Supreme Court Justice Clarence Thomas has blocked an order from a federal judge that Missouri prison officials must drive a pregnant prisoner to an abortion clinic for treatment. The order is stayed pending review by himself or the full court, but meanwhile the clock is ticking on the deadline for a legal abortion in that state. In about 4 weeks it will not be possible for the woman to obtain an abortion at all.

The U.S. Supreme Court late Friday temporarily blocked a federal judge’s ruling that ordered Missouri prison officials to drive the woman to a clinic on Saturday for an abortion.

Justice Clarence Thomas, acting alone, granted the temporary stay pending a further decision by himself or the full court.

Missouri state law forbids spending tax dollars to facilitate an abortion. However, U.S. District Judge Dean Whipple ruled Thursday that the prison system was blocking the woman from exercising her right to an abortion and ordered that the woman be taken to the clinic Saturday.

The woman’s attorney, James Felakos of the American Civil Liberties Union, said in court papers that the woman is running out of time because she is 16 weeks to 17 weeks pregnant, and Missouri bars abortions after 22 weeks.

The woman, whose name was not disclosed in court papers, has said she will borrow money for the abortion from friends and family but cannot afford to pay for transportation.

Under a policy adopted in July, Missouri’s prison system does not provide transportation or security for inmates seeking abortions. The policy is based on a state law that prohibits the spending of public funds ‘’for the purpose of performing or assisting an abortion not necessary to save the life of the mother.'’

State officials argued that their policy is reasonable because of the costs and security risks of transporting inmates outside for procedures the officials said are not medically necessary.

The state estimated it would cost $350 plus fuel for two guards to accompany the woman on the 80-mile trip from her cell in Vandalia to a St. Louis clinic.

Note that the state defines “medical necessity” as “life-saving”, only - or at least it does so in the case of abortion. There is no necessity that attaches to avoiding forced pregnancy and childbirth. With this convenient definition, the state can compel women to bear children against their will if it can contrive any reason to jail them and then impose insurmountable burdens on their access to abortion - in this case a fee for a 40-mile car ride that is close to the probable cost of the abortion itself. (Note that the federal mileage allowance for car travel would come to about $40 for the entire round trip, fuel included.)

Normally, in these cases a hearing is scheduled as soon as possible. In this case, Thomas will undoubtedly rule against the procedure himself, requiring a petition to the full Court and then a re-hearing if the pro-choice members can muster enough votes. It will be an interesting look at Roberts on this issue.

The real problem is getting the Court to take the notion of reproductive freedom - the heart of the Roe decision - seriously. If you can be forced to bear children against your will under any circumstances, you have no such freedom - especially with primitive states like Missouri working day and night to find ways to force you to do so. Abortion must be seen not merely as a Constitutionally allowable privilege, but as a right which cannot be constrained for any reason. Only then will women not be at the mercy of any hostile and creative oppressive regime.

Hat tip: AJOB/bioethics.net.

UPDATE: Hmmm. SCOTUSblog reports that the ordered has been issued, upholding the emergency order to provide the woman with transportation for her abortion.

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. . . .

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.

The Court was apparently acting under a standing precedent holding that states could not act to block abortions. Given that precedent, this ruling is not as surprising as I had thought, but it’s welcome, at any rate.

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.”