“Slap in the face” or constitutional obligation?

by Alexandra Morgan-Kurtz, ACLU-PA legal fellow

There are some mornings where you just have to wonder if government officials enjoy wasting taxpayer money and hurting their constituents. Today was one of those mornings.

“ACLU request for inmate abortion policy riles Westmoreland controller,” read the headline. The controller, Jeff Balzer, has issues with the county’s obligation to pay for abortions, which he sees it as “a slap in the face.” I respect his right to that opinion, and his right to express it as vehemently as he wishes. What I take issue with is strong-arming his personal moral beliefs onto the women incarcerated at Westmoreland County Prison. Mr. Balzer isn’t objecting to the added costs - abortions cost hundreds of dollars; prenatal care and delivery can cost thousands of dollars. He’s objecting to the principle. There is simply no room for a heckler’s veto in the arena of fundamental constitutional rights. The law is clear that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” (Turner v. Safley) Whether Mr. Balzer likes it or not, this includes a woman’s right to choose.

The government has no general obligation to pay for a citizen’s medical care. Everything changes, however, when the government chooses to incarcerate someone. At that point, it is legally and morally bound to ensure that person’s safety and physical and mental well-being. People have argued for decades that it’s unfair that prisoners “get” these things when people who have committed no crimes receive far less. I agree there’s unfairness in the system. It’s unfair that our government has decided to only pay attention to people when they absolutely have to. It’s unfair that rather than address the problems of poverty and racial inequality, our government embraces a policy of overincarceration that continues vicious cycles and costs taxpayers millions of dollars each year.

I am all about fairness. If I had my way, we would quickly be following France’s lead and providing birth control and access to abortion at no cost. Regrettably, that isn’t going to happen in America any time soon. Fortunately, in Pennsylvania, New Jersey, and Delaware, incarcerated women aren’t left out in the cold. The Third Circuit has held that county prisons have an affirmative obligation to ensure that women receive timely access to abortions, and “[i]n the absence of alternative methods of funding, the County must assume the costs.” If the county doesn’t respect this right and a woman’s right to choose is obstructed or unreasonably delayed, the county could be faced with even more costly litigation. Incarcerated women are undoubtedly facing a crisis in their lives. The last thing they need is for the government to interfere in this very private matter.