Opposition Brief — Crawford v. Roe (No. 07-1491)

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No. 07-1491 FILED

a JUN 2 6-208

IN THE

S oat OF THE CLERK

Supreme Court of the Wnt "

<i EE <a

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,

Petitioners,

er eee

JANE ROE, individually and on behalf of all others

similarly situated,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

DIANA KASDAN

TALCOTT CAMP

LOUISE MELLING

STEVEN R. SHAPIRO

American Civil Liberties

Union Foundation

125 Broad Street

18th Floor

New York, New York 10004

(212) 549-2633

THOMAS M. BLUMENTHAL

Counsel of Record

165 North Meramec Avenue

6th Floor

St. Louis, Missouri 63105

(314) 727-2266

Cooperating Attorney for

the ACLU of Eastern

Missouri Fund

ANTHONY E. ROTHERT

ACLU of Eastern

Missouri Fund

454 Whittier Avenue

St. Louis, Missouri 63108

(314) 652-3111

QUESTION PRESENTED

Whether the Eighth Circuit Court of Appeals

properly held that the Missouri Depaiiment of

Corrections policy prohibiting inmates _ from

obtaining non-therapeutic abortions violates the

Fourteenth Amendment?

TABLE OF CONTENTS

QUESTION PRESENTED .........0.... eee eee ee eee i

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Brees wr AUTESORITIES. ................s0ssessvesseesees ill

STATEMENT OF THE CASE.....0:........c eee eeee ee 1

REASONS FOR DENYING THE WRIT............... 2

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TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)...... 5

Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991)........ 4

Doe v. Arpaio,

150 P.3d 1258 (Ariz. Ct. App. 2007)............scccsccsss 3, 5

Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999) .5

Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002)...... 5

Hoover v. Ronwin, 466 U.S. 558 (1984)..................228 7

Maher v. Roe, 432 U.S. 464 (1977) ................ eee 3, 6, 7

Monmouth County Correctional Institutional

Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) .. 4, 5

Roe v. Crawford,

396 F. Supp. 2d 1041-(W.D. Mo. 2005).......:csccceceeese-e- 2

Roe v. Leis,

No. C-1-00-651, 2001 WL 1842459

eo Me es ee ee 4-5, 5

Turner v. Safley, 482 U.S. 78 (1987) ................. passim

Victoria W. v. Larpenter,

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OTHER AUTHORITIES

U.B. GAPING A. SIMONE. KIEV, § La... .cccccccsccccaveccceveccens 2.6

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STATEMENT OF THE CASE

This case arises from the official policy of

Defendant Missouri Department of Corrections

(MDC) prohibiting pregnant inmates from obtaining

medical care for non-therapeutic abortions (the

Policy). As recounted in the decisions below, prior to

September 2005, “the MDC had a policy of providing

transportation outcounts for inmates wanting to

terminate their pregnancies.” Pet’r App. A2. The

inmate herself was responsible for paying the costs of

the abortion procedure. Pet’r App. A24. However, in

2005, the MDC altered its policy and determined

that “[o]Jutcounts for elective abortions will no longer

be authorized.” Pet’r App. A3 (internal quotation

marks omitted).' As the Eighth Circuit further

found, the Policy is not “a specific application of a

general policy regarding elective procedures.” Pet’r

App. Al3 n.6. Rather, “abortion is treated differently

than other elective procedures.” Id.

After the MDC repeatedly denied Plaintiff

Jane Roe’s request for an abortion she sought

emergency injunctive relief in federal district court,

which issued a preliminary injunction requiring the

MDC to transport her to a medical facility outside of

1 The State characterizes the Policy as allowing transports for

therapeutic abortions as “determined by physicians exercising

their professional judgment on a case-by-case basis.” Pet’r Br.

2. However, as the Eighth Circuit explained, under the terms of

the Policy, even an abortion indicated due to a threat to a

pregnant woman’s life or health is only authorized if “approved

by the Medical Director in consultation with the Regional

Medical Director.” Pet’r App. A2 (internal quotation mark

omitted). In any event, this case is not about how the Policy

applies to women in need of therapeutic abortions, an issue not

raised by the plaintiff class, which includes only women seeking

non-therapeutic abortions.

the prison. Pet’r App. Al. The State’s multiple

attempts to stay that preliminary injunction were

rejected by the district court, the court of appeals,

and this Court. Roe v. Crawford, 396 F. Supp. 2d

1041 (W.D. Mo. 2005) (denying stay of Oct. 13, 2005,

preliminary injunction), stay denied, No. 05-3790

(8th Cir. Oct. 14, 2005), 546 U.S. 959 (2005). Before

obtaining the abortion procedure, Roe amended her

compiaint to seek relief on behalf of a “class

consisting of all women in the custody of the MDC

who seek elective, nontherapeutic abortions,” and the

district court certified the class. Petr App. A1-2.

After completing discovery, the parties each moved

for summary judgment. The district court granted

declaratory and injunctive relief in favor of the

plaintiff class, holding that the Policy violated the

Fourteenth Amendment right to choose abortion and

the Eighth Amendment right to receive treatment for

serious medical needs.

The Eighth Circuit affirmed. It held that the

Policy did not violate the Eighth Amendment, but

that it was, under Turner v. Safley, 482 U.S. 78

(1987), an unreasonable prohibition on Plaintiffs’

Fourteenth Amendment rights. Pet’r App. A21.

REASONS FOR DENYING THE WRIT

The Court should decline to review this case

because the Eighth Circuit correctly held the Policy

unconstitutional under the Fourteenth Amendment,

and the State has failed to identify any “compelling

reasons” for granting review. See Sup. Ct. R. 10.

The Eighth Circuit’s analysis adheres to the

stariaards established by this Court for reviewing

inmates’ constitutional claims, see, e.g., Turner v.

Safley, 482 U.S. 78 (1987), and applies precisely the

same Turner standard used by every court to

consider policies obstructing incarcerated women’s

access to abortion care. See infra pp. 4-5. Indeed,

the absence of a circuit split confirms that this case

implicates no unsettled or conflicting standards of

law and does not warrant this Court’s review.?

Further, the decision below is wholly consistent with

this Court’s precedent and does not, as the State

contends, conflict with Maher v. Roe, 432 U.S. 464

(1977).

First, the State insists, as it did below, that a

woman's right to choose abortion does not survive

incarceration and, thus, that its Policy prohibiting

abortion is simply not subject to constitutional

review. Petr Br. 5-6. This argument was rightly

rejected by the Eighth Circuit as one that “does not

withstand analysis.” Petr App. A6 _n.z2.

Nonetheless, the State continues to advance this

proposition in an attempt to create an unsettled

question of federal law where none exists. The court

of appeals cogently explained the inconsistency

between the State’s view - that restrictions on

incarcerated women’s ability to obtain abortion

necessarily escape any constitutional review ~— and

this Court’s precedent:

Although some rights may be_ so

inherently inconsistent with

2 Just this term, this Court declined to review a state appellate

court decision that applied the same standard. Doe v. Arpaio,

150 P.3d 1258 (Ariz. Ct. App. 2007) (applying Turner and

holding unconstitutional county jail’s prohibition on abortion

unless inmate first obtained judicial authorization for

transport), cert. denied, 128 S. Ct. 1704 (2008).

incarceration, such as the right to

travel, that 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. ... In

[Turner]; the-Supremé Cotrrt recognized

that “[t]he right to marry, like many

other rights, is subject to substantial

restrictions as a result of incarceration.”

[Turner, 482 U.S.] at 95, 107 S. Ct.

2254. But, the right to marry does not

completely disappear upon

imprisonment. See id. at 96, 107 S. Ct.

2254. .... 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.

Pet’r App. A6 n.2. Indeed, every court to address the

issue has recognized that the right to abortion

survives incarceration. See Victoria W. v. Larpenter,

369 F.3d 475, 483-84 (5th Cir. 2004); Bryant ov.

Maffucci, 923 F.2d 979, 982-85 (2d Cir. 1991);

Monmouth County Corr. Inst'l Inmates v. Lanzaro,

834 F.2d 326, 334 n.11 (3d Cir. 1987); Roe v. Leis, No.

C-1-00-651, 2001 WL 1842459, at *3 (S.D. Ohio Jan.

10, 2001); Doe v. Barron, 92 F. Supp. 2d 694, 696

(S.D. Ohio 1999); Doe v. Arpaio, 150 P.3d 1258, 1261

(Ariz. Ct. App. 2007).

Similarly, consistent with every other court to

review a prison or jail policy restricting abortion

access, the Eighth Circuit applied the Turner

balancing test, under which a prison policy that

“impinges on inmates’ constitutional rights .. . is

valid if it is reasonably related to legitimate

penological interests,” 482 U.S at 89. See Victoria

W., 369 F.3d at 483-84 (applying Turner); Monmouth,

834 F.2d at 338-44 (same); Roe v. Leis, 2001 WL

1842459, at *2 (same); Arpaio, 150 P.3d at 1262

(same). As an initial matter, the Eighth Circuit

emphasized that the MDC’s total ban “goes far

beyond” the court-order requirements for abortion

challenged in the Victoria W. and Monmouth cases.

Pet’r App. Al2. As the court of appeals explained:

“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.” Pet’r App. All. Applying

Turner, the court of ‘appeals then weighed this

complete deprivation of plaintiffs’ rights against each

of the “alternate ways in which the _ policy

3. Gerber vu. Hickman, 291 F.3d 617 (9th Cir, 2002), cert. denied,

537 U.S. 1039 (2002), cited by the State, Pet'r Br. 6, does not

conflict with this uniform consensus. Gerber rejected a

prisoner's claim that he had a right to procreate by means of

providing sperm for artificial insemination while incarcerated.

That decision, and the underlying rationale ~ that “loss of the

right to intimate association is simply part and parce] of being

imprisoned,” 291 F.3d at 621 — does not apply to the right to

choose abortion.

purportedly advances security interests.” Pet’r App.

A8. It concluded that the “MDC policy represents

precisely the ‘exaggerated response to .. . security

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

97-98.” Petr App. Al2-13.4 The State does not even

suggest that the Eighth Circuit was wrong in

determining that the Policy is far more restrictive

than those reviewed by other courts, or in

determining, as did those courts, that the Turner

standard applies. The State therefore has not

identified any unsettled question of law or conflict

among the lower courts that warrants this Court’s

resolution.

Second, the State’s assertion that the decision

below warrants review because it conflicts with this

Court’s decision in a Medicaid funding case, Maher v.

Roe, 432 U.S. 464 (1977), see Pet’r Br. 3, is equally

untenable. In Maher, this Court’ upheld

4 Security was the only interest the State offered in defense of

the Policy in its initial appeal to the Eighth Circuit. See Pet’r

App. A6-10. The State did not argue that its preference for

childbirth over abortion should render’ the Policy

“constitutionally sustainable,” or that a contrary conclusion

would conflict with Maher, Pet'r Br. 4, until filing a petition for

rehearing. Because that petition was denied, this argument

was never addressed by the EFighth Circuit.

> Aside from the fact that the State’s reliance on Maher is so

clearly unfounded, the Court should decline review on this issue

for prudential reasons. The State raised Maher in its brief

opposing plaintiffs’ motion for summary judgment in the

district court, but then abandoned it on appeal to the Eighth

Circuit. It was thus never addressed by the Eighth Circuit even

though the State belatedly tried to raise it again in an

unsuccessful petition for rehearing. See supra n.4. Under these

circumstances, this Court should decline to consider it. See

Adickes v. S.H. Kress & Co., 398 U.S. 144, 148 n.2 (1970)

Connecticut's decision to pay the costs of childbirth

but not abortion for indigent women. In so doing,

this Court explained that Connecticut “may have

made childbirth a more attractive alternative,

thereby influencing the woman’s decision, but it . .

imposed no restriction on access to abortions that

was not already there.” 432 U.S. at 474. In short,

this Court upheld the regulation because it “place[d]

no obstacles absolute or otherwise in the pregnant

woman’s path to an abortion.” Jd. In contrast, the

MDC Policy does create an “absolute” obstacle. As

the Eighth Circuit found, and the State conceded, the

Policy makes non-therapeutic abortion “entirely

unavailable” to women once they are in the custody

of the MDC. Pet’r App. All. This critical distinction

renders insupportable the State’s contention that the

MDC’s Policy is “no different” than the Medicaid

regulation upheld in Maher, and that the Policy

simply advances a state preference for childbirth in a

similar fashion, Petr Br. 5. Thus, the Eighth

Circuit's decision —- that the MDC’s Policy

unconstitutionally bans abortion for incarcerated

women — is consistent with Maher and with this

Court’s decisions invalidating state laws that go well

beyond discouragement to. effectively prohibit

abortion. See Maher, 432 U.S. at 473-74 (explaining

that Connecticut funding regulation was “different in

kind from the laws invalidated in our previous

abortion decisions,” for example those’ that

(“Where issues are neither raised before nor considered by the

Court of Appeals, this Court will not ordinarily consider

them.”); see also Hoover v. Ronwin, 466 U.S. 558, 574 n.25

(1984) (holding that where respondent raised arguments for the

first time in a response to petitioner's motion for rehearing in

the court of appeals it was untimely and _ precluded

consideration).

“interposed an absolute obstacle”) (internal quotation

mark omitted).

CONCLUSION

For the foregoing reasons, the State’s petition

for a writ of certiorari should be denied.

Respectfully submitted,