by Matt Barr

On Roberts, Thomas and abortion

Prof. Michael Dorf has a piece at Findlaw this week about the recent, very brief, Crawford v. Roe abortion case. His speculation about the political manueverings on the new Roberts Court is interesting but I think unpersuasive.

This month, Jane Roe, an Incarcerated-American, sought an abortion. She didn't seek financial assistance from the state for the procedure, but requested transportation to the provider she'd chosen. Missouri has a policy of not providing transportation for prisoners to abortion providers unless the procedure is medically necessary. It appeared Ms. Roe's abortion will be (or was, by now) elective.

Here's Prof. Dorf's setup of the case:

Last week, in a one-sentence order in the case of Crawford v. Roe, the U.S. Supreme Court reinstated an abortion rights ruling by U.S. District Judge Dean Whipple. Judge Whipple's decision required the Missouri Corrections Department to transport a pregnant prisoner to a clinic where she could (and eventually did) obtain an abortion.

The case made national news because only three days earlier, Justice Clarence Thomas had issued an order temporarily staying Judge Whipple's mandate, so that the full Court could consider the issue.

With the Justices' action in the case, they avoided, for the time being, the need to resolve a potentially divisive question: Where does the state's obligation to respect the individual right to abortion end, and the state's right not to fund abortion begin?

The state's case wasn't very strong:

Legally, the state had to claim that denying Roe her abortion served a legitimate penological interest. The state had argued its interest was in making sure the prison was fully staffed with guards: It contended that providing guards to transport Roe to the abortion clinic would have left the prison with fewer guards available to keep the peace.

Judge Whipple didn't find this interest credible, however. He pointed out that the state routinely transports prisoners for other medical procedures, without worrying about a shortage of guards.

The state also claimed, more simply, that it had an interest in not funding abortions, based on its opposition to abortion, and on the fact that abortions cost money. Judge Whipple did not deny that this was a legitimate position under the rule of Maher. But he noted that the interest was somewhat attenuated in the particular case. Prisoner Roe did not seek state funding for the abortion itself, for which she was willing to pay from her own, and from borrowed, money. Accordingly, the only state outlays were for the cost of transportation, and those outlays were only made necessary by the fact that the state was holding Roe behind bars.

Prof. Dorf wonders aloud (as it were) why Mr. Justice Thomas stayed the court's order to begin with.

Perhaps he thought that saving the cost of transportation, or ensuring prison security, really were legitimate penological objectives in this instance. Or perhaps he thought that the state could treat a prisoner's commission of a crime as the true cause of her inability to obtain outside medical services on her own--at least for elective procedures. Or maybe Justice Thomas simply thought the case was sufficiently novel that the full Court ought to examine it.

I'll go along with any of those. Thomas is the sort to defer to a state's or a prison's reasonable judgment as to what serves its penalogical objectives and what doesn't (see his frank admission of the Court's "institutional inability to weigh competing concerns correctly" in the context of the President's war powers here). He's certainly on board with the general principle, enshrined in Court precedent, that the constitutional rights of a duly incarcerated prisoner may be infringed to an extent that wouldn't be permissible if she were free. And he famously, and eloquently, argued in dissent in Hudson v. McMillian that "[t]he Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation" -- not all injuries suffered in prison are remediable under the Constitution.

But Prof. Dorf speculates as well whether Thomas' "hope that the Court would, indeed, use the case as a vehicle to revisit -- or at least chip away at -- Roe v. Wade" contributed to his decision to stay. I wouldn't go that far. Assume for a moment Thomas "hopes" to get his hands on a vehicle to revisit Roe. If true, the time to do it would not be while Ms. Justice O'Connor is still seated, it's after the President's replacement joins the Court. Dorf is searching for clues ("like [a] Kremlinologist[] in the days of the Soviet Union") to the Chief Justice's inclination to go after Roe, but in this limbo between O'Connor's retirement and her replacement's arrival (pushed back further today), you won't see anyone "hopeful" to revisit Roe doing anything.

Leaving all that aside, this was an easy case. So long as the right to abortion is regarded as a right protected by the Constitution, the same result was compelled here as if the prison gave benefits to prisoners who say they voted Republican and denied those same benefits to prisoners who say they voted Democrat; or rewarded Christian prisoners on account of their religion and withheld the reward from Jewish prisoners on account of theirs. The "penological objective" of saving money and manpower in the case of those denied the benefit fails as an argument the same way it fails when you provide transportation for prisoners seeking other elective medical procedures than abortion.

So, you may well say, if you believe Roe v. Wade was incorrectly decided, don't you feel the result described above isn't compelled? I doubt you do. For all the well-deserved derision heaped on Sen. Specter for calling Roe v. Wade a "superprecedent," this isn't a state passing a law "protecting prenatal life," an interest acknowledged by the Roe Court itself (you would be on firm footing if you argued that subsequent cases moved away from that, but it is an "interest," whether actionable under the Constitution or not). It's a prison administraton policy meant to discourage elective abortions in severely limited contexts. Whether you have a legal leg to stand on or not -- that is, whether on a blank slate the anti-Roe Justices would hop aboard this "vehicle" to rule this way or that -- to extract Roe's lineage from the Court's jurisprudence, "you're gonna need a bigger boat."

If I'm right -- never jump to conclusions -- this may make the question of Thomas' motives more interesting, but as I note, they are explained more easily by examining his thinking in other, published contexts than by imagining him itching for a chance to whittle down Roe v. Wade. And the tea leaves are even more inscrutible when it comes to the Chief Justice.

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