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Judge orders Nebraska to transport prisoner for abortion

April 12, 2021 GMT

OMAHA, Neb. (AP) — A federal judge on Monday granted a Nebraska prisoner’s request for an abortion and ordered state officials to transport her to a clinic so she can get the procedure on Tuesday, but the inmate will have to pay for the procedure herself and cover the state’s costs to transport and guard her.

Prison officials had previously rejected the woman’s request for an abortion, prompting her to file a civil rights lawsuit on Friday with with support from the American Civil Liberties Union of Nebraska.

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U.S. District Court Judge Joseph Bataillon ordered prison officials to transport the inmate to a Planned Parenthood clinic in Lincoln for “informed consent” counseling on Monday, as required by state law, and back to the clinic on Tuesday to have the procedure done.

“We’re optimistic,” said Scout Richters, a legal and policy attorney for the American Civil Liberties Union of Nebraska. “Under this order, our client can now receive the time-sensitive care she needs and is guaranteed by law. Right now, we’re focused on making sure that’s what happens.”

The ruling came after state attorneys and the ACLU struck an agreement where prison officials would drive the inmate to her appointments, but the inmate would pay $355 to pay the state for the cost of transporting and guarding her. The agreement also requires Planned Parenthood to confirm in writing that it won’t bill the state for the procedure.

In a court filing on Monday, the Nebraska attorney general’s office agreed to have prison officials transport the inmate, but said its decision shouldn’t be construed as state officials agreeing that her rights had been violated.

The Nebraska Department of Correctional Services answers to Republican Gov. Pete Ricketts, an outspoken abortion opponent who opposes using taxpayer dollars to directly or even indirectly pay for abortions. In 2018, Ricketts successfully changed the state budget to effectively bar Planned Parenthood from getting federal family planning dollars that were administered by the state.

Asked about the case at a news conference on Monday, Ricketts declined to comment, citing the ongoing litigation. Officials with the Nebraska Department of Correctional Services and the Nebraska Attorney General’s office didn’t immediately respond to requests for comment.

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Under the agreement, the case won’t be dismissed until after the inmate undergoes the abortion.

The 22-year-old inmate, identified in the lawsuit as Jane Roe, was 15 weeks and 6 days pregnant as of Monday. According to her lawsuit, she arrived at the Nebraska Correctional Center for Women in York on Feb. 18 to serve a 26-month sentence.

The Lincoln Planned Parenthood only offers abortions who are up to 16 1/2 weeks pregnant, according to the lawsuit, and the lawsuit said the health risks increase the longer the inmate waits. Nebraska bans abortion after 22 weeks, except in rare cases when a woman’s life is at risk.

According to the lawsuit, Roe initially asked prison officials for an abortion in late March. Prison officials met with her on April 2 and told her she wouldn’t be able to get the abortion because of a prison policy that puts a 21-day freeze on large amounts of money that are deposited into inmate accounts, and it would be too late for her have the procedure done after 21 days.

Roe made other arrangements to pay for the abortion but her request was formally denied in writing on April 8, according to the lawsuit.

Similar court battles have played out in Arizona, Missouri, New Jersey and Ohio over the last four decades, and courts in each case have ruled that female prisoners don’t lose their constitutional right to get an abortion because they’re incarcerated.

In 2004, the ACLU sued Maricopa County, Arizona, Sheriff Joe Arpaio for an unwritten policy that denied abortion access to inmates without a court order. Arizona courts ruled in the inmate’s favor, but Arpaio continued to enforce the policy. The ACLU filed a new lawsuit in 2008, at which point the sheriff started requiring inmates to pay their own transportation and security costs upfront, until a court struck down that policy in 2009.

In 2008, a federal appeals court in Missouri upheld a ruling that prison officials had violated the equal-protection rights of prisoners by denying their requests to get abortion services.

In a letter last week to Nebraska corrections officials, Richters said prison officials are legally required to give inmates access to abortion services if they ask for it, although she acknowledged that such requests may be rare.

“The law is clear that people who are incarcerated do not lose their constitutional right to terminate their pregnancy, and therefore access to such services cannot be denied,” Richters said in the letter.

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Follow Grant Schulte on Twitter: https://twitter.com/GrantSchulte