Sheriff Joe Arpaio Likely to Appeal Abortion Ruling

October 20, 2009 | Last updated: July 31, 2020

On Tuesday I reported that an Arizona judge had ordered Maricopa County Sheriff Joe Arpaio to stop pre-charging female prisoners for the transportation and security costs associated with their obtaining abortion services at a medical clinic. The American Civil Liberties Union had won its argument that the charges — which ranged from $300 to $900 depending on how long the woman had to stay at the clinic, were an unconstitutional obstacle to a woman’s right to obtain an abortion.

On Tuesday afternoon, Jack MacIntyre, a deputy chief with the sheriff’s office, told me the ruling was “an instance of pretty rank judicial activism,” adding that “it is very very likely we will appeal.”

The way the sheriff’s office looks at it, he said, the judge’s order (which was read to the court and is not yet available in print) was “not only not leveling the playing field for persons seeking abortion, but setting them up as a preferential category ahead of anyone else seeking transport for medical procedures.”

That’s because Maricopa County doesn’t provide free transportation for anyone who wants medical assistance outside the prison clinic, he said.

“We’re continuing to charge anyone else for medical transports,” he said. “We did that recently for someone from Oklahoma who had to be tested and have bone marrow drawn because his sister had an advanced case of leukemia. He had to be tested twice and have bone marrow extracted and implanted in his sister. We charged in advance for transport and security costs,” said MacIntyre. “We do the same thing for people getting eyeglasses or dentures.”

In fact, the county is required to provide transportation for all medically necessary treatments, because prisoners have a constitutional right to medical care. But there’s no right to cosmetic dentistry or other elective procedures, so the county can charge pre-payment for transportation to those.

The ACLU had challenged the charges in connection with the abortion procedures because there is a constitutional right to abortion. The same court had already held that the sheriff cannot obstruct that right.

“The crux of the case was that for indigent women who couldn’t afford this, and couldn’t get money from friends, or from charitable organizations, she would likely be forced to carry to term,”explained ACLU attorney Brigitte Amiri, who argued the case in Arizona today. “The defendants conceded that.”

But MacIntyre had another objection, which is that there was no actual woman involved in this case, at least not right now. When the ACLU initially filed its lawsuit in 2004, it was on behalf of a woman who’d been denied access to an abortion because she could not afford the transportation and security costs. A nonprofit organization eventually paid the costs for her, but the issue remained and the case continued.

In 2005, the court ruled that the county policy was unconstitutional, and issued an injunction to prevent the county from enforcing it against anyone else. According to Amiri, the judge today ruled that the pre-payment policy was a violation of that earlier court order. Under Arizona law, it didn’t matter whether an actual woman was being denied the ability to obtain an abortion at this moment, she said. What’s more, “since this issue is certain to recur there’s no sense in not deciding it now. Also, when a woman does need an abortion, time will be of the essence, and any delay in obtaining an abortion can increase risks to her health.”

The judge apparently agreed that that was good enough reason to rule on the issue. But that still didn’t convince the Maricopa County Sheriff’s Office.

“It really is setting up one group as a special group, and it directly impacts the taxpayers who Arpaio tries to steward as best as possible by not spending their money foolishly, trying as much as possible to run his organization on as tight a budget as possible,” said MacIntyre.

What’s more, if the woman who initially was denied an abortion because she couldn’t afford it, back in 2004, were in the court today, he added “we wouldn’t even be discussing it,” said Macintyre. “That person was an illegal alien, and there’s a federal law that prevents us from extending credit to an illegal alien.”

Actually, says Amiri, the federal statute prevents illegal immigrants from receiving welfare benefits. And transportation to gain access to a constitutionally protected abortion is not legally considered a form of welfare benefits.