ACLU Challenges Denial of Abortion
Access to Pregnant Prisoners

FOR IMMEDIATE RELEASE
August 28, 1996

The ACLU of Colorado, along with the Center for Reproductive Law & Policy, filed a class action lawsuit in federal court today on behalf of pregnant women in Colorado prisons who desire to terminate their pregnancy. The suit seeks a declaratory judgment and an injunction.

The lawsuit also requested an emergency temporary restraining order to require the Department of Corrections to transport a pregnant inmate, identified in the lawsuit only as M.M., to a clinic.

According to the lawsuit, Plaintiff M.M. is pregnant, is indigent, and wants an abortion. The lawsuit alleges that the DOC refuses to fund, provide transportation, or otherwise provide access for indigent pregnant inmates who wish to terminate their pregnancies. The only exception is if the DOC determines that an abortion is necessary to save the prisoner’s life.

"The DOC takes the position that prisoners who want abortions must provide their own money to cover the cost of transportation to a clinic, security, and medical services," said Mark Silverstein, ACLU Legal Director. "But most prisoners, including M.M., do not have that kind of money. The DOC policy forces indigent women to bear a child against their will."

"By taking M.M. into custody, the DOC deprived her of the opportunity to earn enough money to pay for her own medical needs," said Janet Crepps, a staff attorney with the Center for Reproductive Law & Policy. "The prison has a corresponding responsibility to insure that she has access to the range of medical services appropriate for her condition. The government has no business trying to force her to bear a child against her will."

Plaintiffs argue that the United States Constitution requires DOC officials to ensure access to medical services to prisoners who cannot afford them. But an amendment to the Colorado Constitution states that no public funds shall be used to pay, either directly or indirectly, for abortions. "The United States Constitution is the supreme law of the land," Silverstein said. "If that conflicts with a portion of the state constitution, state prison officials are nevertheless obligated to fulfill their responsibilities under the federal Constitution."

Last year, the Tenth Circuit Court of Appeals resolved a similar conflict between the state constitutional amendment and Colorado’s obligations under federal law. In that case, Hern v. Beye, the court ruled that Colorado was required to fund abortions that were covered by the federal Medicaid program even though they included abortions that were not necessary to save the life of the mother.

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