Petition for Writ of Certiorari — Crawford v. Roe (No. 07-1491)

Supreme Court, U.

FILED ve.

@ 071491 may 27 2008

No. 06° OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

LARRY CRAWFORD, |

Director of the Missouri Department of

Corrections,

CYNDI PRUDDEN,

Acting Superintendent Women’s Eastern

Reception, Diagnostic and Correctional Center,

in her official capacity,

Petitioner,

Ve

JANE ROE,

Respondent.

On Petition for a Writ of Certiorari.

to the United States Court of Appeals

for the Eighth Circuit

Jeremiah W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

MICHAEL PRITCHETT

Counsel of Record

Assistant Attorney General

PO Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

vax: (573) he 1-9456

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QUESTIONS PRESENTED FOR REVIEW

Whether the policy of the Missour1 Department

of Corrections not to transport prisoners for

nontherapeutic abortions, in furtherance of its

interests in safety and efficient use of resources, as

weil as in support of the state policy in favor of

childbirth, violates the Fourteenth Amendment?

Whether the right of an inmate to leave an

assigned correctional institution for a nontherapeutic

abortion is fundamentally inconsistent with her

status as a prisoner?

PARTIES TO THE PROCEEDING

Larry Crawford, Director of the Missouri

Department of Corrections, in his official capacity.

Cynthia Prudden, Acting Superintendent,

Women’s’ Eastern’ Reception. Diagnostic and

Correctional Center, in her official capacity.

Jane Roe, individually and on behalf of all

others similarly situated.

i

DISCLOSURE STATEMENT PER RULE 29.6

There is no parent corporation or public

cornpany related to the parties in this case.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .............. i

PARTIES TO THE PROCEEDING .......................0. ll

DISCLOSURE STATEMETN PER

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PETITION FOR WRIT OF CERTIORARI................ 1

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................ eee eeeeees 1

STATEMENT OF THE CASE .................ssccsssscersesoees 2

REASONS THE WRIT SHOULD BE

TABLE OF AUTHORITIES

Cases

Gerber v. Hickman, 291 F.3d 617, (9th Cir. 2002),

cert. denied, 537 U.S. 1039 (2002)..................ccece000e 6

Mahervu. Roe, 482 U.S. 466 (1977).......00cccceccccsessesees 3, 4

Roe v. Crawford, 439 F.Supp.2d 942

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Roe v. Crawford, 514 F.3d 789 (8" Cir. 2008) .... cee... I

Turner v. Safley, 482 U.S. 78 (1987).............0:-s0eseeeeees 3

Other Authorities

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PETITION FOR WRIT OF CERTIORARI

Director Larry Crawford and _ Acting

Superintendent Cynthia Prudden respectfully

petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Eighth Circuit in this case.

OPINIONS BELOW

The district court decision granting summary

judgment to Respondent Roe is published at 439 F.

Supp.2d 942 (W.D. Mo. 2006). App. B. The opinion

of the Eighth Circuit Court of Appeals affirming the

district court decision is published at 514 F.3d 789

(8th Cir. 2008). App. A. The Eighth Circuit Court of

Appeals entered an order denying rehearing and

rehearing en banc on February 27, 2008. App. C.

JURISDICTION

The Eighth Circuit Court of Appeals entered

its judgment on January 22, 2008 (App. A), and

entered its order denying petitioners’ petition for

rehearing and rehearing en banc on February 27,

2008. App. C. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves application of the

Fourteenth Amendment Due Process Clause:

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law.

STATEMENT OF THE CASE

Under the Missouri Department of Corrections’

revised policy on inmate abortions, the Department

will only transport an inmate to obtain an abortion

outside prison walls if the abortion is medically

necessary. Medical necessity is determined by

physicians exercising their professional judgment on

a case-by-case basis. The Department does not

provide transportation to inmates for any elective

medical procedures. It does pay for childbirth

expenses of its prisoners, and _ provides

transportation and security for the birth. Under its

previous policy on inmate abortions, the Department

provided transportation and security for

nontherapeutic abortions, but did not pay for the cost

of the nontherapeutic abortions.

Plaintiffs, a class of current and future

pregnant inmates who might seek elective abortions

while in the Department’s custody, sought: (1) a

declaration that the policy unconstitutionally

prevents inmates from exercising their right to

decide to have abortions and shows deliberate

indifference to their serious medical needs and (2)

injunctive relief to prohibit enforcement of the policy.

Following cross-motions for summary judgment, the

district court granted the declaratory relief sought by

the plaintiff class.

The court of appeals affirmed the district

court, holding that the policy cannot be maintained

under the Fourteenth Amendment in light of Turner

v. Safley, 482 U.S. 78 (1987). App. A-4 — A-14. The

court of appeals determined that the policy did not

violate the Eighth Amendment because an elective,

nontherapeutic abortion is not a serious medical

need, and a prison institution’s refusal to provide an

inmate with access to an elective, nontherapeutic ~

abortion does not rise to the level of deliberate

indifference. App. A-14 — A-21.

REASONS FOR GRANTING THE WRIT

Review is necessary to resolve “important question{s]

of federal law” that have not yet been “but should be

settled by this Court.” Sup. Ct. R. 10(c). This Court

has not addressed the scope of abortion rights in the

prison context. Further, review is necessary because

the court of appeals decided this important federal

question in a way that conflicts with a relevant

decision of this Court. Id.

The court of appeals opinion below conflicts

with a prior decision of this Court. In Maher v. Roe,

432 U.S. 464, 478-80 (1977), this Court held that the

Constitution did not forbid a State from pursuing a

policy of furthering childbirth by choosing to pay the

expenses incident to childbirth in its Medicaid

program but not to pay the expenses incident to

nontherapeutic abortions in that program. Thus, the

Constitution should not forbid a State from pursuing

a policy in support of childbirth by choosing to pay

expenses of its prisoners that are incident to

transporting them for childbirth but declining to pay

expenses that are incident to the transportation of

prisoners for nontherapeutic abortions.

Consideration of the conflict of the decision in this

case with the Maher decision requires consideration

of this Court, especially in light of the State of

Missouri’ strong policy in support of childbirth.

In furtherance of its interests in safety and

efficient use of resources, as well as in support of the

state policy in favor of childbirth, the Missouri

Department of Corrections decided that it would not

transport pregnant prisoners to outside medical

facilities for them to obtain’ nontherapeutic

abortions.! Even if the safety and efficient use of

resources were not grounds for the decision not to

transport for nontherapeutic abortions, the

Department's policy is constitutionally sustainable

based on the State’s policy in favor of childbirth.

More than 30 years ago, this Court ruled that

a State could, as a matter of policy, use the funds at

its disposal to support childbirth and decline to use

such funds to pay for nontherapeutic abortions.

Maher v. Roe, 432 U.S. 464 (1977). In Maher, a class

of women unable to obtain Medicaid assistance for

abortions challenged the State of Connecticut’s

regulation denying Medicaid coverage for

nentherapeutic abortions. Id. at 467. The district

court ruled that the Equal Protection Clause

' The Department has in the past and continues to

transport prisoners to outside medical facilities when necessary

for them to obtain medically necessary care, including

transports for therapeutic abortions.

prevented a State from excluding payments for

expenses related to nontherapeutic abortions where

that program paid medical expenses incident to

pregnancy and childbirth. Jd. at 468. After

determining that the challenge should be measured

under rational basis review, this Court noted the

strong interest of States in encouraging normal

childbirth and ruled that this interest provided a

sufficient constitutional justification in the state

decision to cover expenses related to childbirth in its

Medicaid program, but not the expenses related to

nontherapeutic abortions. Jd. at 478-80.

Missouri’s policy to pay the expenses to

transport inmates for medically necessary care

(including abortions when medically necessary), but

not the expenses for abortions that are not medically

necessary, is no different than Connecticut's

Medicaid regulation. Just as Connecticut's choice

not to use public funds to pay expenses incident to

nontherapeutic abortions was constitutionally valid,

so is Missouri's choice not to use public funds to pay

the travel and security expenses incident to

transporting inmates for nontherapeutic abortions.

In contrast to the Maher holding that a state may

appropriately decide not to use its resources to

finance medically unnecessary abortions, the court of

appeal’s opinion in this case requires Missouri to

expend public funds for such procedures. This Court

should hear this case to assess the inconsistency

between the Maher decision and the court of appeal’s

opinion.

Additionally, this Court should consider the

important federal question of whether a woman's

right, within certain limits, to elect to terminate a

pregnancy is one of those rights that is so

inconsistent with incarceration that it does not

survive imprisonment. The court of appeals

remarked that the Department identified the right to

an abortion as a privacy right and compared it to the

right to make decisions about marriage as another

privacy right. App. A-6, n. 2. The court of appeals

then determined that, just as the right to marry does

not completely end at the prison gate, neither does

the right to choose an abortion. Id.

The ability .of prison authorities to

accommodate at least some incidents to the right to

marriage, however, is significantly greater than their

ability to accommodate the incidents to the right to

an abortion. A marriage may be performed within

the security perimeter of a prison, all visitation

between spouses may be required to occur within the

prison walls, and communications may occur in

writing, without the incarcerated spouse ever leaving

confinement. In contrast, abortions occur only

outside of the prison and in surroundings that can be

volatile. App. A -8- A-9. Thus, while it may be true

that certain accommodations to the right to marriage

can be made consistent with requirements of

incarceration, the same is not true with regard to

any accommodation to the right to an abortion.

Unlike visits between spouses, expressions of

emotional support, and perhaps certain other

incidents of marriage, there is no ability by a prison

to permit an abortion that does not breach the

confinement and _ security requirements of

imprisonment. The right to an abortion is really

more akin to the right to procreate, which has been

determined to be a right that does not survive

imprisonment. Gerber v. Hickman, 291 F.3d 617,

621-23 (9th Cir. 2002), cert. denied, 537 U.S. 1039

(2002).

CONCLUSION

For these reasons, the Court should grant the

petition for a writ of certiorari.

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General

JAMES R. LAYTON

State Solicitor

MICHAEL PRITCHETT

Counse! of Record

Assistant Attorney General

EMILY A. DODGE

Assistant Attorney General

P.O. Box 899

Jefferson City, MO 65102

Phone No. (573) 751-3321

Fax No. (573) 751-9456

Counsel for Petitioner

May 27, 2008

APPENDIX

TABLE OF CONTENTS

APPENDIXA —_~ .

Eighth Circuit Court of Appeals’ Opinion,

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APPENDIX B

United States District Court's Order

Dismissing Case With Prejudice,

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APPENDIX C

Eighth Circuit Court of Appeals’ Order,

Fepruary 27, 2008................: LEPC ASOT CAT A44

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 06-3108

Jane Roe,

Appellee

Larry Crawford, Director of the Missouri

Department of Corrections; Cyndi Prudden, Acting

Superintendent Women’s Eastern Reception,

Diagnostic and Correctional Center, in

her official capacity,

Appellants

Submitted: September 24, 2007

Filed: January 22, 2008

Before WOLLMAN, HANSEN, and RILEY, Circuit

Judges

RILEY, Circuit judge.

The Missouri Department of Corrections (MDC)

instituted a policy of prohibiting transportation for

elective, nontherapeutic abortions (MDC policy).

Plaintiff Jane Roe (Roe) requested transportation for

an elective abortion, and was denied. The district

court granted Roe’s request for emergency

preliminary injunctive relief, and ordered the MDC

to provide Roe with transportation outside of the

MDC facility (referred to by the parties as an

“outcount”). Roe amended her complaint and sought

injunctive reliec on behalf of a class consisting of all

women in the custody of the MDC who seek elective,

nuntherapeutic abortions. The district court certified

A2

the class (Plaintiffs). Both parties moved for

summary judgment, which the district court granted

in favor of the Plaintiffs. The district court reasoned

the MDC policy is unreasonable under the

Fourteenth Amendment using the four-part test

established by Turner v. Safley, 482 U.S. 78, 89-91,

107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) for reviewing

the reasonableness of prison regulations impacting

constitutional rights. The district court also found

the Plaintiffs’ Eighth Amendment rights were

violated, determining that the desire for an elective

abortion constitutes a serious medical need to which

the MDC officials were deliberately indifferent. On

appeal, the MDC contests both findings. Although

we conclude the district court erred in its Eighth

Amendment analysis, and on one aspect of the

Turner analysis, we affirm tne ultimate judgment.

I. BACKGROUND

Before September 5, 2005, the MDC had a policy of

providing transportation outcounts for inmates

wanting to terminate their pregnancies. On that

date, the MDC altered its policy, such that inmates

would be transported for abortions only “[i]f [the]

abortion is indicated due to threat to the mother’s

life or health, and if approved by the Medical

Director in consultation with the Regional Medical

Director.” The MDC cited security concerns and cost

savings motivating the change in policy. Although

treatments for other conditions and injuries may be

classified as elective, the attending physician may

override the general policy of denying elective

medical outcounts and authorize the outcount by

determining that the care is in fact medically

necessary. However, under the policv regarding

A3

abortions, the MDC determined “fo]utcounts for

elective abortions wil! no longer be authorized.”

Plaintiff Roe, on behalf of herself and others

similarly situated, challenged the legality of this

MDC policy in federal district court. The district

court granted summary judgment in favor of Roe,

reasoning that under the Turner four-part

reasonableness test, the MDC policy was an

unreasonable restriction on inmates’ Fourteenth

Amendment right to terminate a pregnancy. Roe v.

Crawford, 439 F.Supp.2d 942, 949-53 (W.D.Mo.2006).

The district court also found Roe’s’ Eighth

amendment rights were violated, determining the

desire for an elective abortion constitutes a serious

medical need to which the MDC officials were

deliberately indifferent. Id. at 953.

II. STANDARDS OF REVIEW

We review the grant of summary judgment de novo,

viewing the record most favorably to the non-moving

partv. Tipler v. Douglas County, 482 F.3d 1023, 1025

(8 Cir.2007). Summary judgment is appropriate if

the record shows “that there 1s no genuine issue as to

any material fact and that the moving party is

entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c); accord Knowles v. Citicorp

Mortgage, Inc., 142 F.3d 1082, 1085 (8 Cir.1998).

Certain guiding principles come into play when

federal courts review policy decisions made by a

state’s executive branch. Specifically, “[w]here, as

here, the exercise of authority by state officials is

attacked, federal courts must be constantly mindful

of the special delicacy of the adjustment to be

preserved between federal equitable power and State

administration of its own law.” Rizzo v. Goode, 423

A4

U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)

(quotation omitted); see also Angela R. v. Clinton,

999 F.2d 320, 326 (8th Cir.1993) (“Federal courts

operate according to institutional rules and .

procedures that are poorly suited to the management

of state agencies.”).

HI. DISCUSSION

A. Turner Supplies the Appropriate Test

The district court found the applicable test for

determining the constitutionality of the MDC policy

was that articulated by the Supreme Court in

Turner, Roe, 438 F.Supp.2d at 947-49. Roe

contended, as she did in her opening brief on appeal,

that Turner is inapplicable and her Fourteenth

Amendment claim should be subjected to the same

standard of review that would apply outside the

prison context. See Id. at 947 (maintaining that the

“undue burden” test should apply).FN! Essentially,

Roe argued that the Supreme court's decision in

Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141,

16C L.Ed.2d 949 (2005) should be extended. See Roe,

439 F.Supp.2d at 947-49. In Johnson, the Supreme

court reviewed a policy that separated inmates on

the basis of race. 543 U.S. at 507-08, 125 S.Ct. 1141.

In so doing, the Court articulated that it had

consistently held “that all racial classifications

jimposed by government] ... must be analyzed by a

reviewing court under strict scrutiny.” Jd. at 505, 125

S.Ct. 1141 (citation and internal quotation marks

omitted). The Court reasoned the Turner test had

FN}, During oral argument, Roe conceded the applicable test in

the prison context is still Turner. We agree, and for

completeness, we address the issue.

AS

never applied to racial classifications, and applied

‘only to rights that are inconsistent with proper

incarceration.” Jd. at 510, 125 S.Ct. 1141 (quotation

marks and citation omitted).

Racial classifications are viewed as immediately

suspect, see id. at 509, 125 S.Ct. 1141, and their

usage can seriously damage the integrity of a prison

system. See id. at 510-11, 1255 S.Ct. 1141. On the

contrary, Turner applies to prison restrictions

relating to rights not typically subject to strict

scrutiny. See id. at 510, 125 S.Ct. 1141 (listing First ~

Amendment rights, access to courts, attendance at

religious services, and some due process claims such

as involuntary medication and restrictions on the

right to marry, as remaining subject to Turner).

Restrictions on abortion are not subject to strict

scrutiny, but are void only when they place an

“undue burden” on access to abortion. See Planned

Parenthood v. Casey, 505 U.S. 833, 874, 112 S.Ct.

2791, 120 L.Ed.2d 674 (1992). Additionally, like

marriage or attendance at religious services, access

to abortion involves burdens on the prison system

concerning allocation of resources which necessitate

either allowing inmates out of the prison setting, or

bringing persons into the facilities. Simply

refraining from classifying prisoners on the basis of

race involves no such burden. Johnson, 543 U.S. at

510, 125 S.Ct. 1141 (“The right not to be

discriminated against based on one’s race ... is not a

right that need necessarily be compromised for the

sake of proper prison administration.”). The district

court thus properly declined to apply the “undue

A6

burden” test in this matter, and Turner represents

the proper framework for analysis.FN2

B. Applying Turner

Prison regulations’ restricting constitutional

guarantees are valid only if the regulations are

“reasonably related to legitimate penological

FN2, The MDC recognizes the Supreme Court in Roe v. Wade,

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), determined

women have, within certain boundaries, a right to elect to

terminate their pregnancies. Nevertheless, the MDC argues,

because the right is grounded in the right to privacy, and some

privacy interests are inconsistent with imprisonment, the

privacy right to terminate a pregnancy does not survive

incarceration. However, this argument does not withstand

analysis. Although some rights may be so_ inherently

inconsistent with incarceration, such as the right to travel, thet

any assertion of the right while in prison would automatically

fail, even rights that are, in part, inconsistent with

incarceration survive imprisonment, at least enough so that the

Turner balancing test applies. Indeed, while contending that

rights stemming from the right to privacy are automatically lost

upon incarceration, the MDC admits “decisions about marriage”

are among such privacy rights. This admission then fails to

recognize the Turner decision itself struck down a regulation

prohibiting marriage. See 482 U.S. at 94-99, 107 S.Ct. 2254. In

so doing, the Supreme Court recognized that “[t]he right to

marry, like many other rights, is subject to substantial

restrictions as a result of incarceration.” Id. at 95, 107 S.Ct.

2254. But, the right te marry does not completely disappear

upon imprisonment. See id. at 96, 107 S.Ct. 2254. Prison

regulations impacting the right to marry may well be upheld,

but must at least survive the scrutiny of the Turner balancing

test. Id. Logically, this same analysis holds true for access to

abortions as well. Certainly, no prisoner could simply elect to

leave the institution at will to obtain an abortion. This does

not, however, mean any exercise of the right is entirely

inconsistent with incarceration, any more than is marriage, or

the right to correspond with persons outside of the facility. See

Turner, 482 U.S. at 91-92, 107 S.Ct. 2254.

A7

interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254. to

determine whether a prison regulation is reasonably

related to a legitimate penological interest, courts

consider (1) whether there exists a “valid, rational

connection between the prison regulation and the

legitimate governmental interest put forward to

justify it”; 92) “whether there are alternative means

of exercising the right that remain open to prison

inmates”; (3) “the impact accommodation of the

asserted constitutional right will have on guards and

other inmates, and on the allocation of prison

resources generally”; and (4) the existence, or

absence of “obvious easy alternatives ... that fully

accommodate [ ] the prisoner’s rights at de minimis

cost to valid penological interests.” Jd. at 89-91, 107

S.Ct. 2254 (citations and internal quotation marks

omitted).

1, Reasonable Relationship to Legitimate

Penological Interests.

Roe argues the MDC’s claim of security concerns was

feigned, and the MDC was not entitled to Turner

deference. The district court noted that, at the

summary judgment stage, such a determination

would be inappropriate because there existed at least

a genuine issue of material fact regarding the

sincerity of the MDC’s asserted security concerns.

Roe, 439 F.Supp.2d at 950. The district court

therefore accepted the security concerns as credible.

Id. This determination was appropriate, and is

supported by the prison administrators’ testimony

articulating security concerns as a motivating factor

for the change in the MDC policy. The district court

then found the MDC policy does not rationally and

actually advance the legitimate security interest. Jd.

A8

The MDC asserts alternate ways in which the policy

purportedly advances security interests. First, the

MDC contends any time an inmate is removed from

prison, security is at risk. The MDC argues

“[rjeducing security risks by reducing the number of

outcounts is a rational means of furthering the

legitimate penological interest in prison security.”

The problem with this argument is that, based on

the record, the MDC policy does not appear to reduce

the number of outcounts. For example, other than

for those inmates released before carrying their

children to term, the MDC would still need to

transport the pregnant inmates on outcounts for

medical examinations associated with pregnancy,

including delivery. During a pregnancy, the MDC

refers inmates for outcounts for a number of

procedures, including some of the ultrasounds.

Although the MDC argues abortions may require two

days, so do some deliveries. Many of these

procedures are provided at the expense of

Correctional Medical Services, which contracts with

the MDC for the care of inmates. Inmates tend to

have higher pregnancy-risk factors than the general

population, necessitating increased levels of prenatal

care, which could increase the number of outcounts

necessary during the continued pregnancies. Thus,

the MDC policy does not necessarily reduce the

number of overall outcounts and the related security

risk.

Second, the MDC claims the existence of protesters

and the configuration of the clinic result in higher

risks to the guards and inmates, as well as a greater

potential for inmates to escape. Jd. The concerns

about heightened risks for the guards and inmates

represents a far more defensible argument.

Accepting, as the district court did, that security

AY

concerns formed the basis of the MDC policy,

sufficient evidence in the record demonstrates an

attempt to minimize outcounts for abortions

rationally advances this legitimate concern. For

instance, a local Planned parenthood President and

CEO testified large numbers of protesters regularly

picket the facility, write down license plate numbers,

and photograph and videotape the entering vehicles.

_ Although the district court found it was “undisputed

that in the past eight years, picketers have never

interfered with the safety or security of ... inmates

or staff,” id., this conclusion does not automatically

make the MDC policy irrational. Prison officials

should not be required to wait until a problem occurs

before addressing the risk. See Turner, 482 U.S. at

89, 107 S.Ct. 2254 (reasoning prisons should have

the authority “to anticipate security problems and to

adopt innovative solutions to the _ intractable

problems of prison administration.”).

Roe argues that deferring to this security interest

would create an impermissible “heckler’s veto,” and

that the government cannot allow protesters to

effectively block the exercise of a legally protected

activity.FN3 Although logically analogous, the

“heckler’s veto” has been disapproved more in the

context of First Amendment freedom of speech, and

as it relates to the general public. See, e.g. Lewis v.

Wilson, 253 F.3e 1077, 1081-82 (8th Cir.2002). If the

FN3 The “hecklers veto” involves situations in which the

government attempts to ban protected speech because it might

provoke a violent response. See e.g., Cohen v. California, 403

U.S. 15, 23, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In such

situations, “the mere possibility of a violent reaction to

[protected] speech is simply not a constitutional basis on which

to restrict [the] right to speak.” Lewis v. Wilson, 253 F.3d 1077,

1081 (8 Cir.2001) (citing Cohen, 403 U.S. at 23, 91 S.Ct. 1780).

Al0

State of Missouri banned abortion in general, on the

basis of concerns about societal disruption due to

protests at the clinics, the principle would no doubt

apply and the government would be required to take

steps to ensure access, rather than enacting a ban.

In the prison context, it is already established that

whether or not a policy infringing on constitutional

rights is valid depends on a balancing test which

grants far more leniency to prison administrators

than the government would be granted as to the

general public. See ‘Turner, 482 U.S. at 89-91, 107

S.Ct. 2254. Additionally the relative availability of

the right at issue is appropriately addressed by the

second Turner factor. See Turner, 482 U.S. at 90,

107 S.Ct. 2254.

Given the deference owed to prison officials in such

matters, See Rizzo, 423 U.S. at 378, 96 S.Ct. 598, the

district court erred in finding the MDC policy is

irrational simply because no problems occurred in

the past.FN4 However, the Turner analysis does not

end here. Turner, 482 U.S. at 89-91, 107 S.Ct.

2254.FN5

FN4- The MDC’s contention that inmates removed from the

facility for abortion outcounts are more likely to attempt an

escape than inmates transported for other medical outcounts is

less convincing. In contrast to inmates transported for labor

and delivery, inmates on abortion outcounts are always

physically guarded both during transport and at the facility.

Additionally, for the reasons stated previously, the MDC's

argument that the MDC policy results in cost reductions by

lessening the number of outcounts is without sufficient

evidentiary support.

FN5- = Although Monmouth County Corr. Instit. Inmates v.

Lanzaro, 834 F.2d 326 (3d Cir.1987), supports Roe’s case in

other respects, Monmouth County officials did not assert

security as a justification for its policy. See id. at 336 & n. 15.

All

2. Alternative Means of Obtaining an Elective

Abortion

The “second factor relevant in determining the

reasonableness of a prison restriction ... is whether

there are alternative means of exercising the right

that remain open to prison inmates.” Turner, 482

U.S. at 90, 107 S.Ct. 2254. The district court found

the MDC policy entirely eliminated Plaintiffs’ access

to elective abortions. Roe, 439 F.Supp.2d at 951-52.

This determination is correct, and weighs heavily

against the validity of the MDC policy. Under the

MDC policy, transportation outcounts are provided

only for medically necessary, therapeutic abortions

due to a threat to the mother’s life or health. Once

incarcerated in the MDC, an elective abortion, which

the Supreme Court determined is a liberty interest

protected under the Fourteenth Amendment, is

entirely unavailable. The MDC recognizes this, and

argues alternative means of obtaining an elective

abortion exist: that is, the inmates can obtain an

abortion before incarceration. This contention lacks

merit. First, many inmates either will not know of

their pregnancies, or will not have elected to

terminate their pregnancies, before incarceration.

Second, the MDC points to no authority, and we find

none, indicating the Supreme Court has determined

a right may be entirely eliminated during

incarceration, simply because the right could have

been exercised before imprisonment. In Turner, the

Supreme Court struck down a regulation prohibiting

marriage other than in exceptional circumstances.

Turner, 482 U.S. at 95-99, 107 S.Ct. 2254. Under the

MDC's reasoning, a complete prohibition on

marriage would have been valid, because the

inmates could have chosen to marry before beginning

their prison terms, or after the imprisonment ended.

Al2

In the case lending the most support to the MDC’'s

position, Victoria W. v. Larpenter, 369 F3d_ 475 (5%

Cir.2004), the policy upheld by the Fifth Circuit did

not act as a complete bar to elective abortion. See id.

at 486 (“Elective [abortion] is not prohibited ...

[rJather, an inmate can receive the [abortion] by

following a set procedure.”). The policy in Victoria

W. created an administrative hurdle, requiring

inmates to obtain a court order authorizing an

elective abortion before obtaining one. Jd. at 477,

486. The goals of lessening outcounts, and of

providing a layer of liability protection for the

correctional facility, were recognized as valid. Id. at

486. The policy was rationally related to these goals

and there were alternatives available, because the

procedure was not onerous, and did not act as a

complete bar to elective abortion. See id. at 486-87.

The Fifth Circuit even distinguished Monmouth

County Corr. Instit. Inmates v. Lanzaro, 834 F2d 326

(8d Cuir.1987), because the policy at issue in

Monmouth “required inmates to get a court order

releasing them on their own recognizance, making it

more difficult for full-security inmates to obtain an

order of release.” Victoria W., 369 F.3d at 488

(emphasis added). The Fifth Circuit-recognized-that

‘/cjritically, the options allowed by the [policy at

issue], unlike the policy in Monmouth, ensure that a

pregnant inmate who wants an abortion will obtain a

court order.” Jd. (emphasis added). The MDC's

policy goes far beyond the policy upheld in Victoria

W., and beyond the policy struck down in Monmouth

(a requirement that the inmate obtain a court order

allowing temporary release without supervision).

Monmouth, 834 F2d at 329, 339-40. By completely

eliminating any alternative means of obtaining an

elective abortion, the MDC policy’ represents

Al3

precisely the “exaggerated response to ... security

objectives” that Turner forbids. Turner, 482 U.S. at

97-98, 107 S.Ct. 2254.

3. Impact on Other Inmates and Prison

Resources

The third Turner factor is “the impact

accommodation of the asserted constitutional right

will have on guards and other inmates and on the

allocation of prison resources generally.” Jd. at 90,

107 S.Ct. 2254. The MDC contends, similar to its

argument relating to security interests, that any

increase in the number of outcounts places a strain

on financial and staff resources that could have a

negative impact on services provided to other

inmates.FN6é This argument fails for two reasons

*First, as discussed in Section III(B) 1, supra, the

policy does not logically reduce the overall number of

outcounts. Second, an MDC official admitted the

cost savings would be “minimal ... as compared to

our general budget.” Thus, this factor also weighs

against the reasonableness of the policy. The

purported impact of the MDC policy is so minimal

that it further demonstrates the MDC policy

represents an “exaggerated response to ... security

objectives.” See Turner, 482 U.S. at 97-989, 107 S.Ct.

2254.

FN6. The MDC asserts the policy regarding elective abortions

represents nothing more than a specific application of a general

policy regarding elective procedures. The record belies this

claim and demonstrates that abortion is treated differently

than other elective procedures. For example, although

treatment for a particular injury may be classified as elective,

the attending physician may override the policy and authorize

the outcount. Conversely, under the MDC policy regarding

abortions “[o]utcounts for elective abortions will no longer be

authorized.” (emphasis added).

4. The Existence of Ready Alternatives.

[The fourth prong of Turner focuses on the absence

or existence of “ready alternatives.” 482 U.S. at 90,

107 S.Ct. 2254. “[I]f an inmate claimant can point to

an alternative that fully accommodates the

prisoner's rights to de minmis cost to valid

penological interests, a court may consider that as

evidence that the regulation does not satisfy the

reasonable relationship standard.” Jd. at 91, 107

S.Ct. 2254. As described before, maintaining the

current policy results in de minimis cost savings, at

best, and arguably increases costs, both in terms of

financial resources and in terms of risks to staff (due

to increased outcounts for prenatal care). Thus,

reverting to the previous policy allowing outcounts

for elective abortions represents a “ready

alternative.” Alternatively, the MDC _ could

implement a policy similar to that in Victoria W.,

requiring inmates to obtain a court order authorizing

the abortion. See 369 F.3d at 479. Therefore, this

factor aiso reinforces our holding that the MDC

policy cannot withstand scrutiny under Turner.

C. Eighth Amendment Analysis

In addition to finding the policy invalid under

Turner, the district court also found the MDC policy

violated Roe’s Eighth Amendment right to be free

from cruel and inhumane punishment.FN’ In light of

FN? Incarceration does not alter the test relating to the

constitutional protection against cruel and unusual

punishment. See Johnson, 543 US. at 511, 125 S.Ct. 1141

(judging Eighth Amendment violations “under the ‘deliberate

indifference’ standard”); see also Hartsfield v. Colburn, 491 F.3d

394. 396 (2007) (citation omitted) (“[I}t is now settled that

deliberate indifference is the appropriate standard of

Al5

recent developments of the law, this finding was

erroneous.

Under the Eighth Amendment, the MDC must

“provide medical care for [{prisoners].” Estelle v.

Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976). “To prevail on an Eighth Amendment

claim of deliberate indifference to serious medical

needs, an inmate must prove that he suffered from

one or more objectively serious medical needs, and

that prison officials actually knew of but deliberately

disregarded those needs.” Hartsfield v. Colburn, 491

F.3d 394, 396-97 (2007) (citation omitted).

The district court found, for the same reasons

outlined in Section III(B), supra, the MDC has

knowingly erected a complete barrier to Roe’s ability

to obtain an elective abortion. See Roe, 439

F.Supp.2d at 953. Thus, the district court

determined the MDC administrators must have been

aware of the consequences of their actions and were,

therefore, deliberately indifferent to the elimination

of Roe’s access to an elective abortion See id.

Beyond the MDC’s discredited general argument

that pregnant inmates retain access to elective

abortions because they can _ terminate their

pregnancies before incarceration, the district court’s

determination that the MDC policy blocks access to

elective abortions is not challenged further. Rather,

the MDC challenges the contention an elective,

nontherapeutic abortion represents a “serious

medical need.” In effect, the MDC contends any

culpability for <il claims that prison officials failed to provide

pretrial detainees with adequate food, clothing, shelter, medical

care, and reasonable safety.” (citation and internal quotation

marks omitted)).

Al6

elective procedure, by its very nature, cannot

represent a “serious medical need.” Indeed, some

language in Eighth Circuit precedent appears to

support this contention. See Camberos v. Branstad,

73 F.3d 174, 176 (8 Cir.1995) (defining a “serious

medical need” as “one that has been diagnosed by a

physician as requiring treatment, or one that is so

obvious that even a layperson would easily recognize

the necessity for a doctor’s attention.”) (citation

omitted) (emphasis added). Logically, if a procedure

is not medically necessary, then there is no necessity

for a doctor’s attention.

A recent district court opinion from the Fifth Circuit

supperts this contention. See Victoria W. v.

Larpenter, 205 F.Supp.2d 580, 600-01 (E.D.La.2002).

The district court in Victoria W. recognized that

other courts had found “serious medical needs” in

herniated discs, broken jaws, life-threatening ulcers,

risk of suicides, and heart attacks. Id. at 600

(citations omitted). The court then found:

At its heart, the Eighth Amendment protects

prisoners from cruel and unusual punishment

and needless suffering. An elective abortion

sought for non-medical reasons ... is simply

lacking in similarity and intensity to the other

medical conditions that have been found to be

serious medical needs under the Eighth

Amendment.

Id. at 601. The Victoria W. district court concluded a

medically necessary abortion certainly could qualify

as a “serious medical need,” but “[t]he inconvenience

and financial drain of an unwanted pregnancy are

simply insufficient in terms of the type of egregious

Al7

treatment that the Eighth Amendment prescribes.”

Id.°N8

On the other hand, the Third Circuit earlier in 1987

rejected reasoning identical to that of the district

court in Victoria W. See Monmouth, 834 F.2d at 348-

49. In Monmouth, the Third Circuit rejected the

penal institution’s argument that an_ elective

abortion does not represent a “serious medical need.”

Id. In so doing, the Third Circuit majority reasoned:

That pregnancy itself is not an “abnormal

medical condition” requiring remedial, medical

attention does not place it beyond the reach of

Estelle. Nor does the fact that pregnancy

presents a woman with the alternatives of

childbirth or abortion affect the legal

characterization of the nature of the medical

treatment necessary to pursue. either

alternative... Here, the relevant medical care

is that necessary to effectuate the inmates’

choices to terminate their pregnancies. We

find that the... inmates. have firmly

demonstrated the seriousness of the needed

medical care.

Id. at 348 (emphasis added) (case italicization

altered). The court majority concluded:

FN8.) We recognize that, although upheld on appeal, the Fifth

Circuit did not expressly adopt this same reasoning. See

Victoria W., 369 F.3d at 489-90. The Fifth Circuit reasoned the

policy at issue did not block access from elective abortions. The

policy in Victoria W. simply required the plaintiff to obtain a

court order authorizing her to receive an elective abortion. Jd.

In Roe’s case, this reasoning would not apply, because the MDC

policy, as discussed in Section III(B), supra, completely denies

access to inmates’ elective abortions.

Al8

[I]t is evident that a woman exercising her

fundamental right to choose to terminate her

pregnancy requires medical care to effectuate that

choice. Denial of the required care will likely result

in tangible harm to the inmate who wishes to

terminate her pregnancy. Characterization of the

treatment necessary for the safe termination of an

inmate’s pregnancy as “elective” is of little or no

consequence in the context of the Estelle “serious

medical needs” formulation. An _ elective,

nontherapeutic aboriicn may nonetheless constitute

a “serious medical néed” where denial or undue delay

in provision of the procedure will render the inmate’s

condition “irreparable.”

Id. at 349 (case italicization altered).

As to the breadth of its decision, the Monmouth court

itself was split on the interpretation of “serious

medical need.” See 834 F.2d at 355 (Mansmann, J.,

concurring). Concurring with the holding that the

policy at issue was overbroad under the Turner

analysis, Judge Mansmann ‘“stop[ped] _ short,

however, of adopting the majority’s blanket

assumption that the Eighth Amendment is also

implicated merely because abortion is a medical

procedure[,]” and was “unwilling to join what

amounts to a quantum leap to the conclusion that a

state’s refusal affirmatively to provide elective

abortions to female prisoners constitutes cruel and

unusual punishment.” Id. at 253-54. Judge

Mansmann further criticized the majority for

“bootstrapping the liberty interest protected by the

Fourteenth Amendment into the Ejighth[,]” and

reasoned that the only way denying elective

abortions could be considered cruel and unusual

punishment would be to assume “a commonly

Al9

perceived inhumanity of refusing to provide elective

abortions as a general matter.” Id. at 355.

Roe cites Johnson v. Bowers, 884 F.2d 1053, 1056

98 Cir.1989) for the contention this court adopted

the Monmouth majority position and rejected the

notion that Eighth Amendment serious medical

needs analysis can be reduced to distinguishing

“elective” and “medically necessary” care. Bowers,

however, does not actually stand for this broad of a

proposition. In Bowers, the inmate had been stabbed

and suffered nerve damage to his left forearm, ©

leaving the prisoner unable to twist his wrist into a

palms up position or to open his hand fully. Bowers,

884 F.2d at 1054. The reviewing physician

repeatedly recommended surgery to avoid a

permanent handicap. Jd. at 1056. We refused to

accept the “gratuitous classification of Johnson's

surgery as ‘elective.” Jd. We further explained such

a gratuitous classification “does not abrogate the

prison’s duty, or power, to promptly provide

necessary medical treatment for prisoners.” Id.

(citing Monmouth, 834 F.2d at 348 n. 32) (emphasis

added). Thus although citing to Monmouth, Bowers

only referenced Monmouth as support for the more

limited holding that a gratuitous classification of a

medical procedure as “elective” will not

automatically remove the prisou’s responsibility to

provide treatment, when that treatment is actually

“necessary” for the health of the prisoner. Id.

(emphasis added).

The Supreme Court has made it clear that the state

has no affirmative duty to provide, fund, or help

procure an abortion for any member of the general

population. See Rust v. Sullivan, 500 U.S. 173, 178,

203, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)

(upholding federal regulation prohibiting federally

A20

funded medical clinics from counseling or referring

women for abortion); Webster v. Reproductive Health

Serv., 492 U.S. 490, 511, 109 S.Ct. 3040, 106 L.Ed.2d

410 (1989) (upholding Missouri statute prohibiting

the use of public facilities or personne! from

performing nontherapeutic abortions); Harris v.

McRae, 448 U.S. 297, 302, 311, 318, 100 S.Ct. 2671,

65 L.Ed.2d 784 (1980) (upholding congressional

restriction of Medicaid funds for any abortion

unnecessary to protect the life of the mother, or in

cases involving rape or incest).FN9

The views articulated in the Monmouth concurrence

and in the Victoria W. district court opinion

represent the better interpretation of Eighth

Amendment requirements and are more consistent

with Supreme Court precedent. We hold an elective,

nontherapeutic abortion does not constitute a serious

medical need, and a prison institution’s refusal to

provide an inmate with access to an elective,

nontherapeutic abortion does not rise to the level of

deliberate indifference to constitute an Eighth

FN9. These cases demonstrat: the Monmouth majority decision

was exceptionally broad, in that the Monmouth decision also

went so far as to hold that the prison was required to fund the

procedure for those inmates unable to pay. Monmouth, 834

F.2d at 344-45 & n. 28, 351 (reasoning that the state must pay

for treatment of “serious medical needs” under the Eighth

Amendment, and finding that elective abortion constitutes such

a need). When courts have found “serious medical needs” those

needs have been medical necessities society would commonly

fund via Medicaid or similar programs for those who cannot

afford care. See Victoria W., 205 F.Supp.2d at 600. Medical

conditions need not be emergencies in order to be considered

serious. See Ellis v. Butler, 890 F.2d 1001, 1003 n. 1 (8%

Cir.1989). However, even the most basic medical provisions

classified as serious under Estelle represent care that society

has long considered “necessary” and will provide for the

indigent.

A2]

Amendment violation. On this issue, the district

court erred.

IV. CONCLUSION

Although the district court erred in finding the MDC

policy invalid under the Eighth Amendment, the

MDC policy cannot be maintained under the

Fourteenth Amendment in light of Turner. The

judgment of the district court is affirmed.

C.A.8 (Mo.), 2008.

A22

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

No: 05-4333-CV-C-DW

JANE ROE,

-Plaintiff

LARRY CRAWFORD, et al.

Defendants

ORDER

[Filed: July 18, 2006}

Before the Covrt are Parties' cross-motions

for summary judgment. (Docs. 57 and 60). For the

following reasons, Fiaintiffs' Motion for Summary

Judgment (Doc. 57) is GRANTED Defendants'

Motion for Summary Judgment is DENIED.

I. Factual Background

This case-stems from the official policy of the

Missouri Department of Corrections ("DOC")

prohibiting transportation of pregnant inmates off- -

| Both Plaintiffs’ and Defendants’ Motion for Summary

Judgment address identical legal arguments and, as discussed

below, present no genuine issues of material fact. Accordingly,

the Court addresses the motions and legal arguments therein

simultaneously.

A23

site to provide abortion care for nontherapeutic

abortions.2, Missouri DOC’ maintains two

institutions for female offenders: Women's Eastern

Reception, Diagnostic and Correctional Center

("“WERDCC"), and the Chillicothe Correctional

Center. All pregnant inmates are incarcerated at

WERDCC.

DOC transports inmates from DOC

institutions for, among other things, court

appointments medical appointments, work release,

intra-institution transfers, and occasionally to take

the State Board of Cosmetology examination. Any

departure from institutional grounds is referred to as

an "“outcount.". WERDCC handles approximately

eight outcounts per day, seven days a_ week,

averaging 197 outcounts per month in 2005.

DOC contracts with Correctional Medical

Services ("CMS") for the provision of medical care

to inmates in the Department's custody. CMS

provides a range of health services on-site at

WERDCC, including dental care, mental health

care, radiology, optometry and mammography.

When an inmate requires specialized medical,

mental health, or dental services beyond the

capability of the on-site health care system, CMS

personnel refer her to an off-site specialist or

facility. For all off-site medical appointments, CMS

personnel schedule the appointment and notify the

office of the Chief of Custody of the date and time.

The office of the Chief of Custody is responsible for

making the necessary security and _ transport

arrangements. Of the roughly 200 outcounts that

the Chief of Custody handles per month, about 155

are for medical care. Given the volume of medical

2 Defendants refer to nontherapeutic abortions as

“elective.” The Court uses these terms interchangeably.

A24

outcounts, it is not uncommon for the office of the

Chief of Custody to reschedule or rearrange

appointments depending on staff and _ vehicle

availability.

In any given month, there are anywhere from

35 to 50 pregnant inmates at WERDCC. CMS

provides pregnancy-related care to these inmates

on site, but also transports inmates off-site for

obstetrical or gynecological care. In 2005, Defendants

transported approximately 91 inmates off-site for

labor and delivery. An inmate in labor is

transported to the hospital without any restraints,

regardless of her custody level. Two officers

typically provide the transport and one officer will

remain with the inmate at the hospital throughout

the duration of her stay, anywhere from one to

three days, on average. Defendants pay for all the

costs associated with prenatal care and childbirth,

including transportation and security.

For several years prior to July 2005,

Defendants had provided access to nontherapeutic

abortion services to inmates who wished to

terminate their pregnancies. Pursuant to the DOC

policy under which these outcounts would occur,

neither WERDCC nor DOC is involved in the

process of obtaining an elective abortion for an

inmate. The inmate and her social worker would be

responsible for determining the cost of the

procedure and scheduling the procedure.

From 1998 to 2005, Defendants transported

seven inmates for abortion services, each of which

was considered elective by Defendants. Under the

former policy, the abortions are typically performed

at Reproductive Health Services of Planned

Parenthood of the St. Louis Region (RHS), and all

inmates are responsible for paying for the abortion

procedure. Two female corrections officers

A25

accompany the inmate to RHS for the procedure,

which typically takes one 8-hour shift. While

inmates arrive at RHS with wrist restraints, they

are not restrained during the procedure.

During this time in which Defendants

provided transport for abortion services, no security

problems were reported during any abortion-

related outcount, nor did transport of an inmate for

an abortion cause delays in another inmate

receiving medical care. When compared to DOC's

general budget, the costs to DOC for an abortion

outcount are, according to Defendants, "infrequent"

and "minimal." Moreover, the costs associated with

an abortion outcount are similar to the general

costs associated with medical transports.

In early 2005, the issue of discontinuing

transports for abortion services first arose. At this

time, DOC was facing considerable budget cuts.

Hearings were held on the Department's budget

and Defendants were questioned by the Missouri

House and Senate about the practice of transporting

inmates for abortion services. Defendants were

contacted by the legislative branch, both via letter

and in person, regarding concerns over transports

for elective abortions. Up until July 2005, the

Policy remained unchanged.

On or about July 6, 2005, Defendants

received a request from inmate JT for an abortion.

Her request was initially approved by Defendant

Cynthia Prudden, then Acting Superintendent of

WERDCC. An _ abortion appointment was

scheduled for July 8, 2005 but the procedure was

postponed pending approval at the executive level.

At the request of Steve Long, Acting Director of the

3 To protect inmates’ confidentiality, inmates are

referred to by their initials or by a pseudonym.

A26

Division of Adult Institution, Patricia Cornell,

Assistant Director of the Division of Adult

Institution, prepared a memorandum reviewing the

impact abortion transports had on DOC's costs and

resources. Comparative costs to DOC in providing

inmates with pregnancy related care, including

transporting pregnant inmates for prenatal care

and labor and delivery were not censidered at this

time, or thereafter. On July 19, 2005, Long

informed Prudden, via memorandum, that JT's

request was denied because the procedure was

elective and not required to maintain her health.

He stated that the transport "presents

unnecessary security risks and requires staff

resources that are better utilized in other

operational areas. Additionally, state statute

prohibits the use of our funds to assist with an

abortion that is not necessary to save the life of

the mother."

On August 22, 2005, Plaintiff Jane Roe was

transferred to WERDCC from California custody.

Roe was initially admitted to WERDCC in early

2005 on a drug charge. She was subsequently

paroled, but re-arrested in California for violating

the conditions of her probation. She learned of her

pregnancy while in custody in California and

requested access to abortion services at that time.

Before she could obtain the procedure, however,

she was returned to Defendants' custody and

readmitted to WERDCC. Upon readmittance, Roe

asked Defendants for access to abortion services

and subsequently repeated this request to various

medical and non-medical personnel at WERDCC.

Her request was denied on August 30, 2005.

Upon the decision of Larry Crawford and

Steve Long, in consultation with General Counsel

Daniel Gibson, on September 5, 2005, DOC Policy IS

A27

11-58 was revised to state in relevant part, that

Defendants will transport inmates for abortion care

if "an abortion is indicated due to threat to the

mother's life or health, and if approved by the

Medical Director in consultation with the Regional

Medical Director" According to Crawford, the

reason for the Policy change was prompted by

concerns over "security, staff, money and a statute

that clearly was not encouraging and may actually

be saying that it was unlawful for a nonmedical [sic]

purpose.”

Plaintiff Roe, after contacting counsel and

attempting to administratively resolve the matter of

Defendants' August 30 denial of her request, sought

emergency temporary relief from this Court on

October 12, 2005. On October 13, 2005, the Court

granted Plaintiffs Motion for a Preliminary

Injunction and ordered Defendants to transport

Plaintiff for the purpose of providing medical

services to terminate her pregnancy. After a series

of delays prompted, in part, by Defendants' outright

refusal to comply with the Court's Order, Plaintiff

Roe was transported to RHS on October 20, 2005 to

receive medical services to terminate’ her

pregnancy. Thereafter, Plaintiff amended her

Complaint and moved to certify the action as a class

action. On November 28, 2005, the Court certified

the following class pursuant to Federal Rule of Civil

Procedure 23(b)(2):

All pregnant women who are seeking or may

in the future seek nontherapeutic abortions

and who are in the custody of Defendants at

the time Plaintiff Roe filed her Verified

Complaint in this case or who will be placed

in the custody of Defendants in the future

A28

and may while in the custody of Defendants

seek a nontherapeutic abortion.

Il. Summary Judgmenic Standard

Federal Rule of Civil Procedure 56(c) provides

that summary judgment shall be rendered if the

"pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law." Issues of fact must be

material to a resolution of the dispute between the

parties; where the only disputed issues of fact are

immaterial to the resolution of the legal issues,

summary judgment is appropriate. Case _v. ADT

Automotive, 17 F. Supp. 2d 1077 (W.D. Mo. 1997)

(citing Gei Away Club, Inc. v. Coleman, 969 F.2d

664, 666 (8th Cir. 1992)).

In ruling on a motion for summary judgment, it

is the court's obligation to view the facts in the light

most favorable to the adverse party and to allow the

adverse party the benefit of all reasonable inferences

to be drawn from the evidence. Anderson v. Liberty

Lobby, 477 U.S. 242, 252-255 (1986); Inland Oil and

Transport Co. v. United States, 600 F.2d 725, 727 - 28

(8th Cir.), cert. denied, 444 U.S. 991 (1979).

III]. 14th Amendment Claim

Plaintiffs' first claim alleges that Defendants’

Policy violates Plaintiffs' Fourteenth Amendment

right to an abortion, as articulated in Roe v. Wade,

Parenthood v. Casey, 505 U.S. 833 (1992).

A. Standard of Review

It is well-settled that imprisonment does not

automatically deprive a prisoner of his or her

constitutional rights or valid constitutional claims.4

Turner v. Safely, 482 U.S. 78, 84 (1987).

Imprisonment does permit greater restriction of

constitutional rights than would otherwise be

constitutionally valid and many constitutional rights

enjoyed prior to incarceration are curtailed or lost

upon imprisonment. Beard v. Banks, 126 S.Ct. 2572,

2577-78 (2006); Overton v. Bazzetta, 539 U.S. 126,

128 (2003). As a matter of longstanding general

principle, a prison regulation that impinges upon

inmates' constitutional rights is valid “if it is

reasonably related to legitimate penological

interests." Turner, 482 U.S. at 89. More recently,

however, the United States Supreme Court has held

that a prison regulation impinging on inmates' right

to be free from racial discrimination should be

analyzed under a strict scrutiny standard of review,

not pursuant to the Turner reasonable-relationship

test. Johnson v. California, 043 U.S. 499 (2005). In

so ruling, the Court stated the. Turner applies only to

those rights "inconsistent with proper prison

administration." Id. at 510.

Plaintiffs argue that in light of Johnson, the

Court should scrutinize their Fourteenth

Amendment claim not pursuant to Turner, but under

4 In various instances throughout the briefing of these

motions, Defendants argue that many of inmates’ constitutional

rights are completely foreclosed as a result of incarceration,

including the right to receive an abortion. Defendants’

arguinent in this respect is unfounded. Federal courts have

taker. great pains to recognize the valid constitutional claims of

inmates sad to make clear that “[pjrison walls do not forma a

barrier separating prison inmates from the protections of the

Constitution.” Turner, 482 U.S.C. at 84 (quoting Procunier v,

Martinez, 416 U.S. 396, 405-406 (1974)).

A30

the same standard of review that would apply outside

of the prison context - the Casey undue burden test.

Casey, 505 U.S. 833.

This argument warrants a brief discussion of

both Turner and Johnson. In Turner, the court was

presented with constitutional challenges to two

rules: one barring inmate-to-inmate correspondence

and another restricting inmate marriage. Turner,

482 U.S. at 91-93. Turner balanced the principle that

certain constitutional rights survive incarceration

with the principle that prison administration is best

left to the legislative and executive branches, not

federal courts. Id. at 84-85. In balancing these

considerations, Turner held that a prison regulation

that impinges upon an inmate's constitutional rights

is valid if "it is reasonably related to legitimate

penological interests" and articulated four factors

relevant in determining the constitutionality of a

regulation.> Id. at 89. The Supreme Court upheld

the rule barring inmate-to-inmate correspondence

as constitutional and invalidated the regulation

restricting inmate marriage.

In Johnson, the plaintiff brought an equal

protection challenge to a prison policy that placed new

or ts2nsferred inmates with cellmates of same race

during initial evaluation. The Court of Appeals

evaluated the prison regulation under Turner and

upheld the regulation as reasonably related to a

legitimate penological interest. Upon review, the

5 These factors, discussed more thoroughly below, are as

follows: (1) whether the policy rationally and act:ially advances

a neutral and legitimate government interest; (2) whether the

prisoner has alternative means of exercising the same right; (3)

the effect proposed accommodations will have on prison

resources; and (4) whether the existence of obvious, easy

alternatives that impose a de minimis cost reflect the

unreasonableness of the regulation. Turner, 482 U.S. at 89-91.

A31

Supreme Court reversed, holding that the regulation

should have been subject to a strict scrutiny review

rather than the more lenient Turner standard. In so

ruling, the

Court emphasized that the Turner reasonable-

relaticnship test is applied "only to rights that are

‘inconsistent with incarceration.” Johnson, 543 U.S.

at 510 (citacions omitted). The Court reasuned that

the right to be free from racial discrimination is not a

right "that need necessarily be compromised for the

sake of proper prison administration" and therefore is

not susceptible to the logic of Turner. Id. at 510

(quotations and citations omitted). .

Ple:ntiffs argue that a woman's due process

right to choose to terminate a pregnancy is, like the

right not to be discriminated against based on one's

race, not a right that need necessarily be

compromised for the sake of proper prison

administration. Id. at 510. Under this reasoning, the

Defendants’ Policy would be subject to the undue

burden test articulated in Casey.

The Court declines to read Johnson so broadly.

The Supreme Court has consistently held that

incarceration necessarily limits many privileges and

rigkts, and in Johnson, expressly referred to many

rights that may be so limited, such as First

Amendment challenges to prison regulations,

restrictions on freedom of association, limitations on

inmate correspondence, restrictions on inmates' access

to courts, restrictions on receipt of subscription

publications, the involuntary medication of mentally

ill prisoners, and restrictions on the right to marry.

Id. at 1149 (citations omitted). The Court finds that a

due process claim challenging a restriction on a

woman's right to have an abortion is more similar to a

due process claim challenging a restriction on the

A32

right to many than it is to an equal protection

challenge to a raced-based prison regulation. A

woman's right to terminate her pregnancy is

encompassed by the right of privacy founded in the

Fourteenth Amendment's concept of personal! liberty.

Roe v. Wade, 93 S.Ct. 705, 727 (1973). This right is

far from unqualified; the Supreme Court in Roe

expressly rejected the idea that the right to have an

abortion is unlimited. Id. at 727. In contrast, the right

to be free from racial discrimination kas, in all

circumstances, including the prison context, been

zealously guarded from encroachment by the

Supreme Court. See, e.g.. Johnson 543 U.S. at 505.

This Court agrees with Chief Judge Walker of the

Northern District of California, who opined that

Johnson "appeared to reaffirm the application of

Turner's reasonable relationship analysis to ‘rights

that are inconsistent with proper incarceration, '

specifically, freedom of association, a right referred to

in Johnson as one that may be properly limited in the

prison context. Stewart v. Alameida, 418 F.Supp.2d

1154, 1162 (N.D. Cal. 2006). This Court accordingly

holds that as Johnson expressly affirmed that some

due process claims are properly analyzed under

Turner, Plaintiffs' instant due process claim is most

properly analyzed under Turner.

Furthermore, no court to consider Johnson has

interpreted its holding as broadly as Plaintiffs here

suggest. See e.g., Tolbert v. McGrath, No. C 04-3039

SI (PR), 2005 WL 3310065 at *6 (N.D. Cal., Dec. 7,

2005) (citing Johnson for the proposition that "[w]here

a prison regulation (other than a race-based one)

impinges on inmates' constitutional rights, the

regulation or practice is valid if it is reasonably

related to legitimate penological interests"); Meggett

v. Penn. Dept. of Corr., 892 A.2d 872, 885 (Pa. 2006)

(limiting Johnson to the holding that "Turner was

A33

never intended to extend to equal protection cases

that arise in prison that implicate suspect classes.").

Accordingly, the Court declines to analyze

Plaintiffs’ Fourteenth Amendment claim under

Casey and instead will apply the four-part test

announced in Turner.

B. Analysis

As stated above, under the _ standard

articulated in Turner, prison regulations that curtail

constitutional rights are valid only if they are

"reasonably related to penological interests." Turner

482 U.S. at 89. To determine whether a policy that

restricts inmates' constitutional right is reasonably

related to a legitimate penological interest, courts

consider (1) whether the policy "rationally and

actually advances a neutral and _ legitimate

government interest; (2) whether the prisoner has

alternative means of exercising the same right; (3) the

effect proposed accommodations will have on prison

resources; and (4) whether the existence of ‘obvious,

easy alternatives’ that impose a de minirnis cost"

reflec} the unreasonableness of the regulation.

Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir.

1990) (quoting Turner, 482 U.S. at 89-91).

1. Reasonable relationship to Penological interests

Turner first requires the existence of "a ‘valid,

rational connection’ between the prison regulation

and the legitimate governmental interest put

forward to justify it." 482 U.S. at 89.

Legitimate penological interests include the

deterrence of crime, rehabilitation of prisoners, and

institutional security. Monmouth County Corr. Instit.

Inmates v. Lanzaro, 834 F.2d 326, 333 (38d Cir. 1987)

A34

(citations omitted). See also O'Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987); Procunier, 416

U.S. at 412.

Defendants put forth the following reasons to

justify the Policy: (1) security concerns; (2)

conservation of prison resources, both in terms of

costs and availability of staff, and (3) the possibility

that transport of an inmate for an abortion will delay

other scheduled medical appoints; and (4) the

existence of a state statute prohibiting the use of state

funds or facilities for an abortion.

Out of the many penologica] interests put

forward by Defendants, only Defendants' purported

security interest constitutes a valid penological

interest. The other asserted interests - conservation

of prison resources and the possibility that transport

of an inmate for an abortion will delay other

scheduled medical appointments - are _ not

independent valid penological interests and are more

appropriately considered under Turner's third prong.

Lanzaro, 834 F.2d at 336-337 & n.18. Defendants

also argue that the existence of a state statute

prohibiting the use of state funds or facilities for an

abortion justifies the Policy. While a state certainly

has a legitimate interest, penological or not, in

abiding by its own laws, as discussed below, this

argument fails as a matter of law.

a. Security Concerns

As a threshold matter, Plaintiffs argue that

Defendants' concern for security in no way motivated

Defendants’ change of policy and is little more than

post-hoc rationalizing. Instead, Plaintiffs argue that

the undisputed facts show that implementation of the

Policy was triggered by politics and budget cuts and

that Defendants are therefore not entitled to Turner

A35

deference. Quinn v. Nix, 983 F.2d 115,118 (8th Cir.

1993) (prison officials are "not entitled to the

deference described in Turner . . . if their actions are

not actually motivated by legitimate penological

interests at the time they act."). While the

combination of undisputed facts relied upon by

Plaintiffs for this proposition certainly implies that

Defendants did not consider security implicaticns in

implementing the Policy, because this motion is one

for summary judgment, the Court is obliged to view

all facts and draw all inferences in favor of the non-

moving party. Anderson, 477 U.S. at 252-255.

Accordingly, the Court will, for the purposes of this

motion, accept the proffered security concern as

credible and assess whether the Policy rationally

and actually advances this legitimate government

interest.

Every prisoner transport raises a variety of

security concerns, for the prisoner, the guard(s), and

third parties. In this case, the undisputed evidence

shows that inmates who choose to terminate a

pregnancy and must be transported outside of prison

for that purpose pose no greater security risk than

any other inmate that requires outside medical

attention. Lanzaro, 834 F.2d at 338. Seven days a

week, Defendants transport many different prisoners

off-site for medical and non-medical reasons,

averaging nearly 200 transports each month at

WERDCC alone. Out of these thousands of outcounts

over the years, only ten transports have occurred for

abortion procedures from 1998 - 2005, all without

incident.

Defendants raise numerous arguments, none

of which present a genuine issue of material fact on

this point. They first claim that there are greater

security concerns for inmates on outcounts to receive

abortion services because of the presence of picketers

A36

at facilities providing abortion services. Defendants

fail to present any material fact showing that the

presence of picketers in fact increases security

concerns. Rather, it is undisputed that in the past

eight years, picketers have never interfered with the

safety or security of DOC inmates or staff. Next,

Defendants claim that inmates transported for

abortion are more likely than other pregnant inmates

on medical outcounts to attempt an escape. Defendants

again fail to offer evidence substantiating this claim.

Conversely, the undisputed evidence is that, unlike

inmates transported for labor and delivery, inmates on

abortion outcounts are restrained both during

transport and upon arrival at the facility. Lastly,

Defendants contend that abortion outcounts result in

reduced security in the prison facilities. The

undisputed facts show that coverage at WERDCC is

not reduced because officers are specifically assigned

to transport shifts and additional officers are

scheduled in advance to cover extra transport shifts

as necessary.

The undisputed evidence shows that

Defendants' Policy is not related to any perceived

security risks. It prohibits transports for all inmate

elective abortions - regardless of the specific security

risks posed by a particular inmate, thereby

impermissibly centering “around the nature of the

treatment." Lanzaro, 834 F.2d at 338.

b. Missouri State Prohibition on the Use of Missouri

State Funds to Assist with an Abortion

Defendants also argue that the Policy is

justified on the grounds that (a) the State of Missouri

is not constitutionally obligated to subsidize

nontherapeutic abortions; and (b) Missouri law

prohibits the use of Missouri funds to assist with an

8 Ree

Pa

a

;

A37

abortion not necessary to save the life of the mother,

thereby justifying the Policy.

Defendants’ arguments on this point are less

than clear. First, this case simply does not concern

state subsidization of abortion services. To the extent

that Defendants argue that Missouri is not

constitutionally obligated to subsidize abortion

services, they fail to address what would be the

relevant point - whether providing transport to an

inmate to receive an abortion constitutes the use of

public funds to obtain an abortion. However, the

issue of whether Missouri's statutory ban on

assisting an abortion prohibits transport of an

inmate to a medical facility for the procedure is

already a matter of established Eighth Circuit law.

Upon the State's urging, the Eighth Circuit rejected

this very argument in Reproductive Health Servs. v.

Webster, 851 F.2d 1071, 1084, rev'd on other

grounds, 492 U.S. 490 (1989), holding explicitly that

Missouri law prohibiting the use of Missouri State

funds to assist with an abortion does not encompass

transport to the location where the procedure is to

take place:

We cannot accept the conclusion that

“assisting” an abortion encompasses

driving or escorting the patient to the

location where the procedure is to take

place. The abortion itself does not take

place in the vehicle or as the patient is

being escorted. We think a more

reasonable interpretation of the phrase

“assisting an abortion" is the one

suggested by the state: direct

participation in the surgical procedure

itself . . . the statute does not prevent

A38

state employees from arranging for

abortion procedures for inmates or from

transporting and escorting inmates to

abortion facilities.

Id. Defendants appear to contest this ruling by 40

the Supreme Court decision in Webster

Reproductive Health Servs., 492 U.S. 490, 509- 10

(1989) as follows: "Having held that the State's

refusal to fund abortions does not violate Roe v. Wade,

it strains logic to reach a contrary result for the use of

public facilities and employees." This statement,

however, is inapplicable to the use of Missouri funds

in assisting with an abortion. The Court of Appeals

for the Eighth Circuit clearly ruled that Missouri law

prohibiting the use of state funds did not include

driving an inmate to a location to receive an abortion

and the State of Missouri did not appeal that issue to

the Supreme Court.

2. Inmates’ Ability to Otherwise Exercise Their Right

"A second factor in determining the

reasonableness of a prison restriction . . . is whether

there are alternative means of exercising the right

that remain open to prison inmates.” Turner, 482 U.S.

at 90. Unless Defendants provide the necessary

transportation, Plaintiffs are unable to exercise their

right to choose to terminate their pregnancy.

Defendants argue that a plaintiff is not completely

barred from exercising that right as a plaintiff may

obtain an abortion before the incarceration term

commences. Turner analyzes the prison regulation,

as applied to inmates, not as applied to individuals

before incarceration. ld. at 90. It is clear that unless

Defendants provide transport for inmates to receive

A39

abortion services, there is no alternative way for an

innate to obtain a nontherapeutic abortion.

3. The Effect of Accommodation of the Right on

Prison Resources

A third consideration under Turner is "the

impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on

the allocation of prison resources generally." Id.

It is undisputed that the impact of a woman's

right to terminate a pregnancy does not increase the

burden on prison resources, including guards and

other inmates. Defendants argue that abortion

outcounts will force the rescheduling of other

scheduled medical appointments for prisoners and that

such a need to reschedule will unduly burden prison

staff. The facts present the contrary - abortion

outcounts have no distinct or measurable impact on

the ongoing prison need to schedule and reschedule

many medical appointments. At the WERDCC,

Defendants average almost 200 outcounts per month,

155 of which are for medical care. Defendants admit

that conflicts and rescheduling of transport of

inmates for off-site medical care are regular

occurrences and fail to present any evidence where

the transport of an inmate for an abortion has

hindered the medical care of another inmate, much

less any evidence that the need to reschedule medical

appointments for prisoners based on the need to

schedule abortion outcounts unduly impacts prison

resources.

Defendants also argue that the elimination of

nontherapeutic abortion outcounts will conserve prison

costs. The facts again contradict this argument.

Only ten transports have occurred for abortion

procedures from 1998 - 2005. In each instance, the

A40

pregnant inmate has been responsible for the cost of

abortion medical care. In contrast, WERDCC, on

average, has over 90 outcounts per year for delivery

and pregnancy-related medical care, the cost of which

is borne by the Defendants. In addition, Defendants

concede that the cost of transporting inmates for

abortion is “minimal.” In sum, the evidence shows

that the "[a]ccomodation of the inmate's choice to

terminate her pregnancy under the same terms

currently available to pregnant inmates option for

- childbirth will impose no more, and indeed probably

less, administrative and financial burdens on [prison]

officials." Lanzaro, 834 F.2d at 341- 42.

—- Jt __A |

4. Absence of Ready Alternatives and Existence of a

Ready Alternative at a De Minimis Cost

Lastly, Turner declares that "the absence of

ready alternatives is evidence of the reasonableness

of a prison regulation." Turner, 482 U.S. at 90.

Defendants’ Policy prohibits all

nontherapeutic abortions. Defendants argue that no

alternative to the Policy exists, and therefore, the

Policy is necessarily reasonable. This argument fails

to consider the full extent of the Supreme Court's

guidance in Turner. In discussing the absence of

ready alternatives to a prison policy, the Turner

court stated that if an inmate is able to point to "an

alternative that fully accommodates the prisoner's

right at de minimis costs to valid penological

interests, a court may consider that as evidence that

the regulation does not satisfy the reasonable

relationship standard." Id at 91.

The evidence shows that Defendants can fully

accommodate Plaintiffs' rights at a de minimis cost to

security, the penological interest articulated by

A4]

Defendants. As discussed above, provision of abortion

outcounts does not affect valid security interests.

Indeed, Defendants have accommodated the right

with little difficulty since 1998. It is clear that the past

pre-uce of providing transports has proven to be a

ready and workable alternative to the current Policy,

evidencing that "the regulation is not reasonable, but

is an exaggerated response' to prison concerns." Id.

at 90.

IV. Eighth Amendment

Plaintiffs also allege that Defendants’ Policy

violates the Eighth Amendment because it

constitutes deliberate indifference to inmates' serious

medical needs. Under the Eighth Amendment,

Defendants are obligated to "provide medical care for

those whom it . . . incarceratfes]." Estelle v. Gamble

429 U.S. 97, 103 (1976). Est-le announced a two-

pronged standard for Eighth Amendment claims: the

challenged action and/or policy must (1) exhibit

deliberate indifference on the part of prison officials

and (2) the prisoner's medical needs must be serious.®

Lanzaro, 834 F.2d at 346 (citations omitted).

Deliberate indifference is evident when officials

erect barriers and outright denials to medical

treatment. Id. at 347. Such deliberate indifference is

unconstitutional only when it is directed toward a

"serious medical need." As in Lanzaro, the relevant

medical need in this case is the abortion services

needed for inmates to terminate their pregnancies, if

6 Like the right to be free from discrimination based on

race, the right to be free from cruel and unusual punishment is

evaluated, not under Turner, but under the standard of review

that applies outside of the prison, the “deliberate indifference”

standard. Johnson, 543 U:S. at 511.

A4z

they so choose. Defendants argue, without legal

support, that nontherapeutic abortion is not a

"serious medical need." This Court adopts the

reasoning in Lanzaro where the Court of Appeals for

the Third Circuit found that denial of a

nontherapeutic abortion constitutes a "serious

medical need" under Estelle:

In sum, it is evident that a woman exercising

her fundamental right to choose to terminate

her pregnancy reauires medical care to

effectuate that choice. Denial of the required

care will likely result in tangible harm to the

inmate who wishes to terminate her

pregnancy. Characterization of the treatment

necessary for the safe termination of an

inmate's pregnancy as "elective" is of little or

no consequence in the context of the Estelle

"serious medical need" formulation. An

elective, nontherapeutic abortion may

constitute a "serious medical need" where

denial or undue delay in provision of the

procedure will render the inmate's condition

"irreparable."

Lanzaro, 834 F.2d at 349.

Having shown that Defendants intentionally

deny Plaintiffs’ the right to have an elective abortion,

in conjunction with the Third Circuit's designation of

a nontherapeutic abortion as a “serious medical

need," Plaintiffs have established the absence of a

genuine issue of material fact, and are accordingly

entitled to judgment in their favor as a matter of

law.

A43

V. Conclusion

For the forgoing reasons, the Court concludes

that Defendants' Policy violates both the Fourteenth

and Eighth Amendments of the United States

Constitution. Plaintiffs’ Motion for Summary

Judgment (Doc. 57) is GRANTED. Defendants'

Motion for Summary judgment is DENIED.

IT 1S SO ORDERED

/s/ DEAN WHIPPLE

Dean Whipple

United States District Judge

DATE: July 18, 2006

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 06-3108

Jane Roe, Appellee

Larry Crawford, Director of the Missouri

Department of Corrections; Cyndi Prudden, Acting

Superintendent Women’s Eastern Reception,

Diagnostic and Correctional Center, in her

official capacity, Appellants

Chuck Gross and Delbert Scott, Senators,

Amici on Behalf of Appellant

American College of Obstetricians and

Gynecologists, et al,

Amici on Behalf of Appellee

Appeal from U.S. District Court for the Western

District of Missouri-Jetierson City

(2:05-CV-04333-DW)

Order

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

February 27, 2008

Order Entered at the Direction of the court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans