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States' rights vs. federal government: Mayer: inmate abortion battle just warming up

Sunday, October 23, 2005

The Missouri prison inmate whose effort to get an abortion went to the U.S. Supreme Court had the procedure performed Thursday; but, that isn't going to stop what could very well be a legal battle between the state and federal government.

According to Sen. Rob Mayer - R., though the procedure has taken place, the legal battle may just be warming up.

The case drew national attention last Monday after the U.S. Supreme Court unanimously ruled, without offering opinion, that the woman be allowed to have the abortion. The woman, known only as Jane Doe, had appealed to the U.S. Supreme Court after prison officials would not comply with a preliminary injunction put out by U.S. District Judge Dean Whipple, who ordered the state to transport the woman to an abortion facility.

The Department of Corrections refused to transport the inmate because of a Missouri law which clearly states that public funds may not be used to facilitate an abortion. The state contended that public funds would have had to be used to pay for the transportation, as well as the salaries of the guards who would need to escort the woman.

Gov. Matt Blunt's spokesman, Spence Jackson said Blunt is "disappointed" in the court actions; but promised the state will continue to defend the rule of law.

Mayer contacted officials with the Missouri Department of Corrections in regards to the case on Friday.

"I don't believe the inmate having the procedure performed necessarily sets a precedent at this time," Mayer said. "And the state is filing an appeal regarding the injunction."

Mayer explained that the state had 45 days to file an appeal and has done so on the grounds of upholding "clear definition" of state law.

"It is my understanding that Whipple made his ruling based on a ruling from the Third District Court of Appeals in the 1980s that said inmates have a right to having an abortion," Mayer said. "My argument is that the courts have recognized the state has a right to provide 'reasonable and necessary' health care for an inmate. I fail to see how an abortion, in this case, was a necessity."

Mayer said he believes that, if anything, the woman should have found a way to come up with the money to re-imburse the state for the cost of transporting her to the abortion clinic.

"I just don't think the state should be responsible for having to pay for such a thing. And I think the majority of the people would agree with me," Mayer remarked. "I would also like to see what reason the Supreme Court had for ruling the way it did. In the past, the courts usually rule in favor of the Department of Corrections."

Although it hasn't been verified, popular opinion as to why the Supreme Court entered its ruling on Monday without comment is that the court wants to avoid potentially controversial rulings as it faces a likely difficult confirmation process for the most recently nominated justice, Harriet Miers.

Mayer said the ensuing legal battle could be a big one as one of the questions surrounding the case is one of the right of states to govern themselves as opposed to the right of the federal government to dictate law to the state.

"There is nothing in the constitution that allows the federal government to dictate state law and policy," Mayer, who is also an attorney, said. "At any rate, the Missouri Attorney General (Jay Nixon) will be the lead counsel on the challenge; and, I would assume if they get an unfavorable ruling, they would take the case to the Eighth Federal Court of Appeals."

Mayer said the case will likely be argued on the merits of the language of the Missouri law that states correction facilities must provide health care under "reasonable and necessary" situations.

"I think most people in the state look at this and ask 'How can an elective procedure be a necessity?'," Mayer said. "It will be very interesting to see what happens.

"I hope the district court will see that it wasn't a good ruling by Judge Whipple."

Jonathon Dawe can be reached via e-mail at jbdawe@dailystatesman.com