inmate may seek an order from the superior

court directing the County to transport the inmate for

an abortion procedure. Doe responds, however, that

because an inmate is unable to obtain an abortion within

the jail facilities, pregnant inmates have no alternative

means to exercise their right to choose to terminate their

pregnancies. To sustain the Policy, we need not find that

inmates’ alternatives are ideal; we need only determine

that alternatives are available. Overton, 539 U.S. at 135.

20a

436 The County contends that the Policy is akin to

the judicial bypass procedure specified in certain state

laws that restrict a minor’s ability to obtain an abortion

without parental consent. Such laws have been held to

be valid if a minor is permitted to petition a court to

obtain authorization for an abortion in lieu of obtain-

ing the requisite parental consent for the procedure. See

Bellotti v. Baird, 443 U.S. 622, 643, 649 (1979); Casey,

505 U.S. at 899; Planned Parenthood of S. Ariz. v.

LaWall, 307 F.3d 783, 7899 (9th Cir. 2002) (holding

Arizona’s judicial bypass provision adequately pro-

tected minors’ right to choose).

437 Regulations affecting minors implicate different

concerns, and may justifiably be broader, than those

applicable to adult women. See Casey, 505 U.S. at 895,

898 (stating that assumptions regarding the need for

consultation that may be reasonably adopted with res-

pect to minors cannot also be applied to adult women

and invalidating statute requiring spousal notification

before abortion procedure); Planned Parenthood of

Cent. Mo. v. Danforth, 428 U.S. 52, 69 (1976) (holding

that the United States Constitution does not permit a

state to require a married woman to obtain her hus-

band’s consent before undergoing an abortion). We are

therefore unpersuaded by the County’s argument that

refusing to transport inmates for an abortion procedure

absent a court order is acceptable because a similar

approach has been held valid when applied to minors.

438 Moreover, we are troubled by the absence of

standards available to guide the superior court when it

reviews an inmate’s request for transportation. Although

the County maintains that the court is not given a veto

over an inmate’s decision to terminate her pregnancy,

it is evident that the court may in fact prevent an inmate

21a

from obtaining an abortion by delaying or denying her

request, thereby functioning as a gate-keeper with the

ability to overrule her choice to have an abortion.’ The

evidence is that the number of such requests is very

low and that the County has never contested an inmate’s

application for such transportation. Requiring a court

order in the first instance for all inmates who desire

access to abortion services unnecessarily limits such

access. While we recognize that the County might

decline to transport an inmate who presents a partic-

ular security or liability concern, an indiscriminate

ban on all transportation for non-therapeutic abortions

does not allow inmates sufficient alternative means to

exercise their right to choose to have an abortion.

3. Impact Accommodation Would Have On Prison

Resources

439 The County argues that making an exception to

the Policy for requests for abortion procedures would

greatly impact prison resources because each time the

County transports a prisoner, extra personnel and re-

sources are required. We agree with Doe that the undis-

puted evidence demonstrates that accommodating in-

mates’ abortion rights would have a de minimis finan-

cial impact on the County’s jail facilities given that the

inmate bears the expense.

440 As discussed, the County regularly transports

inmates for court appearances, compassionate visits and

non-emergency, medically necessary treatment. ‘Trans-

°Our conclusion is further supported by the deposition tes-

timony of Sheriff Arpaio that the County will only transport an

inmate for abortion services pursuant to a court order because it

“‘feel[s}] more comfortable” if a court has issued such an order.

22a

portation for abortion services are a negligible fraction

of the overall transportation the County performs each

year, and there is no evidence that the costs associated

with this transportation are significantly higher than

other transportation. See, e.g, Victoria W., 369 F.3d

at 486-88 (holding regulation requiring inmates to ob-

tain a court order to obtain abortion services served

prison’s proffered economic justification when pris-

oners had to be escorted to a facility located one hour

away). In addition, the County requires inmates to pay

for the costs of security and transportation.

441 We find no evidence that providing transporta-

tion for abortion services without a court order would

significantly and adversely affect County resources.

4. Absence Of Ready Alternatives

442 Finally, although the County contends that there

is no alternative to the Policy, we determine that there

is an obvious, easy alternative that accommodates a

woman’s right to choose to have an abortion and imposes

a de minimis burden on the pursuit of the County’s

stated objectives; namely, the County may consider

inmates’ requests for transportation for abortion ser-

vices at the administrative level, just as it now con-

siders requests for compassionate visits. Any security

or resource issues may be raised and addressed admin-

istratively, without imposing a burdensome requirement

that an inmate first obtain a court order.?° The County

claims expertise on security and resource issues. It

should exercise that expertise. It should be the County

10Indeed, as Doe points out, the Arizona State prison sys-

tem and the Pima County jail system voluntarily transport in-

mates for abortion services.

23a

that, in the first instance, addresses an inmate’s request

for transportation."

CONCLUSION

443 After considering the Turner factors, we conclude

that the Policy represents an “exaggerated response’”’ to

the County’s proffered penological concerns and is

invalid insofar as it applies to transportation for abortion

services. 482 U.S. at 90-91. The evidence demonstrates

that the County can fully accommodate Doe’s abortion

rights at de minimis cost to the penological interests

articulated by the County. The Policy is therefore not

reasonably related to the County’s professed neutral

objectives and is invalid. For the foregoing reasons, we

affirm the superior court’s order.

/s/ Patrick Irvine

PATRICK IRVINE, Presiding Judge

CONCURRING:

/s/ Susan A. Ehrlich

SUSAN A. EHRLICH, Judge

/s/ Margaret H. Downie

MARGARET H. DOWNIE, Judge?”

11The trial court’s order enjoins the County “from dir-

ectly or indirectly enforcing the unwritten policy described above

Or requiring a pregnant inmate in the Maricopa County jails to

obtain a court order before she will be granted transportation to

obtain an abortion.” The superior court will plainly have the

authority to enforce this order if the County unreasonably, or

without reasons, refuses a transportation request.

12The Honorable Margaret H. Downie, Judge of the Mari-

copa County Superior Court, was authorized by the Chief Jus-

tice of the Arizona Supreme Court to participate in the disposi-

tion of this appeal pursuant to the Arizona Constitution, Article

6, Section 3, and A.R.S. §12-145 to -147 (2003).

24a

APPENDIX C

[Filed Oct 31 2005 ]

LEWIS and

ROCA LLP

LAWYERS

40 North Central Avenue

Phoenix Arizona 85004-4429

Facsimile (602) 734-3844

Telephone (602) 262-5307

Jane E. Reddin (012326)

Susan E. Anderson (020343)

Cooperating attorneys for ACLU of Arizona

Attorneys for Plaintiff

SUPERIOR COURT OF ARIZONA

COUNTY OF MARICOPA

No. CV2004-009286

JANE DOE, individually and on behalf of

all others similarly situated,

Plaintiffs,

VS.

JOE ARPAIO, MARICOPA COUNTY SHERIFF,

in his official capacity; MARICOPA COUNTY,

Defendants.

25a

ORDER

In accordance with this Court’s Minute Entry, dated

August 23, 2005, granting Plaintiff's Motion for Sum-

mary Judgment and denying Defendants’ Motion for

Summary Judgment,

IT IS HEREBY ORDERED granting Judgment in favor

of Plaintiff and against Defendants on Plaintiff’s claims

for declaratory and permanent injunctive relief.

IT IS FURTHER ORDERED declaring unconstitu-

tional Defendants’ unwritten policy which requires a

pregnant inmate in the Maricopa County jails who

chooses to terminate her pregnancy to obtain a court

order before she will be transported to obtain an abor-

tion.

IT IS FURTHER ORDERED that Defendants Arpaio

and Maricopa County and their representatives, agents,

employees, or those persons acting in concert or partici-

pation with them, are permanently enjoined from dir-

ectly or indirectly enforcing the unwritten policy des-

cribed above or requiring a pregnant inmate in the Mari-

copa County jails to obtain a court order before she will

be granted transportation to obtain an abortion.

IT IS FURTHER ORDERED that this permanent in-

junction shall remain in full force and effect unless and

until modified by further order of this Court and that

this Court shall retain jurisdiction of this action for the

purpose of implementing and enforcing this final judg-

ment.

IT IS FURTHER ORDERED awarding to Plaintiff

reasonable attorneys’ fees and costs incurred in this

action pursuant to 42 U.S.C. §1988 and A.R.S. §12-

341 and in the amount of $5,760.00 [/s/B.C.S.] for

attorneys’ fees and $2,218.25 for costs.

26a

The Court has resolved all claims against all parties,

and this is a final judgment.

IT IS HEREBY ORDERED that judgment be entered

as set forth herein.

Dated this 27 day of October, 2005.

/s/ Barry C. Schneider

Honorable Barry C. Schneider

Judge of the Superior Court

27a

APPENDIX D

[Filed Aug 25 2005 ]

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2004-009286

08/23/2005

CLERK OF THE COURT

C. Johnston

Deputy

HONORABLE BARRY C. SCHNEIDER

JANE DOE SUSAN ANDERSON

JANE E REDDIN

JOE ARPAIO, et al. JOSEPH I VIGIL

SUSAN L. HABLE

MINUTE ENTRY

Plaintiff’s Motion for Summary Judgment and Defend-

ants’ Cross-motion for Summary Judgment have been

under advisement.

28a

IT IS ORDERED GRANTING Plaintiff’s Motion for

Summary Judgment and DENYING Defendants’ Motion

for Summary Judgment.

As to the issue of mootness, the court agrees with

Plaintiff that given the limited duration of women’s

pregnancies and the limited duration of jail sentences

at the ‘Maricopa County Jail, the mootness doctrine

should not prevent the issues being addressed on their

merits.

As noted by the United States Supreme Court in

Roe v. Wade, 410 U.S. 113, 125 (1973): “Pregnancy

provides a classic justification for non mootness. It truly

could be capable of repetition, yet evading review.”

Plaintiff challenges Defendant Arpaio’s unwritten

transportation policy which requires a court order to

allow transport of an inmate to obtain an abortion. The

policy provides no guidelines for the court to consider

in deciding whether to allow transport or not. Defend-

ants concede that they have never opposed any inmate’s

request for a transport order to obtain an abortion.

Defendants offer a number of purposes to be served

by the policy. Defendants purposes include: (1) secur-

ity of the inmates and others; (2) limiting liability ex-

posure, t.e., liability to third persons who may have an

interest in the unborn fetus or for complications related

to the abortion; and (3) ensuring that Defendants do

not violate the law prohibiting the use of public funds

for an abortion.

There is a question remaining as to the appropriate

test to be used in determining the constitutional issue.

There is the undue burden test articulated in Planned

Parenthood v. Casey, 505 U.S. 833 (1992). Applying

this test, the State may not adopt a regulation that places

29a

a substantial obstacle in the path of a woman seeking an

abortion. In this case, since the Plaintiff was incarcer-

ated, there is the argument that the more restrictive test

of Turner v. Satley, 482 U.S. 18 (1987) applies. The

Turner test looks to whether a regulation reasonably

relates to a legitimate penological interest. The first of

four factors enunciated is whether the regulation has

a ‘“‘valid, rational connection” to a legitimate govern-

ment interest. Turner, 482 U.S. at 89.

Defendants argue that the Turner analysis applies

and rely heavily on the recent fifth circuit opinion in

Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004).

Plaintiff argues that no matter what test is applied the

Defendants’ policy cannot pass constitutional muster.

Plaintiff relies heavily on Monmouth County Correc-

tional Institutional Inmates V. Lanzaro, 834 F.2d 326

(3rd Cir. 1987).

If the undue burden test is applied, Plaintiff argues

that forcing a pregnant inmate to obtain a court order

unduly burdens the inmate. Since abortions are so time

sensitive, any delay will inevitable result in an undue

burden. We need to look only to the facts of this case

to appreciate why this is true. Initially, the request for

a court order was denied. It took several weeks, and

then just before the end of the first trimester, until

the second judge fortunately intervened and signed the

order. The court agrees with Plaintiff that if this test

applied, the policy is unconstitutional.

Even if the Turner test applies, Plaintiff argues that

no reasonable penological purposes are served by the

policy. The court also agrees with this argument.

Applying the Turner test, what is significant to the

court, as pointed out by Plaintiff, is that there is no pol-

icy requiring a court order for the transport of inmates

30a

for special events such as visiting sick relatives, attend-

ing viewings of deceased relatives, or hearing a will read.

How then can there be a reasonable legitimate penolog-

ical interest in the security of inmates if one category of

inmates must obtain a court order and inmates in the

other categories are not similarly restricted? How, also,

can there be a reasonable interest in security if Defend-

ants never oppose a request for a court order for trans-

port and offer the court no guidelines to inform its deci-

sion? The true answer to these questions is that while

Defendants mouth concerns for security, what is actu-

ally at stake is an interest to deflect what may be polit-

ically unpopular decisions and put those decisions at

the feet of the court. Even assuming that this court is

being unduly harsh and skeptical in attributing these

political concerns to Defendants, the court agrees with

the analysis of the majority in Monmouth County that

when the decision to require a court order depends on

the nature of the treatment or reason for transport,

and, not the security risk imposed by the individual

inmate, there is no legitimate penological purpose.

Monmouth County, 834 F.2d at 338.

With respect to the liability concerns of third persons

who may have an interest in the fetus, Defendants argue

that the requirement of a court order eliminates any

exposure. How can that be when these third persons are

not given notice of the request for the transport order?

How can a court order create immunity and be binding

against such third persons when these persons were never

given an opportunity to be heard? The answer is that

the requirement of a court order cannot eliminate what-

ever rights these third persons may have. Perhaps more

importantly, Defendants have no answer to the argument

3la

and authority of Plaintiff that these third persons possess

no right to veto a mother’s decision to abort.

Similarly, the signing of a court order cannot result in

the grant of immunity to the Defendants if complica-

tions arise during or after the procedure.

As to the third purpose, the avoidance of Defendants

violating the law prohibiting expenditure of funds for an

abortion, this concern loses its validity as long as the

inmate arranges to pay for the producers, as occurred in

this case. Also, the law prohibits public funds being

‘‘expended for payment to any person or entity for the

performance of an abortion.” A.R.S. §35-196.02.

Providing transportation is not paying for the perform-

ance of an abortion.

It is noted that another purpose has been offered by

Defendants through the deposition of the sheriff’s direc-

tor of intergovernmental affairs, but not included in

their argument. That deponent also suggested that pro-

tecting the sheriff from adverse publicity justified the

policy. Since this argument has apparently been aband-

oned, there is not need to address it.

As noted, Defendants rely on Victoria W. in which

the fifth circuit upheld the constitutionality of a Louis-

lana prison policy requiring a court order to transport

an inmate for an abortion. Victoria W. is distinguishable

factually. The Plaintiff in that case sued for damages

because she was unable to obtain the court order required

by the County. Summary judgment was granted in favor

of the defendants and affirmed on appeal. The transport

would have involved a one-way, one-hour trip and a

three night stay in the hospital. In this case, abortions

are obtainable locally. In this case, Defendants permitted

transports for other purposes without court order. Not

so in Victoria W.

32a

Even without the factual distinctions, this court finds

the reasoning in Monmouth County more persuasive

than Victoria W.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.