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Jane Roe v. Larry Crawford: ABORTION: Denying inmates transportation for abortion violates 14th Amendment not 8th Amendment

United States Court of Appeals
No. 06-3108
Jane Roe, *
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Larry Crawford, Director of the *
Missouri Department of Corrections; *
Cyndi Pruden, 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, non-therapeutic 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 relief on behalf of a class consisting of all women in the custody of
the MDC who seek elective, non-therapeutic abortions. The district court certified 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 (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 the ultimate judgment.
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 policy regarding abortions, the MDC determined “[o]utcounts for
elective abortions will 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.
We review the grant of summary judgment de novo, viewing the record most
favorably to the non-moving party. Tipler v. Douglas County, 482 F.3d 1023, 1025
(8th Cir. 2007). Summary judgment is appropriate if the record shows “that there is
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 (8th 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 U.S.
362, 378 (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.”).
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, 439 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
1During oral argument, Roe conceded the applicable test in the prison context
is still Turner. We agree, and for completeness, we address the issue.
the same standard of review that would apply outside of the prison context. See id.
at 947 (maintaining that the “undue burden” test should apply).1 Essentially, Roe
argued that the Supreme Court’s decision in Johnson v. California, 543 U.S. 499
(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. 507-08. In so doing, the Court articulated that it had consistently held “that all
racial classifications [imposed by government] . . . must be analyzed by a reviewing
court under strict scrutiny.” Id. at 505 (citation and internal quotation marks omitted).
The Court reasoned the Turner test had never applied to racial classifications, and
applied “only to rights that are inconsistent with proper incarceration.” Id. at 510
(quotation marks and citation omitted).
Racial classifications are viewed as immediately suspect, see id. at 509, and
their usage can seriously damage the integrity of a prison system. See id. at 510-11.
On the contrary, Turner applies to prison restrictions relating to rights not typically
subject to strict scrutiny. See id. at 510 (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 (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 (“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.”).
2The MDC recognizes the Supreme Court in Roe v. Wade, 410 U.S. 113 (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, 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. 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. 94-99. 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. But, the right
to marry does not completely disappear upon imprisonment. See id. at 96. 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
The district court thus properly declined to apply the “undue burden” test in this
matter, and Turner represents the proper framework for analysis.2
B. Applying Turner
Prison regulations restricting constitutional guarantees are valid only if the
regulations are “reasonably related to legitimate penological interests.” Turner, 482
U.S. at 89. 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”; (2) “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.” Id. at 89-91 (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.
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 “[r]educing 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
3The “heckler’s 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 (1971). In such situations, “the mere possibility of a
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. Id. The concerns about heightened risks for the guards and
inmates represents a far more defensible argument. Accepting, as the district court
did, that security 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 (reasoning prisons should have the authority “to anticipate security
problems and to adopt innovative solutions to the intractable problems of prison
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.3 Although logically analogous, the
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 (8th Cir. 2001)
(citing Cohen, 403 U.S. at 23).
4The 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.
5Although 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.
“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.3d 1077, 1081-82 (8th Cir. 2001). If the 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. Additionally, the relative availability of the right at issue
is appropriately addressed by the second Turner factor. See Turner, 482 U.S. at 90.
Given the deference owed to prison officials in such matters, see Rizzo, 423
U.S. at 378, the district court erred in finding the MDC policy is irrational simply
because no problems occurred in the past.4 However, the Turner analysis does not end
here. Turner, 482 U.S. at 89-91.5
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. 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. 96-99. 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.
In the case lending the most support to the MDC’s position, Victoria W. v.
Larpenter, 369 F.3d 475 (5th 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 . . . [r]ather, 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.
Id. 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
6The 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).
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 F.2d 326 (3d Cir. 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 “[c]ritically, 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.” Id. (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 F.2d at 329, 339-40. By completely eliminating any
alternative means of obtaining an elective abortion, the MDC policy represents
precisely the “exaggerated response to . . . security objectives” that Turner forbids.
Turner, 482 U.S. at 97-98.
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.” Id. at 90. 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.6 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 97-98.
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. “[I]f an inmate claimant can point to an alternative that
fully accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not satisfy the
reasonable relationship standard.” Id. at 91. 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 also
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
7Incarceration does not alter the test relating to the constitutional protection
against cruel and unusual punishment. See Johnson, 543 U.S. at 511 (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 culpability for all claims that
prison officials failed to provide pretrial detainees with adequate food, clothing,
shelter, medical care, and reasonable safety.” (citation and internal quotation marks
and inhumane punishment.7 In light of 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 (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, non-therapeutic abortion represents a “serious medical need.”
In effect, the MDC contends any elective procedure, by its very nature, cannot
8We 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. Id. 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.
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 (8th 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 supports 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 treatment that the Eighth Amendment proscribes.” Id.8
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:
[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
abortion may nonetheless constitute a “serious medical need” 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 353-54. Judge Mansmann further criticized the majority for “bootstrapping the
liberty interest protected by the Fourteenth Amendment into the Eighth[,]” and
reasoned that the only way denying elective abortions could be considered cruel and
unusual punishment would be to assume “a commonly 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 (8th 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. Id. at 1056. We refused to accept the “gratuitous classification of
Johnson’s surgery as ‘elective.’” Id. 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 medial procedure as “elective” will not automatically remove the prison’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 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 (1991) (upholding federal regulation
9These cases demonstrate 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 (8th 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.
prohibiting federally funded medical clinics from counseling or referring women for
abortion); Webster v. Reproductive Health Serv., 492 U.S. 490, 511 (1989)
(upholding Missouri statute prohibiting the use of public facilities or personnel from
performing non-therapeutic abortions); Harris v. McRae, 448 U.S. 297, 302, 311, 318
(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).9
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, non-therapeutic 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 Amendment violation. On this issue, the district court erred.
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.


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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