NCJ Number
66978
Journal
Fordham Law Review Volume: 48 Issue: 4 Dated: (MARCH 1980) Pages: 550-567
Date Published
1980
Length
18 pages
Annotation
THE NATURE OF AN INMATE'S RIGHT TO A STATE-FUNDED ABORTION IS EXPLORED. IT IS CONTENDED THAT THE CONSTITUTION MANDATES THAT PRISONERS BE GRANTED ABORTIONS AT GOVERNMENT EXPENSE.
Abstract
A WOMAN IS NOT WHOLLY STRIPPED OF HER CONSTITUTIONAL RIGHTS WHEN SHE IS IMPRISONED. THE SUPREME COURT HAS HELD THAT A WOMAN'S RIGHT TO ABORTION IS PROTECTED FROM UNDUE GOVERNMENT INTERFERENCE BY THE DUE PROCESS CLAUSES OF THE 5TH AND 14TH AMENDMENTS. REGULATIONS LIMITING FUNDAMENTAL RIGHTS CAN BE JUSTIFIED ONLY UPON SHOWING COMPELLING GOVERNMENTAL INTEREST EMBODIED IN NARROWLY DRAWN ENACTMENTS. A WOMAN'S RIGHT TO ABORTION IS THEREFORE PROPERLY LIMITED ONLY WHEN THE STATE'S INTERESTS IN MATERNAL HEALTH, MEDICAL STANDARDS, AND POTENTIAL LIFE BECOME COMPELLING AT THE VARIOUS STAGES OF PREGNANCY. CONVERSELY, A WOMAN'S RIGHT TO TERMINATE PREGNANCY IS IMPROPERLY LIMITED WHEN THE GOVERNMENT IMPOSES AN UNDUE BURDEN ON THAT RIGHT. BECAUSE A STATE CANNOT DEPRIVE AN INMATE OF HER RIGHT TO ABORTION, IT APPEARS THAT THE STATE MAY ALSO HAVE AN AFFIRMATIVE DUTY TO SECURE PROTECTION OF THAT RIGHT BY PROVIDING ACCESS TO AS WELL AS FUNDING FOR AN ABORTION. THE INMATE, UNLIKE HER FREE COUNTERPART, IS COMPLETELY DEPENDENT ON THE STATE FOR ALL MEDICAL TREATMENT. MOREOVER, WHEN A STATE INCARCERATES AN INDIVIDUAL, IT ASSUMES TOTAL RESPONSIBILITY TO PROVIDE FOR HER CARE. UNWANTED PREGNANCY ARGUABLY POSES A SERIOUS MEDICAL NEED WITH IMPLICATIONS FOR THE WOMAN'S MENTAL HEALTH. IT REMAINS TO BE DETERMINED WHETHER THE STATE MAY REFUSE TO FUND ABORTIONS OF THOSE INMATES WHO CAN AFFORD THEM. REGARDING THE INMATE'S RIGHT TO ABORTION, HOWEVER, LEGITIMATE STATE INTERESTS MUST YIELD TO CONSTITUTIONAL MANDATES. FOOTNOTES ARE PROVIDED. (LWM)