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35 Years Hence, Our Contemporary Fault Line on Abortion

By E.L. Lipman

If art is a hammer, then perhaps case law is our mirror. It reflects back a snapshot of our present circumstances, framing in full color our successes in presenting ourselves and the areas in which we still struggle.

Tuesday, having been 35 years to the day that the U.S. Supreme Court handed down its landmark decision in Roe v. Wade, it occurred to me that a decision from the U.S. Court of Appeals for the Eighth Circuit, involving a similarly pseudonymed plaintiff, in a challenge to state abortion regulations, issued on that anniversary, was just such a reflective marker of our time.

At issue in the contemporary challenge by Jane Roe, was whether a Missouri prison regulation that prohibited travel by women inmates outside of the facility for elective abortions, violated rights that were otherwise guaranteed to the inmates by the Eighth and Fourteenth Amendments. A lower court enjoined the Missouri jailers from enforcing the restriction against women seeking elective abortions, on the grounds that the prohibition did not comport with due process and amounted to cruel and unusual punishment.

Agreeing only in part, the appellate panel held that Missouri?s prohibition on security escorted travel outside of the prison for elective abortions was not rationally related to the goal of reducing the risk of inmate escape; because the regulation did permit travel under an escort for other types of medical care ? including the prenatal care and delivery that would ordinarily follow if an abortion were not obtained. Parting company with the lower court, however, the appellate panel went on to instruct that elective abortions did not present the type of ?serious medical need? which, if withheld by prison officials, would amount to ?egregious treatment that the Eighth Amendment proscribes.?

The panel?s complete analysis, which includes a discussion of the earlier Roe and the cases that followed it, is accessible here.

Full post as published by Within the Scope on January 24, 2008 (boomark / email).