Opposition Brief — Arpaio v. Doe (No. 07-839)

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No. 07-839 ff ELE

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FES 20 2298

IN THE

OFFICE Go THY CO ERK

Supreme Court of the United: States?

os

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 FORA WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS

RESPONDENTS’ BRIEF IN OPPOSITION

SUSAN M. FREEMAN BRIGITTE AMIRI

KRISTINA HOLMSTROM Counsel of Record

Lewis and Roca LLP TALCOTT CAMP

40 North Central Avenue LOUISE MELLING

Phoenix, Arizona 85004-4429 STEVEN R. SHAPIRO

(602) 262-5311 American Civil Liberties

Union Foundation

125 Broad Street, 18th Floor

New York, New York 10004

(212) 549-2633

DANIEL POCHODA

American Civil Liberties

Union of Arizona

P.O. Box 17148

Phoenix, Arizona 85011

(602) 650-1967

Counsel for Respondents

QUESTION PRESENTED

Whether the Arizona Court of Appeals

properly held that Maricopa County's unwritten

policy prohibiting the transportation of inmates for

the purpose of obtaining non-therapeutic abortions

violated the Fourteenth Amendment?

RULE 29.6 DISCLOSURES

None of the Respondents in this action has a

parent corporation or any stock owned by publicly

held corporations.

TABLE OF CONTENTS

QUESTION PRESENTED .................0.00..00..0:02:0005- I

RULE 29.6 DISCLOSURE ..................... piientpeaiapad i

TABLE OF AUTHORITIES ....................eccessseseees 1V

STATEMENT OF THE CASE......................:2000008 ]

REASONS FOR DENYING THE WRIT............... 5

I. The Arizona Court of Appeals

Correctly Held the Policy

Unconstitutional Under the

Fourteenth Amendment. ....................... 7

II. The County Has Identified No

Conflict Among the Courts of

Appeals on the Applicable Legal

Standard for Evaluating Prison

Policies That Ban Abortion. ................ 16

POA Rp MIRE ei cnsncdiasglavnsrossbinbinccedeceluny iemibes igauens 19

TABLE OF AUTHORITIES

CASES

Bellotti v. Baird, 443 U.S. 622 (1979) ........... eee 15

Black v. Cutter Laboratories,

ee ci ea as tess rciéceto sare sdss dna ew bieigeamavatee 18

California v. Rooney, 483 U.S. 307 (1987) ................. 18

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983), overruled in part on

other grounds by Planned Parenthood

of S.E. Pa. v. Casey, 505:U.S. 833 (1992).................... 15

Cox v. New Hampshire, 312 U.S. 569 (1941)............. 10

DeShaney v. Winnebago County Department

of Social Services, 489 U.S. 189 (1989)............000... 15

Doe v. Barron,

92 F. Supp. 2d 694 (S.D. Ohio 1999) ....0.......... 16, 18, 19

General Council on Finance and Admininistration

of the United Methodist Church vu. Superior Court

OCanfornia, 439-U.S. 1365 (C1978) ............ccc0cccccceseres 17

Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

Me ar I io pok nats snc cap ceseppenmmacimniaaniss 17

Izumi Seimitzu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27 (19938)...............---s.ssecccensoes 17

Monmouth County Correctional Institutional

Inmates v. Lanzaro,

B34 F.26 S25 Ga Cir. 1987) .............2.....00000002 6, 16, 18, 19

Mullaney v. Wilbur, 421 U.S. 684 (1975) .......0.. ee 10

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...... 7

Overton v. Bazzetta, 539 U.S. 126 (2003) ........... 7, $33

Planned Parenthood of Central Missouri v.

pT OS EE BOE Fe Ly |) ae 12,14

Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992).......... 4,12

Roe v. Crawford, — F.3d —.,

2008 WL 187513 (8th Cir. Jan. 22, 2008),

petition for rehearing filed,

No. 06-3108 (Feb. 5, 2008)............................. 6, 16, 18, 19

Roe v. Leis, No. C-1-00-651,

2001 WL 1842459

i) 16, 18,19

moe uv. Wade, 410 U.S. 113 (19798)..............c....0c.c0cecccesseees 4

Turner v. Safley, 482 U.S. 78 (1987)...............0006. passim

Victoria W. v. Larpenter,

ee eee Ee Ce CE, BO) ons ncccccccccscssccceces 6, 16, 19

STATUTES

Ariz. Rev. Stat. § 35-196.02, held unconstitutional in

part on other grounds, Simat Corp. v. Arizona Health

Care, 203 Ariz. 454, 56 P.3d 28 (2002).............. enna 10

Vv)

STATEMENT OF THE CASE

This case involves a challenge to Petitioners’

unwritten policy that bans inmates from obtaining

abortions by refusing to transport them to an

abortion provider, unless the abortion is necessary to

save the inmate’s life or health (hereinafter “the

Policy”). Before the lower court enjoined this

practice, the only way an inmate could obtain an

abortion was to find a lawyer and convince a court to

order Petitioners (hereinafter collectively “the

County”) to transport her for the procedure. The

County developed this Policy in 1990 in direct

response to an inmate’s request for an abortion.!

The County did so despite its ongoing practice of

frequently transporting prisoners off-site without a

court order for medical and non-medical reasons,

including to visit dying relatives and attend funerals.

Pet. App. 14a.

Both courts below, the Arizona Superior Court

and the Arizona Court of Appeals, held the Policy

unconstitutional under the Fourteenth Amendment,

and both rejected the County’s claim that the Policy

serves legitimate interests in maintaining security,

conserving prison resources, and avoiding liability.

First, these courts found that transport outside the

1 The County developed the Policy because it was concerned

about “adverse publicity,” “political problems,” and “media

ramifications to an elected official” that it feared could stem

from transporting an inmate in need of abortion care. (R 29 Ex.

9 at 17:18-21:6; see also R 29 Ex. 7 at 39:3-11.) The Policy

applies on its face to all “elective” medical care, but Ms. Doe

challenged it and the lower courts enjoined it only insofar as it

is applies to requests for transportation for abortion. Pet. App.

23a & n.11.

Policy violated the Fourteenth Amendment under

either the test enunciated in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992), for evaluating abortion restrictions outside

the prison context, or the test in Turner v. Safley, 482

U.S. 78 (1987), for evaluating prison regulations

alleged to impinge on inmates’ constitutional rights.’

Pet. App. 29a-30a. In applying Jurner, the trial

court concluded that “when the decision to require a

court order depends on the nature of the treatment

or reason for the transport, and, not the security risk

imposed by the individual inmate, there is no

legitimate penological purpose.” Pet. App. 30a. The

court explained:

How then can there be a reasonable

legitimate penological 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 Defendants never oppose a

request for a court order for transport

and offer the court no guidelines to

inform its decisions?

Id.

being addressed on their merits.” Pet. App. 28a (citing Roe v.

Wade, 410 U.S. 113, 125 (1973)).

7 Ms. Doe challenged the Policy under the Fourteenth

Amendment, the Eighth Amendment, and the Arizona

Constitution, but the lower courts only reached her Fourteenth

Amendment claim.

In affirming, the Arizona Court of Appeals

first held that the Policy should be tested solely

under Turner, not Casey. Like the trial court, it then

rejected the County’s effort to justify its Policy on

security grounds:

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 interests.

Pet. App. 15a. The court similarly determined that

the Policy was unrelated to the County’s other

proffered interests, such as reducing hability and

conserving resources, and also held that the other

aspects of the Turner test weighed in favor of Ms.

Doe. See infra at 9-14. Ultimately, the court held

that the Policy was not “reasonably related to the

County’s professed neutral objectives” and concluded

that “the Policy represent[ed] an ‘exaggerated

response’ to the County's proffered penological

concerns.” Pet. App. 23a (quoting Turner, 482 U.S.

at 90-91). The Arizona Supreme Court declined to

review the case. Pet. App. 2a.

REASONS FOR DENYING THE WRIT

The Court should decline to review this case

for two reasons. First, the Arizona Court of Appeals

correctly held the Policy unconstitutional under the

Fourteenth Amendment. The court held that the

Policy failed the test most deferential to the County —

the Turner test — and in doing so, properly applied

this Court's jurisprudence to the facts of this case. If

the Policy were reviewed under Casey’s undue

burden test, it would — a fortiori — fail that less

deferential test as well. In asking this Court to

resolve whether Casey provides a threshold standard

that must be satisfied before Turner is applied, the

County is seeking a purely advisory opinion since the

answer to that question will have no bearing on the

outcome of this case.

Second, review is not warranted because there

is no split among the courts about the proper legal

standard to use to assess policies that block inmates’

access to abortion. Although the County claims that

there are considerable’ differences between

Monmouth County Correctional Institutional Inmates

v. Lanzaro, 834 F.2d 326 (3d Cir. 1987), and Victoria

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

courts plainly applied the same legal standard, and

simply reached different outcomes based on the

different facts in each case. Such fact-bound

inquiries do not meet this Court’s standards for

granting review. Accordingly, the petition for

certiorari should be denied.

> Since the County filed its petition, the Eighth Circuit decided

Roe v. Crawford. In that case, the court — applying the same

legal standard — held that Missour’s policy of prohibiting

transportation for inmates’ abortions violated the Fourteenth

Amendment. — F.3d — , 2008 WL 187513 (8th Cir. Jan. 22,

2008), petition for rehearing filed, No. 06-3108 (Feb. 5, 2008).

1. The Arizona Court of Appeals Correctly

Held the Policy Unconstitutional Under

the Fourteenth Amendment.

The court below properly determined that the

Policy violated the Fourteenth Amendment. The

court held that the Policy should be evaluated solely

under the Turner test,9 and it applied Turner in a

manner consistent with this Court's precedents.

Contrary to the County’s claim, the court afforded

the proper level of deference to the County’s

judgment. Indeed, the court specifically recognized

its duty to defer to the professional judgment of the

prison administrators, relying on this Court’s

decision in Overton v. Bazzetta, 539 U.S. 126, 132

(2003). Pet. App. 12a-13a. At the same time, the

court recognized the irony of the County’s insistence

on such deference in this case, given that the County

has — via the Policy — abdicated its professional

judgment and shifted its responsibility to the courts:

8 The County incorrectly contends that Ms. Doe must first

satisfy the Casey test, and then satisfy the Turner test in order

to prevail. See, e.g., Pet. Br. at 5. The Arizona Court of Appeals

correctly rejected this approach. Pet. App. 9a n.5. Indeed, this

Court has never held that an inmate bringing a constitutional

challenge to a prison policy must satisfy two separate tests —

the test that applies outside the prison context, in addition to

the Turner test - in order to obtain relief. Rather, in those

cases in which the Court determined that Turner applies, it has

evaluated the challenged prison practice solely under the

Turner test. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S.

342, 349 (1987); Turner, 482 U.S. at 81. Even if correct,

moreover, the County’s two-step analysis would not alter the

outcome of this case and thus does not warrant plenary review:

inasmuch as the Policy fails even the most deferential test, the

Turner test, it must, ipso facto, fail the stricter Casey test. See

also infra at. 14-15.

7

[I]n this case the County has

effectively 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.

Pet. App. 13a. See also Pet. App. 22a (“The County

claims expertise on security and resource issues. It

should exercise that expertise.”).

In analyzing the first Turner prong, whether

the Policy bears a rational connection to legitimate

penological interests, the Arizona Court of Appeals

noted that the County’s interest in security and

safety was legitimate. See Pet. App. 13a (citing

Overton, 539 U.S. at 133). After examining the

record, however, including the fact that the County

transports inmates offsite approximately once a week

for a variety of nonmedical reasons without a judicial

order, in addition to multiple medical transports

each week, R 29 Ex. 8 at 31:14-16, 35:15-17, the court

found that there was “no evidence in the record that

an increased risk of a security breach exists when the

County transports an inmate for a non-therapeutic

abortion compared to transportation for any other

reason.” Pet. App. 14a. Moreover, the court

recognized:

[T]he County acknowledged that

transporting inmates for abortion

services iS no more secure if done

pursuant to court order ... rather

than voluntarily. . . . 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

interests.

Pet. App. 14a-15a. Accordingly, following Turner,

the court held that the Policy could not be sustained

because “the logical connection between the

regulation and the asserted goal is so remote as to

render the policy arbitrary or irrational.” Pet. App.

14a (quoting Turner, 482 U.S. at 89-90).

The court similarly found that the County's

other proffered interests — conserving prison

resources, avoiding hiability, and complying with

Arizona’s ban on the use of state funds for abortion —

bore no relationship to the Policy. As to the interest

in conserving prison resources, the court rejected the

County’s argument as unsound:

[I]t is not clear that the Policy, as

applied to transportation for abortion

services, reduces ... costs. As the

County must comply with a court

order directing it to transport an

inmate for abortion services, .. . the

Policy does not allow the County to

wholly avoid the costs associated with

transports for abortion services.

Pet. App. 16a-17a.

The court also held that the County’s interest

in avoiding liability was not related to the Policy.

The County suggested that, somehow, a ccurt order

could insulate it from liability to third parties who

objected to the inmate’s abortion; liability to the

inmate for any health complications related to the

abortion; and habuility to a third party for harm

caused by an escaped inmate. The Arizona Court of

Appeals properly found these arguments

unpersuasive, reasoning that there is no cause of

action for assisting an adult woman obtain a legal

abortion; it is inexplicable how the County could be

lable for complications arising from a procedure

performed by a third party medical practitioner

selected and compensated by the inmate; and

Arizona law insulates public employees for the acts of

escaping or escaped inmates, absent intentional

conduct or gross negligence. Pet. App. 17a-18a.

The court similarly found no connection

between the Policy and the County’s interest in

complying with the state law that prohibits the use

of state funds for abortions: an inmate pays for the

abortion herself, and bears the cost of security and

transport for the abortion.!© The court went on to

10 The statute prohibits public funds from being used for “the

performance of any abortion unless an abortion is necessary to

save the life of the woman having the abortion.” Ariz. Rev.

Stat. § 35-196.02, held unconstitutional in part on other

grounds, Simat Corp. v. Ariz. Health Care, 203 Ariz. 454, 56

P.3d 28 (2002). The Arizona courts in this case have

determined that the state law does not in fact prohibit prison

officials from voluntarily transporting inmates for abortions.

That state court determination of a state law question is

binding on this Court. See, e.g., Mullaney v. Wilbur, 421 U.S.

684, 691 (1975) (state courts are the “ultimate expositors of

state law”); Cox v. New Hampshire, 312 U.S. 569, 573-78 (1941).

In addition, other major prison systems in Arizona, such as the

Arizona State and Pima County prison systems, voluntarily

transport inmates for non-therapeutic abortions, see Pet. App.

22a n.10, further demonstrating that the abortion funding ban

10

note the inherent inconsistencies in the County’s

position:

[Ijf the County’s concern were valid, it

would be a 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 abortion services on the

basis that the public funds statute

prohibits the transportation of

inmates for abortion services.

Pet. App. 19a. The Arizona Court of Appeals,

following this Court’s precedents, therefore found

that the Policy did not bear a reasonable relationship

to any legitimate penological interest. !!

In considering the second Turner factor,

whether inmates have an alternative means to

exercise their rights, the Arizona Court of Appeals

again followed this Court’s jurisprudence in

recognizing that to sustain the Policy it need only

determine that there is such an alternative, even if it

is not ideal. Pet. App. 19a (citing Overton, 539 U.S.

at 135). The evidence demonstrated, however, that

does not prohibit prisons from transporting inmates for this

purpose.

11 The County inexpl. ably argues that once the lower courts

“found a rational connection between the Policy and the

interests offered to justify it, its inquiry should have ended.”

Pet. Br. at 20. The lower courts, however, never found a

rational connection between the Policy and any of the Count)

asserted interests.

there was no alternative means for inmates to obtain

an abortion. In so holding, the court rejected the

County’s argument that the purported availability of

a court order was an alternative avenue.!2 First, the

court recognized that requiring an adult inmate to

petition a court could not be compared to the judicial

bypass procedure that is available as an alternative

to minors who must comply with parental consent or

notice laws. The court held that “[rjJegulations

affecting minors implicate different concerns, and

may justifiably be broader, than those applicable to

adult women.” Pet. App. 20a (citing Casey, 505 U.S.

at 895, 898, and Planned Parenthood of Cent. Mo. v.

Danforth, 428 U.S. 52, 69 (1976)). Second, the court

correctly held that under the Policy, a court may, as

the sentencing commissioner initially did here,

“prevent an inmate 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.”!3 Pet. App. 20a-21a.

Indeed, Petitioner Sheriff Arpaio testified that he has

“no idea” whether a court will grant an inmate’s

request for an abortion and conceded that “{t]he gal

may have the baby by the time it gets through the

12 This argument is also in tension with the County’s claim that

the Policy serves such interests as security, safety, and

conservation of resources ~ the Policy can only further those

interests if the inmate is never transported for the abortion. It

is accordingly disingenuous for the County to simultaneously

claim that the inmate has an alternative means to exercise her

right via the courts.

13 The court also looked to the deposition of Petitioner Sheriff

Arpaio, in which he testified that the County will not transport

an inmate for an abortion absent a court order because it “feels

more comfortable” if a court has issued an order. Pet. App. 2la

n.9.

12

court system.” (R 29 Ex. 10 at 27:4-7, 33:7-22.)

Ultimately, the court held that “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.” Pet. App. 21a.

The Arizona Court of Appeals’ analysis under

the third Turner prong — the impact on prison

resources if the right is accommodated — is also

consistent with this Court’s precedents. The court

found that “the undisputed evidence demonstrates

that accommodating inmates’ abortion rights would

have a de minimis financial impact on the County’s

jail facilities given that the inmate bears the

expense.” Pet. App. 2la. The court recognized that

transportation for abortion services is a “negligible

fraction” of the overall transports the County

performs each year for court appearances, visits to

dying relatives, or other medial treatment; indeed,

the County has transported only 5 or 6 inmates for

abortions since the Policy's inception in 1990. Pet.

App. 21a-22a; see also id. at 16a. The court found “no

evidence that the costs associated with [abortion]

transportation are significantly higher than other

transportation.” Pet. App. 22a. Moreover, the costs

associated with transporting an inmate pursuant toa

court order are the same as the costs of transporting

her voluntarily. See Pet. App. 16a-17a. Ms. Doe was

willing to pay these costs. See supra at 3 n.4.

Accordingly, the court’s conclusion that

accommodating the right to abortion would have a

minor impact on prison resources comports with this

Court’s jurisprudence. See Turner, 482 U.S. at 90.

Finally, the Arizona Court of Appeals properly

applied the fourth Turner prong: whether there is

evidence of an obvious, easy alternative. The court

found that the County could easily “consider inmates’

requests for transportation for abortion services at

the administrative level, just as it considers requests

for compassionate visits. Any security or resource

issues may be raised and addressed administratively

” Pet. App. 22a. This holding is consistent with

Turner’s guidance: “if an inmate claimant can point

to an alternative that fully accommodates the

prisoners rights at de minimis cost to valid

penological interests, a court may consider that as

evidence that the regulation” is not reasonable. 482

U.S. at 91.

Upon consideration of all the Turner factors,

the Arizona Court of Appeals concluded that the

Policy “represents an ‘exaggerated response’ to the

County’s proffered penological concerns,” and _ it

affirmed the trial court’s decision holding the Policy

unconstitutional under the Fourteenth Amendment

as applied to abortion. Pet. App. 23a (quoting

Turner, 482 U.S. at 90-91).

A fortiori, the Policy constitutes an undue

burden under Casey because it imposes a unique and

onerous judicial approval requirement for abortions,

and because of the delays inherent in seeking such

approval, which are illustrated in this case. This is

not an issue of the permissibility of a brief delay, but

of an absolute ban an inmate can circumvent only by

obtaining a court order. Importantly, the Policy

allows a court to veto an inmate’s decision to obtain

an abortion — as the sentencing commissioner did

here — in direct conflict with this Court’s precedents.

See, e.g., Danforth, 428 U.S. at 69 (holding that a

state cannot veto a woman’s abortion decision or

14

delegate veto power to anyone).!4 This Court has

also recognized the constitutional significance of

forcing a woman to delay an abortion for an

indefinite period — in this case seven weeks — which

obviously can lead to the decision being made by

“default.” See Bellotti v. Baird, 443 U.S. 622, 642-43

(1979).15

In short, the court below reached the right

result, and that result does not depend on whether

the facts in this case are analyzed under Turner,

Casey, or some combination of both tests.

Accordingly, the decision to strike down the Policy

14 The court’s veto power is exacerbated by the absence of

standards guiding the consideration of inmates’ motions.

Although the existence of such standards would not render the

Policy constitutional, the lack of standards highlights the

court’s absolute discretion to grant or deny the inmate’s request

on whatever grounds the judge chooses. Cf., e.g., City of Akron

v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 439-41 (1983)

(parental involvement ordinance unconstitutional because its

judicial bypass was devoid of standards to guide judges),

overruled in part on other grounds by Casey, 505 U.S. 833.

15 The abortion funding cases relied upon by the County in

claiming that the Policy does not create an undue burden, Pet.

Br. at 6-9, are inapposite in any event. The County requires

inmates to pay for transportation and security costs, as well as

the abortion itself, and Ms. Doe did not challenge that

requirement. See supra at 3 n.4. Moreover, the fact that the

government can decline to facilitate non-therapeutic abortions

outside the prison context does not mean that a prison can

refuse to transport an inmate for this purpose where, as here,

there is no penological reason for refusing to do so. See

DeShaney v. Winnebago County Dept of Soc. Serus., 489 US.

189, 199-200 (1989) (“when the State takes a person into its

custody . . . the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and general

well-being’).

under the Fourteenth Amendment was correct,!® and

does not merit plenary review by this Court.

Ei. The County Has Identified No Conflict

Among the Courts of Appeals on the

Applicable Legal Standard for Evaluating

Prison Policies That Ban Abortion.

Although the County attempts to create the

appearance of a split — between the Arizona Court of

Appeals and the Third Circuit on the one hand, and

the Fifth Circuit on the other — each of those courts,

like every other court to consider prison policies

restricting abortion, has applied the same legal

standard: the Turner test. Crawford, 2008 WL

187513, at *2; Victoria W., 369 F.3d at 484-85;

Monmouth, 834 F.2d at 331-32; Roe v. Leis, No. C-1-

00-651, 2001 WL 1842459, at *2 (S.D. Ohio Jan. 10,

2001); Doe v. Barron, 92 F. Supp. 2d 694, 596 (S.D.

Ohio 1999) (following Monmouth’s application of

Turner). Thus, contrary to the County’s argument,

the Fifth Circuit in Victoria W. did not take a

“fundamentally different approach to .. . Turner,”

Pet. Br. at 13. Rather, it applied Turner to the

particular facts before it, and reached a result

different from the result here and in Monmouth, the

Third Circuit case. Indeed, the Victoria W. court

itself distinguished Monmouth as “rest[ing] on

different facts.” 369 F.3d at 487.

16 The County's attempt to conflate the Fourteenth and Eighth

Amendment claims is unavailing. See Pet. Br. at 11. The

courts below rested their decisions solely and independently on

the Fourteenth Amendment.

16

Challenges to prison regulations under Turner

are inherently fact-dependent because prison

administration is not uniform from facility to facility.

Hence, were this Court to review the decision below,

it would almost certainly announce no new legal

principle. Where, as here, lower courts have

uniformly interpreted this Court’s precedent as

establishing the applicable legal standard, the fact

that a lower court reaches a different result based on

a particular evidentiary record does not warrant

plenary review by this Court. See Inwood Labs., Inc.

v. Ives Labs., Inc., 456 U.S. 844, 859 (1982) (White,

J., concurring) (noting that certiorari would have

been unwarranted if sole issue had been whether

established legal standard was properly applied to

facts); Gen. Council on Fin. and Admin. of the United

Methodist Church v. Superior Court of Ca., 439 U.S.

1355, 1373-74 (1978) (Rehnquist, Circuit Justice)

(denying stay, noting that a grant of certiorari would

be unlikely because the question raised “depend[ed]

on the particular facts of each case,” and there was

no indication that the lower court failed to invoke the

proper, established legal standard); cf. Jzumi

Seimitzu Kogyo Kabushiki Kaisha v. U.S. Philips

Corp., 510 U.S. 27, 33-34 (1993) (per curiam)

(refusing to review a fact-bound tissue because no new

standard of law would emerge).

It is also unsurprising that the court below

reached the same result as the Third Circuit in

Monmouth, and one different from the Fifth Circuit

in Victoria W., because the record below is analogous

to the former, and different from the latter. See Pet.

App. 16a, 17a, 18a, 22a. For example, the court

below found — as did the Monmouth court — that

conservation of costs could not justify the Policy

17

because “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.” Pet. App. 17a

(citing Monmouth, 834 F.2d at 341). In contrast,

while the court below relied heavily on the fact that

the County routinely transports inmate offsite,

without a court order, for nonmedical reasons such as

to attend funerals, Pet. App. 14a, no similar

evidence was presented in Victoria W. That these

factual distinctions led to different outcomes is

unremarkable.

Moreover, with the exception of the courts in

Victoria W., every other court to consider policies

restricting or prohibiting inmates’ access to abortion

has held that such policies violate the Fourteenth

Amendment. Crawford, 2008 WL 187513;!7

Monmouth, 834 F.2d 326; Leis, 2001 WL 1842459;

Barron, 92 F. Supp. 2d 694. Victoria W. is therefore

properly evaluated as an outlier, and is also

premised on faulty legal reasoning.'8 The Victoria

17 In striking down Missouri’s ban on abortions for inmates, the

Crawford court noted, in dicta, that a court-order policy like the

one in Victoria W. might be an alternative way to allow inmates

access to abortion. 2008 WL 187513, at *6. This dicta is not

binding; does not stand for the proposition that ail court-order

policies are reasonable under Turner; is not based on evidence

before that court; and therefore creates no conflict among the

circuits. Cf. California v. Rooney, 483 U.S. 307, 311 (1987)

(“This Court ‘reviews judgments, not statements in opinions.”

(quoting Black v. Cutter Labs., 351 U.S. 292, 297 (1956))).

18 While Victoria W. is an outlier, not even that decision

embraces a position so radical as that of the County: that the

right to abortion simply does not survive incarceration, see, e.g.,

Pet. Br. at 5, 10, 12, and thus abortion may be banned for

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W. court held that a court-order requirement would

serve security interests by reducing the number of

transports. But the only way such a policy could

reduce the number of transports 1s if the requests for

court orders were denied, and inmates were barred

from obtaining abortions. That would constitute an

absolute ban on abortions for inmates, which the

Victoria W. court implicitly -— and correctly —

acknowledged would be unconstitutional. See, e.g.,

369 F.3d at 483-84. Under that court’s own

reasoning, therefore, the court-order requirement

serves no purpose at all. But the fact that Victoria

W. was wrongly decided does not warrant plenary

review of this case, especially given that the court

below reached the correct result.

The County has therefore not identified a split

among the courts of appeals that warrants this

Court’s resolution. Accordingly, this Court should

decline to review this case.

CONCLUSION

For the foregoing reasons, the County’s

petition for a writ of certiorari should be denied.

inmates. Every court to consider prison policies restricting

abortion has determined, either implicitly or explicitly, that the

nght to abortion survives incarceration. Crawford, 2008 WL

187513, at * n.2; Victoria W., 369 F.3d at 483-84; Monmouth,

834 F.2d at 334 n.11: Lets. 2001 WL 1842459, at *3; Barron, 92

F. Supp. 2d at 696.

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Respectfully submitted,

BRIGITTE AMIRI

Counsel of Record

TALCOTT CAMP

LOUISE MELLING

STEVEN R. SHAPIRO

American Civil Liberties

Union Foundation

125 Broad Street, 18th Floor

New York, New York 10004

(212) 549-2633

SUSAN M. FREEMAN

KRISTINA HOLMSTROM

Lewis and Roca LLP

40 North Central Avenue

Phoenix, Arizona 85004

(602) 262-5311

DANIEL POCHODA

American Civil Liberties

Union of Arizona

P.O. Box 17148

Phoenix, Arizona 85011

(602) 650-1967

February 20, 2008

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