By Scott ForsythA version of this article appeared in the 'Daily Record' on January 27, 2010.
Sheriff Joseph Arpaio of Arizona's Maricopa County prides himself on being "America's Toughest Sheriff."
He also is America's most litigious one. He has commenced a score of lawsuits and defended thousands.
Most of the latter involve civil rights violations. His record is not good. Examine a recent loss, Doe v. Arpaio, CV 2004-009286 (Super. Ct. Maricopa Co. 2009).
The sheriff is opposed to abortion. He cannot deny women the right to obtain an abortion, but he can make it difficult for women under his supervision to do so. Those women include inmates.
Some time ago he adopted a policy requiring an inmate who sought transportation for an abortion to obtain a court order. When an inmate in her first trimester could not obtain the necessary order, she turned to the ACLU.
It brought suit and obtained an immediate injunction. The court ultimately invalidated the policy as a violation of the right to obtain a timely, safe and legal abortion. Doe v. Arpaio, 150 P.3d 1258 (Ariz. Ct. App. Div. 1 2007).
After the sheriff exhausted his appeals, including a petition for certiorari to the U.S. Supreme Court, he sat down with the ACLU to write a new policy. In the course of negotiations, however, he decided an inmate who wanted an abortion must pre-pay the cost of transportation to a clinic, including security.
The cost would be either $300 or $600, depending on the number of visits required. If the same inmate needed transportation for other medical services or for a court appearance, he would not charge her.
The ACLU would not accept the condition and moved to have the sheriff held in contempt of the earlier injunction. It made several arguments.
Requiring a transportation fee to be paid in advance places a "substantial obstacle in the path" of a female inmate seeking an abortion of a nonviable fetus. Planned Parenthood v. Casey, 505 U.S. 833, 877 (1992).
The inmate may have to delay abortion care while she raises the funds. Every week of delay increases the risks of complications. A delay past the second trimester or an inability to raise the funds will force the inmate to carry to term.
The sheriff cannot condition an inmate's exercise of a constitutional right -- here, access to abortion -- upon her payment of a fee. Many Supreme Court decisions have so held in other contexts.
Lastly, the policy is not "reasonably related to legitimate penalogical interests," as required by Turner v. Safley, 482 U.S. 78, 89 (1987).
The sheriff advanced one interest -- saving taxpayer dollars. An appellate court in the same case, however, determined earlier that "transportation for abortion services are a negligible fraction of the overall transportation the county performs each year."
It noted that, generally, "courts have been reluctant to consider costs to the institution a major factor in determining whether a constitutional violation exists." Doe v. Arpaio, supra at 1267.
The sheriff did not provide an alternative means for an inmate to exercise her fundamental right to obtain an abortion. In fact, there was a way to accommodate an exercise "at de minimis cost" to the sheriff: He could deduct the cost from the inmate's prison account, as he already did for medical co-pays, or require the inmate to commit in writing to reimburse the county.
At oral argument on the motion, the judge asked the attorneys to estimate the hours expanded on the issue, who responded with 40 hours per side. A lot of taxpayer money was being spent on a policy that might save the sheriff a few hundred dollars a year, given how few inmates seek an abortion.
The judge ruled from the bench and granted the motion. What looks and smells like an evasion of a previous order is an evasion. Whether America's Toughest Sheriff has learned his lesson is another matter.