Washington – Issuing its first abortion-related decision under new Chief Justice John Roberts, the Supreme Court refused Monday to stop a prison inmate from getting an abortion at an outside clinic.
The court’s two-sentence order capped five tense days of litigation in which the woman, now 16 weeks pregnant, battled a new Missouri policy forbidding prisons to assist women seeking to terminate their pregnancies, as corrections officials had done in seven previous cases the last eight years.
Late Friday night, Justice Clarence Thomas, who handles emergency applications from the judicial circuit that includes Missouri, had intervened at the state’s request to stop the transfer of the prisoner, who is referred to in the lawsuit as Jane Roe, to a Planned Parenthood office in St. Louis on Saturday. Over the weekend, however, Thomas referred the case to the eight other justices, resulting in the decision announced Monday.
The order came unaccompanied by a published opinion or recorded dissent, so there is no way to tell how many justices, if any, might have voted against the order. Nor is there any way to know why Thomas agreed to a temporary stay after two lower courts had denied one, or what legal arguments ultimately prevailed.
Still, the order does suggest that, under Roberts, a majority of the court was not inclined to rush into a new abortion battle, even when implored to do so by a state where the anti-abortion movement is particularly strong.
The order put renewed attention on the court and abortion cases just as the Senate plans confirmation hearings on White House counsel Harriet Miers, whom President Bush has nominated to replace retiring Justice Sandra Day O’Connor. O’Connor has been the swing voter on key abortion decisions in recent years.
Missouri had asked Thomas to give “heavy consideration” to its policy of “discourag(ing) abortions and encourag(ing) childbirth.”
But the state had to show that that it would face “irreparable harm” if it had to transport the woman. The state said that it would lose the $350 cost of a day’s prison guard salaries, as well as run the risk of an escape or injury to the prisoner, public or guards.
The federal district judge who initially ordered Roe transported for an abortion, Dean Whipple, has said that his ruling only covered the Missouri policy as it applied to her, and that he will hear arguments and decide the constitutionality of the policy generally later this fall. That case eventually could land in the Supreme Court.
