If she had, it’s rather unlikely she would have been detained to begin with.
If the government doesn’t want to pay for someone’s medical care, then they can choose not to detain that person. Once they choose to detain that person, they are on the hook for medical care. What’s more, there is a constitutional right to abortion, believe it or not. The mere fact of detention does not extinguish that right. So there are two clear constitutional arguments here.
The cost of a first trimester abortion is small, usually a few hundred bucks. Many forms of medical care routinely provided to pretrial detainees, including people accused of lacking legal immigration status, cost that much or more. This isn’t about money. It’s about morality. The government wants to ban abortion. But they aren’t allowed to do that. It’s not that complicated.
I agree with your assessment of the motivation here. But is there a constitutional right to elective medical procedures for detainees/prisoners? I’m sure you have a right to medically necessary treatment, but elective nontherapeutic procedures?
This is an episode/chapter of The Handmaid’s Tale, right?
Can/should that medical care be limited to medically necessary care or must it also include elective procedures?
If my Colombian step-daughter’s friend wants braces because her otherwise healthy teeth are crooked should she show up at the US border, surrender to ICE as an unaccompanied minor, and voila… free braces?
I agree that the obligation to provide medical care is limited to serious medical needs. I don’t agree with the characterization of abortion as an elective nontherapeutic procedure. Courts are split on that question. I think the subset of courts viewing this in the elective procedure framework are wrong because of the physical and emotional consequences of being forced to carry a child to term.
But the question of how to categorize the procedure in terms of Fifth and Eighth Amendment law doesn’t matter that much, since there is an independent constitutional right to abortion. There are many cases on this, and as far as I know, there is complete consensus that prisons cannot categorically ban abortion for female inmates.
There’s a spectrum here. No one thinks cosmetic devices or surgery constitutes a medical need. Courts are split over whether abortion is a serious medical need. And no one doubts that appendix removal is a serous medical need.
I think the courts holding that abortion is not a serious medical need have it wrong, and the courts holding that it is have it right. But it’s a matter for the Supreme Court. Except that it will probably never get there because there’s a much easier ground on which to decide: abortion is a constitutional right, so you cannot deny it even if it is not a serious medical need.
Abortion is not a constitutional right. It would take a simple SC majority to overturn it unlike say the constitutional right to be free from illegal search and seizure.
What happens to the baby? Can you forcibly deport a natural-born citizen to another country?
I would like to subscribe to your newsletter. In particular, I’m curious to learn what happens on your planet when a “simple SC majority” limits the constitutional right to be free from illegal search and seizure.
Makes no difference. Right now, which is the time we are operating in, abortion is a constitutional right (within the limits outlined in the latest SCOTUS decision). She has a court order from a judge waiving the need for parental consent, so the state should not be able to stop her from getting an abortion. You may not like that, but that is the current law.
The Texas officials in this case are in the wrong. We can moralize all day long about a minor who illegally crosses the border, but she is here, she wants an abortion which is legally entitled to, so she should be able to get it.
No. Abortion is not in the Constitution and does not take an amendment to repeal. The SC could try to narrow the 4th Amendment but a simple act of Congress could overturn their ruling. Abortion will only be a constitutional right if it is embedded in the Constitution via the amendment process.
No. The state has a right to appeal a judges ruling. I am in favor of abortion but I am also in favor of the rule of law. She broke the law and she must follow our legal process. She could have easily gotten an abortion in Mexico so its not like she needs to get one here.
You’re an idiot. Congress cannot outlaw abortion except within the scope allowed by the SCOTUS. A ruling on constitutional matters by the SCOTUS has the same weight as an amendment. The only difference is that a future SCOTUS can reverse the ruling. But until they do, it’s the “supreme law of the land”.
Sorry. I thought this was the Pit. My sincere apologies.
If she has an abortion, there won’t be any baby.
No, a SC ruling does not have the same weight as an amendment. A SC ruling cannot overturn a constitutional amendment. Are you arguing than Congress can’t legislate away the Hobby Lobby decision?
The mother can make arrangements to have someone else (family, friends, etc) take the baby in, take the baby with her, or abandon the baby.
Broadly, there is a responsibility for the public purse to pay* for medically necessary treatment for those held in custody. But there is not an obligation to pay for elective procedures. I am not aware of precedent requiring an individual to be released from custody in order to attend an elective medical procedure.
There is a spectrum. Abortion might be a medical necessity. Or it might not. When an expectant mother is diagnosed with and aggressive form of cancer and needs to terminate a pregnancy to start chemotherapy abortion is considered medically necessary. That does not appear to be the case in this circumstance.
To the other end of the spectrum, an expectant mother who decides to terminate a pregnancy because she does not want to be pregnant during summer bikini season does not have a medical necessity. She has every bit of a legal right to obtain that abortion as an elective procedure in the United States within the limits of any restricting laws which have been upheld by the courts. Though I am not clear that she would have a right to be released from custody or to have the procedure while supervised by police/immigration personnel. But the pregnant girl in this case does not seem to have this rather frivolous reason for obtaining an abortion.
This case is somewhere in between. Arguably there is a psychological need that needs to be addressed in this circumstance. Whether abortion is needed to address that concern and this is thus a medical necessity is something that presumably a psychologist should evaluate, and quickly. If it is a medical necessity due to psychological factors then the immigration authorities have an obligation to provide that procedure and pay for it.
And even if it is not a medical necessity, perhaps this is the time to decide whether a detaining authority has an obligation to provide supervision during an elective medical procedure off premises when the detained person has means to pay for the treatment. Could such an obligation be limited to abortion or would it extend to other elective procedures? I have sympathy for a teen seeking an abortion outside the detention center who needs an officer to provide supervision for a few hours. But somehow I have no sympathy for a detainee deciding that now is the perfect time to get a tummy tuck and who wants an officer detailed to 24/7 supervision at an area hospital while the treatment and recovery take place.
- Some states require inmates to pay a part of their medical costs, particularly for non-emergency care.
Is there any other medical procedure that the SCOTUS has declared to be a fundamental right? Not in the sense that it must be provided, but in the sense that it cannot be prohibited. This is not a elective procedure that can be put off for a later time, but a life altering decision. What interest does the state have in preventing this abortion from taking place? Yes, we have a strict rule about using federal money to pay for an abortion, but this is being paid for by private parties.