The Supreme Court on Monday cleared the way for a Missouri inmate to obtain an abortion over the objection of state officials. In a brief order, the Court refused the state’s request to stay a federal judge’s order requiring that the inmate be taken to a St. Louis clinic. Justice Clarence Thomas on Friday night had temporarily blocked that order, but the Court on Monday lifted the stay Thomas had issued.

U.S. District Judge Dean Whipple of Jefferson City, Mo., last week had issued an emergency order to require the abortion. The woman, who learned she was pregnant after being arrested in California, is in the 16th or 17th week of pregnancy. She sought an abortion while in California, but was transferred to a women’s prison in Vandalia, Mo., before an abortion could be performed. State officials, citing Missouri’s official view that abortion should be discouraged, told her that they would not arrange for an abortion that was not medically necessary.

The case is Crawford v. Roe (application docket 05-A-333).

The woman faces a four-year prison term, after being picked up on a parole violation.

This was the first abortion controversy at the Supreme Court in which Chief Justice John G. Roberts, Jr., participated. Although there were no recorded dissents from the order denying the stay request of Missouri officials, that did not necessarily mean that all nine Justices had voted in favor of the order. The actual vote was not disclosed. Had Roberts not participated, that would have been noted, under the Court’s usual practice.

It would have taken the votes of at least five Justices to grant Missouri’s stay request. As Stern-Gressman-Shapiro-Geller note in their standard work, Supreme Court Practice, “If an application is referred to the Court, the affirmative votes of a majority of the participating Justices are required to grant it.”

(On May 16, 1988, the Supreme Court had denied review of a Third Circuit ruling that it was unconstitutional for prison officials to refuse to assure pregnant inmates access to abortions, even if there is no medical necessity for ending a pregnancy. The case was Lanzaro v. Monmounth County Inmates, docket 87-1431. That case also involved a New Jersey jail’s policy of requiring inmates to finance their own abortions. That was not an issue in the new Missouri case; the pregnant inmate in that case told the Supreme Court that she “is willing to pay for the cost of the medical care.”)

Posted in Everything Else