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Prisoners Don't Lose Abortion Rights:

So holds the Eighth Circuit, in my view quite rightly, given the Court's abortion rights caselaw. Prisoners understandably have to lose plenty of rights, whether because of prison security needs or because the loss of the right is part of the punishment. But accepting (as the Eighth Circuit must) that the Court has held that women have the right to choose an abortion, there's no substantial basis for restricting those rights this way; the Circuit's fairly detailed analysis of the state's various arguments strikes me as quite persuasive.

Dave N (mail):
Norma McCorvey was incarcerated in Missouri in 2006? Who knew?
1.22.2008 3:50pm
Dave N (mail):
On a serious note, while I believe that abortion policy should be left to the states, under controlling Supreme Court precedent, the 8th Circuit was both correct and persuasive in its analysis.
1.22.2008 3:51pm
DangerMouse:
How could they have found otherwise? It's right there, in plain black in white, under the Abortion Amendment to the Constitution.

I must have an old copy of the Constitution with me, though, because I can't find it here. Just give me a minute...
1.22.2008 4:01pm
Houston Lawyer:
Isn't it the current law that a woman can abort her pregnancy at any time until the baby is delivered or partly delivered?

Or more broadly asked, is there any circumstance in which a woman is not allowed to abort her unborn child?
1.22.2008 4:04pm
Dave N (mail):
DangerMouse,

I didn't say I agreed with the Supreme Court's abortion jurisprudence. I heartily disagree with it, since it "constitutionalized" what is, in reality, a political issue. However, the Eighth Circuit does not have the authority to disregard Supreme Court precedent--and based on the precedent it was obliged to follow, the ruling was both persuasive and correct.
1.22.2008 4:17pm
Dave N (mail):
Houston Lawyer wrote:
[I]s there any circumstance in which a woman is not allowed to abort her unborn child?
Yes, if she cannot afford one. The Supreme Court has held that we, as taxpayers, are not required to pay for them.
1.22.2008 4:25pm
DangerMouse:
Or more broadly asked, is there any circumstance in which a woman is not allowed to abort her unborn child?

Unborn? Up until 2002, abortion extended past birth. That was the reason for the Born alive infant protection act of 2002. If, during an abortion, a child was born, it was left to die and/or killed once outside the womb. Federal law now makes that illegal.
1.22.2008 4:26pm
PaulK (mail):
Of course the 8th Circuit has that authority. It says "no" and issues the decision. It's even justifiable on the entirely reasonable basis that the common-law doctrine of stare decisis applies only to common-law cases and not to those of constitutional interpretation. I've heard the term "mandatory authority" bandied about around a million times in law school, but haven't once heard any justification for its existence. Besides, nobody has cared whether a court has the authority to do a thing or not in at least 40 years. It's not as if anyone's going to get impeached.
1.22.2008 4:26pm
Arkady:

...I believe that abortion policy should be left to the states...


I'm curious. Since Roe depended on Griswold(as I understand it), do folks who think the above also think that contraception policy should be left to the states?
1.22.2008 4:49pm
Bob from Ohio (mail):

Since Roe depended on Griswold(as I understand it), do folks who think the above also think that contraception policy should be left to the states?


Sure. There is likewise no Contraceptive Amendment to the Constitution.
1.22.2008 4:54pm
Cornellian (mail):
Sure. There is likewise no Contraceptive Amendment to the Constitution.

There are, however, multiple amendments dealing with deprivations of liberty.
1.22.2008 5:02pm
Lake (mail):

The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
1.22.2008 5:25pm
alkali (mail):
Isn't it the current law that a woman can abort her pregnancy at any time until the baby is delivered or partly delivered?

No. Under Planned Parenthood v. Casey (1992), after viability -- 22 or 23 weeks -- the state may entirely ban abortion except if the woman's life or health is endangered. Many (and, IIRC, most) states do so.
1.22.2008 5:32pm
Sasha Volokh (mail) (www):
Arkady: That's not even a difficult question. The main argument against Roe is that substantive due process is an incorrect doctrine. This would straightforwardly imply that Roe, Griswold, Lawrence, the Supreme Court's punitive damages jurisprudence, Lochner, etc., also I guess Pierce v. Society of Sisters, Troxel v. Granville, and of course Dred Scott are incorrect.
1.22.2008 5:35pm
cjwynes (mail):
An inmate doesn't have the right to ELECTIVE surgery, does she? She just has the right to medically necessary abortions, is that all it's saying? If so, that's not that controversial. But if they're suggesting she has the right to elective surgery, then what's next, sex-change operations?
1.22.2008 5:38pm
DangerMouse:
I found it! The Abortion Amendment:

Amendment No. X.X.X. (the SEXY amendment!)

"Section 1. Abortion is, has, and always will be a fundamental right! This amendment cannot be repealed by any other amendment, and cannot be interpreted wrongly by the Supreme Court!

Section 2. Any woman can murder her unborn child any time, for any reason, by any means, under any circumstances. The Government shall pay for all abortion expenses, including all medical bills incidental to and barely related to an abortion, including all expenses (including travel expenses and meals) and any other costs involved in GETTING PREGNANT, AND THEN KILLING YOUR BABY. And then, for any other expenses the girl can think of afterwards.

Section 3. This amendment also means that all contraception is a fundamental right too, and that the state has to pay for that, for all women (men excluded, because they're jerks if they can't buy protection).

Section 4. The First Amendment, to the extent it involves talking against or about abortion by pro-lifers, is repealed. Any speech/images/nuances involved against abortion, such as protesting abortion clinics and talking about evil doctors, is unprotected speech and is prohibited and is subject to mandatory imprisionment, fees, charges, and stoning.

Section 5. The Glories of Abortion shall be taught in all public and private grade schools. In fact, private grade schools are now illegal, since they're usually run by religious fundamentalists who don't like abortion. Except for those snotty New England private grade schools, since people like John Kerry get to go there.

Section 6. If an abortion is performed and the baby is accidentally born alive, the doctors have a right to kill it, unless the mother wants to personally snuff it out. No baby born alive shall be kept alive if the mother originally wanted an abortion. Changing your mind isn't allowed, either, because no woman changes her mind about an abortion. It's also illegal to say that a woman can change her mind about an abortion, or have regrets.

Section 7. Having regrets about an abortion is hereby outlawed also.

Section 8. If an unborn child is killed by someone without the consent of the mother, like if she's stabbed or is in an auto accident or something, then the mother has all legal rights to sue for damages to her unborn baby. But if she beats her belly with a bat, then that's ok. Unless if she tells her boyfriend to do it, in which case she can call the cops on him if she breaks up with him later on.

Section 9. This Amendment shall be referred to as the GREATEST AMENDMENT EVER, IN THE HISTORY OF THE ENTIRE CONSTITUTION. It shall be cited that way by all lawyers and scholars, and everyone else.

Section 10. The Court must interpret this amendment in the broadest, most snarky way possible. Of course, bringing a case against abortion is illegal now, because of Section 4, but I thought I'd mention Court interpretation here just to make sure."


That's the Abortion Amendment to the Constitution. Isn't it in your copy?
1.22.2008 5:39pm
Sasha Volokh (mail) (www):
Houston Lawyer: As alkali says, go to Planned Parenthood v. Casey, whose whole point was to (while upholding the "core" of Roe v. Wade) uphold various restrictions on abortion (by adopting an "undue burden" analysis). Casey itself struck down spousal notification but upheld a waiting period, informed consent, and parental notification requirements, and also said that abortion can be banned entirely after viability.
1.22.2008 5:40pm
Dave N (mail):
Today's case is Roe v. Crawford and today is the 35th Anniversay of Roe v. Wade (the plaintiff in each is identified as "Jane Roe"). I wonder if the timing is coincidental or if someone at the Eighth Circuit had too much time on his or her hands and planned this.
1.22.2008 5:43pm
The Cabbage (mail):
However, the Eighth Circuit does not have the authority to disregard Supreme Court precedent

That right is reserved for the Ninth Circuit.
1.22.2008 5:44pm
Eugene Volokh (www):
Women generally have the right to terminate their pregnancies, at least before viability, for whatever reason they wish. The question is whether that right applies to prisoners as well; the Eight Circuit said yes, because there's no reason for it to be eliminated by imprisonment.
1.22.2008 6:23pm
psychdoc (mail):
Cjwynes: Elective procedures would increase the number of times an inmate leaves the prison, plausibly raising security concerns. As the opinion noted, an elective abortion doesn't raies the same concern with increased security risks, as carrying a child to term requires an inmate to leave the prison for prenatal care and ultimately delivery. And of course, the inmate would also have to find a way to pay for the elective procedure.
1.22.2008 6:34pm
Jacob Berlove:
Eugene,

The decision only applies to therapeutic abortions. The circuit court upheld the right of the state to deny non-therepeautic abortions at the end of the decision.
1.22.2008 6:41pm
Steve2:

The decision only applies to therapeutic abortions. The circuit court upheld the right of the state to deny non-therepeautic abortions at the end of the decision.

Besides therapeutic, what kind is there?
1.22.2008 7:00pm
Arkady:

Arkady: That's not even a difficult question.


So I guess the answer is Yes. Folks who believe that Roe was wrongly decided, (should) also believe that a state may restrict access to contraception, and a US citizen would have no recourse to the federal courts to challenge. Do I have that right?
1.22.2008 7:08pm
KeithK (mail):
Arkady: Yes. There's nothing in the federal Constitution that guarantees a right to abortion or contraceptives or homosexual sex or various other things. The statements about deprivation of liberty aren't sufficient in my view because they do not create a substantive right (and specific clauses do not involve these issues).

Now it may be that prohibitions against these things are bad policy. I think abortion should be legal in many cases, contraceptives should be legal and easily available and that the government shouldn't care what you do in private. But the Constitution doesn't guarantee rights to these things or provide a federal cause of action.
1.22.2008 7:37pm
Zombie Richard Feynman (mail) (www):
But what about the Ninth Amendment?
1.22.2008 8:09pm
Sasha Volokh (mail) (www):
Arkady: Many will agree with what you said -- that there's no federal constitutional right to contraception.

Though I should mention that some disagree with the reasoning of those cases, but not the result. For instance, you might believe that there's a right to contraception in the Privileges and Immunities Clause, or (as Zombie Richard Feynman says) in the Ninth Amendment, and that the problem with Griswold, Roe, etc., is that they're grounded in the wrong part of the Constitution.
1.22.2008 8:39pm
KeithK (mail):
I'm not a Ninth Amendment scholar or expert by any means. But I don't think it can mean that there is a blanket right to anything that I happen to think is good. If it is then I can come up with lots of rights to claim. It has to refer to some specific class of rights that were known or else it's either an inkblot or all-expansive. IMO A reasonable meaning of the text might be that any right that was acknowledged in English Common Law should remain a right even though the Constitution didn't explicitly enumerate it. I can't see how contraception or abortion fit into this reading.
1.22.2008 8:45pm
Jacob Berlove:
Steve 2,

The Circuit court's decision states: "We hold an
elective, non-therapeutic abortion does not constitute a serious medical need, and a
prison institution's refusal to provide an inmate with access to an elective, nontherapeutic
abortion does not rise to the level of deliberate indifference to constitute
an Eighth Amendment violation."

So an abortion that is completely elective is not protected by this decision at all.
1.22.2008 9:30pm
Zombie Richard Feynman (mail) (www):
KeithK, I agree. But all I'm saying is the "Where's the abortion Amendment?" people are not quite the pure scholars they claim.

Ninth Amendment jurisprudence is pretty scanty as far as I know. But I don't think ENglish Common Law rights like riparian rights are in the 9th Amendment.

Just flying up the ointment, like the undead physicist I am.
1.22.2008 9:35pm
Eugene Volokh (www):
Jacob Berlove: Read the whole opinion, and you'll see that it does strike down the policy as to nontherapeutic abortions as well.
1.22.2008 10:58pm
Jacob Berlove:
Don't know how I missed that- only the eighth amendment argument was rejected, but the fourteeneth amendment liberty interest was accepted by the eighth circuit.
1.23.2008 12:08am
Arkady:
Sasha and Keith: Thanks for your direct answers. I have to say I knew the answer before I asked the question. I was just trying to ginger things up, as William Buckley used to say. But to Sasha's last point, about Roe and Griswold being grounded in the wrong parts of the Constitution. Let's suppose arguendo that Roe is overturned (and thus Griswold also) and, further, that some states outlaw abortion and restrict access to contraception, does anyone reading this blog or contributing to it doubt for one nanosecond that there would be a blizzard of litigation in the federal courts seeking to overturn these laws via arguments based on those other parts of the Constitution? And that in the end what would be litigated would be Keith's contention that:


The statements about deprivation of liberty aren't sufficient ... because they do not create a substantive right (and specific clauses do not involve these issues).


I.e., the very meaning of the word 'liberty' in our Constitution?
1.23.2008 6:33am
Arkady:
Actually, the 'arguendo' part of the preceding is otiose since the situation would revert to that existing prior to Roe and Griswold: State laws banning abortion and restricting access to contraception would be in force.

I still think we'd all need snowsuits, though. Anyone who believes the issue would disappear because Roe is overturned is living in a fantasy world.

I see that the original Jane Roe is supporting Ron Paul:


I support Ron Paul for president because we share the same goal, that of overturning Roe v. Wade. He has never wavered on the issue of being pro-life and has a voting record to prove it. He understands the importance of civil liberties for all, including the unborn.


Hmmm.
1.23.2008 8:02am
Sasha Volokh (mail) (www):
Arkady: When I said there were those other constitutional provisions that could conceivably (!) justify various substantive rights, that's only a matter of doctrine. Politically, it's fairly obvious that a Supreme Court that would overturn Roe would not re-enact the same right using a different doctrinal door.

Anyway, yes, the issue would be huge, but the battle would be fought politically, state by state, or possibly federally (see, e.g., the federal partial birth abortion law). But typically, the people who favor overturning Roe (and, for that matter, overturning every other constitutional right stemming from substantive due process) think that sort of political fight (rather than litigation, which they consider undemocratic) is the desirable result for rights that aren't constitutionally protected.
1.23.2008 9:22am
markm (mail):

[I]s there any circumstance in which a woman is not allowed to abort her unborn child?
Yes, if she cannot afford one. The Supreme Court has held that we, as taxpayers, are not required to pay for them.

But if she does not get an abortion because she can't afford it, we will wind up paying far more for the delivery - and probably continue paying welfare until the child is 18...
1.23.2008 9:31am
Bob from Ohio (mail):
The Ninth Amendment? That is so 1973. It's no longer a "penumbra" that gives us the "right" to abortion, it is a "concept" found in the 14th Amendment.

That is my fundamental opposition to the idea that the US Constitution prevents a state from either banning or legalizing abortion. The SC can't even make up their minds about what vague, unexpressed idea supports the "right"

In short, what other right floats around the Constitution?
1.23.2008 9:53am
PLR:
In short, what other right floats around the Constitution?

Sodomy?
1.23.2008 11:19am
Duncan Frissell (mail):
On the other hand:


An incarcerated member of the New York mafia has been sentenced to an additional 16 months in prison for smuggling his semen out of Allenwood Federal Prison in Williamsport, Pa., to impregnate his wife, the AP/Long Island Newsday reports. Kevin Granato, a convicted "hit man" for the Colombo crime family, and his wife, Regina, in May pleaded guilty to charges that they used a cryogenic sperm kit to illegally transfer Granato's sperm from the prison to a New York fertility clinic. Granato, who had been sentenced in prison for racketeering and murder until 2012, was suspected of sperm smuggling after he said that a toddler in the prison's visitation room was his child;

I thought that repro was as protected right as abortion? What's the diff? If a prisoner is incarcerated for life he/she loses the right to repro. Why does abortion receive greater protection?
1.23.2008 11:49am
Sasha Volokh (mail) (www):
That sounds iffy to me as well.
1.23.2008 1:05pm
Steve2:
Err, Mr. Berlove, I was making a poorly thought-out rhetorical point.

And KeithK, I think your characterization of the 9th Amendment is the exact opposite of the proper one. At least, the exact opposite of the desirable one.
1.23.2008 11:09pm