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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1526%3A1. Public record. Not legal advice.