Issuing its first abortion-related decision under new Chief Justice John G. Roberts Jr., the Supreme Court refused yesterday to block the court-ordered transport of a female prison inmate to an outside clinic for an abortion.
The court's two-sentence order capped five tense days of litigation. The woman, now 16 weeks pregnant, was battling a new Missouri policy forbidding prisons to assist women seeking to terminate their pregnancies, as corrections officials had done in seven previous cases during 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 -- 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 other eight justices, resulting in the decision announced yesterday.
The order came unaccompanied by a published opinion or recorded dissent, so there is no way to tell how many justices might have voted against the order -- if any. 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 among the justices.
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, who President Bush has nominated to replace retiring Justice Sandra Day O'Connor. She has been the swing vote on key abortion decisions in recent years, and Democratic senators have said they will question Miers on her views of abortion.
In seeking emergency Supreme Court intervention, Missouri had asked Thomas to give "heavy consideration" to its policy of "discourag[ing] abortions and encourag[ing] childbirth."
But the state had a heavy legal burden: to show 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 covered only 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.
Missouri's Department of Corrections put the new policy into effect July 19, in response to criticism from antiabortion state legislators, state officials said. The legislators had said that the use of state-paid guards and vehicles to transport a prisoner to an abortion clinic violated the state's abortion law, which says that "no state money, employees in the course of their employment, or facilities are to be used for abortions except abortions performed to save a woman's life."
Also under the law, which was adopted in 1986, no state money, employees, or facilities are to be used "for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life."
Gov. Matt Blunt (R) said yesterday that he is "extremely disappointed in the Supreme Court's decision" and added: "The decision is highly offensive to traditional Missouri values and is contrary to state law, which prohibits taxpayer dollars from being spent to facilitate abortions."
Previously, Blunt had praised Thomas's order delaying Roe's release, contrasting it with previous decisions in the case by "activist judges."
But abortion rights advocates say the Missouri policy effectively bans abortion for inmates. "Women do not give up the right to terminate a pregnancy when they enter prison any more than they give up the right to carry a pregnancy to term, and we are glad the court agreed," said Talcott Camp, deputy director of the American Civil Liberties Union Reproductive Freedom Project, which helped Roe after she wrote a letter to the ACLU.
Roe was pregnant before entering prison in Missouri. She was arrested in California in July on a Missouri warrant for a parole violation. While jailed in California, she asked to be taken for an abortion but was transferred to Missouri on Aug. 22, before her request could be met.