WS 798 – Project (Click for Word version)

Background:

On November 8, 2006, respondent Marilyn Acosta, an inmate of the California Department of Corrections was granted permission for an abortion procedure. On the day she was granted permission she was deemed to be 3 and a half weeks pregnant. The procedure was to take place on November 17^th 2006 however, on November 10, 2006 she was suddenly transferred to a state penitentiary in Texas as part of an extradition agreement between the two states. In her transition, she was informed by the Texas Department of Corrections that her abortion procedure would not be approved due to funding challenges. She put in a complaint to the Texas Board of Criminal Justice which was promptly denied. She then filed a lawsuit in District Court citing the violation of her 13^th and 14^th Amendment rights. This was also denied. She then appealed to the Texas Supreme Court by which time the baby was already born. When the case was finally brought before a Texas state appellate court, it was again denied stating that the case was now moot. Finally, she appealed to the U.S. Supreme Court claiming Article III standing.

Texas Department of Corrections, Texas Board of Criminal Justice, et al.

v.

Marilyn Acosta

Supreme Court of the United States

March 23, 2009

Opinion of the Court:

              Respondent Marilyn Acosta, an inmate of the California Department of Correction was granted permission for an abortion procedure on November 8, 2006. The procedure was scheduled for November 17^th 2006, however, 7 days before this date she was transferred to a Texas State Penitentiary. In this transition, it came to her attention that the abortion procedure would no longer be approved per demand of the Texas Department of Correction. The Texas State Supreme Court sustained this action.

            We find that this case illuminates a host of issues. One of the many issues it illuminates is rights of the incarcerated versus rights of the general population and if these differ. Furthermore, if there is a difference, is it constitutional. Subsequently, we must take up the issue of civil liberties of the incarcerated and if these exist. Similarly, depending on the answers to the aforementioned issues, we must decide if an application of Roe v Wade is appropriate. Another issue we must explore is federalism, if this court truly has the power to take up such a case, and make a decision that would be binding on every state in this Union. From this issue, we must go through the proper procedures for hearing a case including jurisdiction, justiciabilty, and standing. Another issue we must take up is the respondent’s claim that her 13^th and 14^th Amendment rights were violated. In exploring all these issues, we find that it is unconstitutional to outright deprive any inmate of an abortion or create or perpetuate a procedural structure which delays access to an abortion.

When the respondent was first informed of her scheduled abortion she was already three and a half weeks pregnant. Upon her transfer to Texas and learning that she would no longer be granted the abortion procedure, the respondent filed a complaint with the Texas Board of Criminal Justice which oversees the Texas Department of Corrections. The complaint was promptly denied. She then decided to file a lawsuit in District Court against not only the Texas Department of Corrections but the Texas Board of Criminal Justice citing the violation of her 13^th and 14^th Amendment rights and claiming Article III standing. The decision of the Board of Criminal Justice and Department of Corrections was upheld by the District Court. She then decided to appeal to the Texas Supreme Court by which time the baby was already born. When the case was finally brought before the Texas Supreme Court, it was again dismissed stating that the case was now moot. This is how we’ve come to the point where we are now.

There are three essential questions we must ask ourselves in deciding to take a case. Is the case in our jurisdiction? Is the case justiciable? Does the respondent have standing to bring this case to U.S. Supreme Court? We find that all the above are true. This case is indeed in our jurisdiction. Article III, Section 2 of the Constitution stipulates that a “case or controversy” may be brought to Supreme Court by original or appellate jurisdiction. This case is brought to the Supreme Court under the Article III, Section 2 stipulation that “the Supreme Court shall have appellate jurisdiction”. Furthermore, the case may have also been brought to the Supreme Court under original jurisdiction because the case involves a federal question regarding the 13^th, 14^th, and 8^th Amendment. In regards to justiciability, we find this requirement to be fulfilled because the five tenets for justiciability (adverseness, standing, ripeness, mootness, and political question) are all properly situated. Of these, the tenets that are in question are mootness and standing. In Roe v Wade, we ruled that in cases such as those regarding abortion, the case does not become moot simply because the pregnancy was forcibly (due to time needed for legal proceedings) carried to term. Respondent claims Article III standing and this standing is conferred by Article III, Section 2, Clause 2 which states that “…the Supreme Court shall have appellate jurisdiction…” Furthermore, the respondent shows injury to her legal right to an abortion and has exhausted all other means of resolution. Thereby, we find that the respondent has fulfilled the requirements of justiciability and standing.

In trying to rule in this case we looked at the precedent that has been set around this very issue. Looking to the Court itself, we find that there were not a variety of cases applicable to the issues most at contention here. In 1976, Justice Marshall delivered the opinion of the court in Estelle v Gamble. It was there that the Court stated

“we therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain”…this is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delay access to medical care or intentionally interfering with the treatment once prescribed”.      

This therefore, created a precedent that restricting prisoners from access to medical care is indeed cruel and unusual punishment. The Court further upheld the rights of incarcerated individuals in Turner v Safley. Justice O’Connor writing for the court stipulated that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution”.

            These two cases help us begin to answer a few of the questions that are in contention in this case. Are the rights of the incarcerated different from the rights of the general population? Yes they are. Is this difference constitutional? Justice O’Connor in part answers this question for us. This difference is NOT constitutional if it disallows inmates the protections of the Constitution. If the inmate is allowed the protections of the Constitution, then it is implied, that the act is constitutional.  Furthermore, with this logic we can answer our next question of civil liberties and deduce that any civil liberties that are afforded by the Constitution are still applicable to any incarcerated individual.

Although there are some civil liberties that are protected and afforded by Constitutional amendment that have been restricted to former inmates such as felons, these restriction have been upheld by this Court. For example, in Richardson v Ramirez we upheld the constitutionality of felon disenfranchisement. We looked to Section 2 of the 14^th Amendment which states that representation will be reduced if “…the right to vote at any election for the choice of electors for President…is denied to any of the male inhabitants of such state…and citizens of the United States, or in any way abridged, except for the participation in rebellion, or other crimes…” to find that this practice of disenfranchisement does not deny equal protections to disenfranchised voters. We found that this passage allows this Court to affirm these practices and the 14^th Amendment does not prohibit in one section that which is expressly authorized in another section. In addition, we later ruled in Hunter v Underwood that this practice would be a violation of equal protection if it can be demonstrated that the felon disenfranchisement provision, as enacted, had “both [an] impermissible racial motivation and racially discriminatory impact.” It is clear through these two cases that this court is not hasty to restrict rights of the incarcerated.

Thus far, we have answered two essential preliminary questions with the following results: (1) There are differences in treatment/rights of the incarcerated and non-incarcerated population and (2) These differences are constitutional so long as they do not violate any constitutional or federal statutory provisions. With these two findings, it is clear that Roe v Wade is therefore applicable to this case. In fact, not only is it applicable but the precedent set by Roe v Wade should be applied here. In Roe v Wade, this court upheld the fundamental right to abortion as an application of not only the “right to privacy” which the Bill of Rights imply but furthermore as described in the 14th Amendment’s due process clause. As stated by Justice Blackmun in Roe v Wade, the 14^th Amendment’s use of the word “person” in the life and liberty clause “does not include the unborn”. Roe was largely based on the precedent of Griswold v Connecticut. Although the case did not address abortion rights it did address the rights of married couples to seek birth control. It was in this case that this Court affirmed “a right to privacy”. In Roe, Justice Harry Blackmun writing for the majority stated that the privacy right affirmed in Griswold “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Due to the precedent of Roe v. Wade this Court finds that Acosta’s claim that her 14^th Amendment rights were violated is valid.

In response to the claim that Acosta’s 13^th Amendment rights were violated, we do not find that this is the case. While we do not affirm the decision of the Texas Department of Corrections, it is probable that if she did have the baby that she could give it up for adoption (or foster care, group home, or to a relative) thereby relieving her of any possible continued involuntary servitude. Therefore, we believe that her 13^th Amendment claim is invalid.

In regards to the Department’s claim that the lack of funding is sufficient grounds for denying an abortion, we look to Article 4, Section 1 of the Constitution – privileges and immunities. Of course this protection is also restated in the 14^th Amendment with exceptions however, in the Slaughterhouse cases of 1873, Justice Miller established that the right to become a citizen of a state by residing in the state “is conferred by the very article under consideration.” The “very article under consideration” here is the Article 4. There is no constitutional exception to this law. There is nothing here to imply that someone who has been accused of a crime could be restricted from this protection. Therefore, Acosta should be granted the same privileges and immunities of the citizens of the state of Texas – which includes a right to abortion as federally protected. As other citizens in the state, Acosta therefore has access to funds made possible through grants disbursed to organizations such as Planned Parenthood. These options were not explored or even considered by the Department before the denial of the abortion request. 

Lastly it important to remind ourselves of the intent of the Framers. In this Court, we have steadily, and thus far successfully, ruled true to the Framers intent. In 1787, during the Constitutional Convention one of the main criticisms of the Articles of Confederation was that they were ineffective because they did not inculcate a strong sense of unity amongst the states. This was one of the reasons for creating a federal constitution -  so that certain governmental actions, in considering the people’s want for limited government, could be federally mandated to disseminate unification among the states. Here, we see that this sense of unity and uniformity should be a strong consideration for the states regarding certain rights of the incarcerated. In a case similar to this one where an inmate is extradited to a state with radically different regulations concerning a certain issue, states may run into the long process of appeals in state courts and eventually federal courts. This could be easily avoided if the rights of the incarcerated were uniform among all the 50 states.

In conclusion, not only is this case justiciable but we find that the Texas District and Supreme Court ruled incorrectly as the Texas Department of Corrections and Texas Board of Criminal Justice clearly violated Marilyn Acosta’s 14^th Amendment rights. However, it is clear to this court that we do not need to decide this case for the state of Texas. With this discrepancy clarified, we remand the case back to the Texas Supreme Court with instructions to not only invalidate their affirmation of the Department but furthermore, to strike down any regulations which allow the Department to deny abortions for incarcerated pregnant women. 

Dissenting opinion:

            While I agree with my esteemed colleagues in the majority, I must dissent in regards to the issue of 13^th Amendment violations. I believe that the respondent’s claim that her 13^th Amendment rights were violated is wholly valid. I believe this for two reasons: (1) prison environment and (2) the likelihood of adoption. It is obvious that a prison environment may not be the most conducive to pregnancy. There is a certain nutritional regiment that many times needs to be followed, classes that would prepare the soon to be mother for childbirth and the possible dangers to the fetus due to the constant threat of violence. There is also the issue of adoption. The likelihood that the child would be adopted and/or that the prison would actually allow her to give the child up for adoption. Both tenets reduce the incarcerated mother who is seeking abortion to “involuntary servitude” as outline in Amendment 13. I believe that the majority has discounted this claim too hastily and needs to re-evaluate Acosta’s claim that her 13^th Amendment rights were violated.