IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

)

JANE ROE1,

)

)

Plaintiff,

)

)

v.

)

)

LARRY CRAWFORD, Director of the Missouri )

Department of Corrections,

)

in his official capacity,

)

Serve:

)

Larry Crawford

)

Director, Missouri Department of Corrections )

2729 Plaza Drive

)

Jefferson City, MO 65109

)

)

and

)

)

CYNDI PRUDEN, Acting Superintendent,

)

Women's Eastern Reception, Diagnostic and )

Correctional Center, in her official capacity, )

Serve:

)

Cyndi Pruden

)

1101 E. Hwy 54

)

Vandalia, MO 63382

)

)

Defendants.

)

CIVIL ACTION NO. 05-4333-CV-C-DW
VERIFIED COMPLAINT FOR EMERGENCY TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTIVE RELIEF

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. This is a civil rights action challenging Defendants’ denial of access to medical
care to Plaintiff Jane Roe, a prisoner at the Women’s Eastern Reception, Diagnostic and
1 Plaintiffs are permitted to proceed under a pseudonym in termination of pregnancy cases. See Singleton v. Wulff, 428 U.S. 106, 177 (1976) (plurality opinion) (approving pseudonym as justified “by a desire to protect the privacy of her decision from the publicity of a court suit”). Plaintiff is withholding her name for reasons of privacy and in order to comply with the E-Government Act of 2002. Plaintiff will provide her name and prisoner identification number under seal upon request of counsel or Order of Court. See, Paragraph 7, below.

Correctional Center (“WERDCC”). Plaintiff is at the beginning of the second trimester of her pregnancy. She seeks access to a local medical facility where she can obtain medical services to terminate her pregnancy. Defendants have refused to release and transport Plaintiff for this procedure even though Defendants provide access to outside health care providers for other prisoners in need of outpatient medical care. As a result, Plaintiff cannot obtain the medical services she needs to terminate her pregnancy.
2. Defendants’ policy violates Plaintiff’s constitutional rights in two ways. First, pursuant to the policy, the prison deprives pregnant inmates of their Fourteenth Amendment right to reproductive choice. No legitimate penological interest justifies this deprivation. Moreover, by forcing Plaintiff to carry her unwanted pregnancy to term, WERDCC evinces deliberate indifference to her serious medical needs in violation of the Eighth and Fourteenth Amendments’ proscription of cruel and unusual punishment. For these reasons, the prison policy is invalid and Defendants should be enjoined from enforcing it.
JURISDICTION AND VENUE 3. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. 4. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202, and Rule 57 of the Federal Rules of Civil Procedure. 5. Venue is proper in the Western District of Missouri, Central Division, pursuant to 28 U.S.C. § 1391(b). Plaintiff is currently incarcerated at the Women's Eastern Reception, Diagnostic and
2

Correctional Center, in Vandalia, Missouri, which is subject to the jurisdiction of the Missouri Department of Corrections. The State is being sued through the Department Director in his official capacity. The Director is located in Jefferson City, Missouri, in this District , Central Division.
PARTIES 6. Plaintiff Jane Roe is a female over the age of eighteen years. She is an inmate in the custody of the Women’s Eastern Reception, Diagnostic and Correctional Center (WERDCC). She is pregnant and wishes to terminate her pregnancy. She has been sentenced to four years incarceration and has served two months of her sentence. 7. Plaintiff brings this action under a pseudonym in order to preserve her privacy and confidentiality, as well as to protect herself from harassment, public embarrassment, and humiliation. 8. Defendant Larry Crawford is the Director of the Missouri Department of Corrections (DOC). He is responsible for the care and custody of all inmates housed by the DOC. He is also responsible for promulgating and implementing the policies of the DOC. All actions of DOC employees alleged in this action were undertaken or carried out pursuant to the policies and direction of Defendant Crawford and/or were ratified by Defendant Crawford. Defendant Crawford is sued in his official capacity. 9. In all actions and at all times relevant to this action, Defendant Crawford and his agents were acting under color of state law. 10. Defendant Cyndi Pruden is an employee of the DOC and the Acting Superintendent of WERDCC. She is responsible for the care and custody of the inmates housed
3

at WERDCC. She is also responsible for carrying out the policies of WERDCC. All actions of WERDCC employees alleged here were undertaken or carried out pursuant to the policies and at the direction of Defendant Pruden and/or were ratified by Defendant Pruden. Defendant Pruden is sued in her official capacity.
11. In all actions and at all times relevant to this action, Defendant Pruden and her agents were acting under color of state law.
FACTUAL ALLEGATIONS 12. As of today, Plaintiff Roe is approximately sixteen to seventeen weeks pregnant measured from the first day of her last menstrual period (lmp). 13. After considerable thought, Plaintiff Roe wishes to terminate her pregnancy. 14. Plaintiff, a non-violent offender, was arrested in July in California on a Missouri warrant stemming from a parole violation. She learned she was pregnant shortly after being taken into custody. She first requested access to medical services to terminate her pregnancy at this time at the correctional facility in California. However, before she could obtain the procedure, she was transported to Missouri. She arrived at WERDCC on or about August 22. Immediately upon arrival at WERDCC, Plaintiff again requested access to medical services to terminate her pregnancy, making this request to the WERDCC intake nurse. Plaintiff was told that the nurse would schedule an appointment with the OB/GYN, which Plaintiff understood to be for medical services to terminate her pregnancy. When an appointment with the OB/GYN was not forthcoming, she repeated this request to several other nurses and medical personnel at WERDCC. She repeated this request to her caseworker, Ms. Raspberry (proper spelling unknown), on or about September 1, 2005, and was informed by Ms. Raspberry that she would
4

submit the relevant paperwork to DOC. Plaintiff specifically informed Ms. Raspberry that she was prepared to pay for the procedure herself. Although Plaintiff is indigent, she is prepared to borrow money from family and friends. She learned from Ms. Raspberry on about September 7, 2005 that her request for access to medical services to terminate her pregnancy was denied. She was told by Ms. Raspberry that all requests for non-therapeutic terminations are denied “because Governor Blunt wants them denied.” Only after being told that her request was denied did Plaintiff finally see the OB/GYN, on or about September 17, 2005. Plaintiff faces a sentence of four years, thus, Defendants’ policy will force her to carry the pregnancy to term. If so, Plaintiff would likely be separated from the child.
15. Pursuant to its policy, WERDCC has refused to temporarily release and transport Plaintiff Roe for medical services to terminate her pregnancy. WERDCC has also refused to pay for Plaintiff Roe’s procedure and the related costs, including transportation and security. WERDCC does not deny medical services access or transportation and security to other persons similarly situated in need of medical treatment.
16. Before filing this action, on October 5, 2005, Plaintiff’s Counsel spoke by phone with WERDCC Assistant Superintendent Bob Capowski who referred to Plaintiff’s files and then informed Counsel that she will not be transported to her appointment because of a “directive from the central office” and a DOC policy prohibiting WERDCC inmates from accessing medical services to terminate their pregnancies or WERDCC from transporting prisoners for such procedures. Counsel was advised that this directive originated with the Office of the Defendant Director. Counsel has attempted to contact DOC Counsel Daniel Gibson by phone since first speaking with Plaintiff on Wednesday, October 05, 2005. Counsel
5

has left numerous messages on DOC Counsel’s voicemail system, and with Counsel’s staff. None of these calls have been returned except a message to obtain the service address and facsimile number of Mr. Gibson. See Declaration of James G. Felakos.
17. On October 7, 2005, Counsel delivered via facsimile a demand letter attempting to resolve Plaintiff’s situation without litigation. See Exhibit 1 to Declaration of James G. Felakos. Counsel has received no response.
18. On information and belief, the nearest clinic that performs medical services to terminate pregnancy at Plaintiff’s stage of pregnancy is Reproductive Health Services of Planned Parenthood of St. Louis located at 4251 Forest Park Avenue, St. Louis, MO 63108.
19. On information and belief, at Reproductive Health Services, at this stage of Plaintiff’s pregnancy, procedures are only performed on Fridays. Reproductive Health Services is available to perform medical services to terminate Plaintiff’s pregnancy on October 14. If the procedure cannot be performed as a one-day procedure, it can be performed on October 14 and continuing on October 15.
20. Prior to the current administration, and as recently as 2004, inmates were routinely escorted to Planned Parenthood of St. Louis for the purposes of this medical procedure. See Declaration of Sharon Tobin. Inmates were escorted by two guards who were able to remain with the inmate the entire time, except during the actual procedure (during which they were stationed immediately outside the room). Id. When circumstances required, a guard could remain during the procedure. Planned Parenthood arranged for the procedures to occur in a private room apart from their regular clientele. Id.
6

21. If Defendants continue to refuse to provide Plaintiff with access to medical services to terminate her pregnancy, by the time her pregnancy advances another one to two weeks, she will no longer be able to terminate via a one day procedure. See Declaration of Sharon Tobin.
22. If Defendants continue to refuse to provide Plaintiff with access to medical services to terminate her pregnancy, by the time her pregnancy advances to 22 weeks, she will no longer be able to obtain such a procedure anywhere in the State of Missouri. See Declaration of Sharon Tobin.
23. Plaintiff is indigent. She cannot pay for the medical services required to terminate her pregnancy herself but is willing to borrow funds from family and friends if necessary to obtain the procedure. Plaintiff is unable to pay for the transportation and security costs necessary to obtain medical services to terminate her pregnancy, which costs would be prohibitive if she were required to pay them, effectively denying her access to the medical procedure.
24. Defendants’ denial of assistance in obtaining access to medical services to terminate her pregnancy has already delayed Plaintiff’s procedure. Plaintiff’s initial request for the procedure in Missouri was made on August 22. Plaintiff was made to wait for an OB/GYN appointment for three weeks. Subsequent to learning of the denial, Plaintiff had to seek counsel to obtain assistance obtaining the procedure. Plaintiff’s complaint reached this office on September 29. Counsel arranged a conference call with Plaintiff as soon as one could be held. This call occurred on Wednesday, October 05, 2005. Since her incarceration in Missouri, Plaintiff’s access to medical services to terminate her pregnancy has been delayed for six weeks.
7

25. Although medical procedures to terminate pregnancy are extremely safe, the risk medical complications from termination increases significantly with delay. Thus, the delay Plaintiff has already endured will subject her to increased risks in the procedure, which will only increase with any additional delay.
26. If Defendants are permitted to enforce the policy so as to deny Plaintiff’s constitutional right to terminate her pregnancy, Plaintiff will be forced to carry her unwanted pregnancy to term.
27. Unwanted pregnancy and childbearing cause severe mental distress. For a woman inmate who is already separated, often by great distances, from her customary support system of family and friends, the effects are aggravated. Plaintiff, for example, has already suffered anxiety and depression because of the prison’s obstruction of her efforts to terminate her pregnancy. She feels that continuation of the pregnancy would be unbearable.
28. Forced childbearing is particularly cruel for inmates who must deliver a child only to part with it for an extended period of time if not permanently.
29. On information and belief, WERDCC provides medical care for serious medical needs other than termination of pregnancy for all inmates, including the costs of prenatal care and childbirth for those pregnant inmates who choose to carry to term, and transportation to necessary medical facilities.
30. The harms Defendants impose on Plaintiff by virtue of their policy of prohibiting access to medical services to terminate her pregnancy are not justified by any legitimate penological objective or any other governmental interest.
8

31. In denying access to medical services to terminate pregnancy to pregnant inmates, Defendants have demonstrated, and continue to demonstrate, deliberate indifference to the serious medical needs of Plaintiff.
FIRST CLAIM FOR RELIEF (Fifth and Fourteenth Amendment; 42 U.S.C. §1983: Due Process) 32. The allegations of paragraphs 1 through 31 are incorporated as though fully set forth here. 33. By forcing Plaintiff to carry her unwanted pregnancy to term, and by delaying her termination of pregnancy to the detriment of her health, Defendants violate, and threaten to continue violating, the right of reproductive choice guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
SECOND CLAIM FOR RELIEF (Eighth and Fourteenth Amendment; 42 U.S.C. §1983: Denial of Medical Care)
34. The allegations of paragraphs 1 through 31 are incorporated as though fully set forth here.
35. Defendants know that the effect of the prison policy is to prevent Plaintiff from obtaining medical services to terminate her pregnancy.
36. By forcing Plaintiff to carry her unwanted pregnancy to term, and by delaying her procedure to the detriment of her health, Defendants impose cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment.
9

EMERGENCY INJUNCTIVE RELIEF (Plaintiff Roe)
37. Plaintiff Roe requests emergency injunctive relief to prevent imminent, irreparable harm. At Plaintiff Roe’s stage of pregnancy, the medical risks of a termination of pregnancy increase every day that the procedure is delayed. If Defendants continue to deny Plaintiff Roe access to medical services to terminate her pregnancy, Plaintiff Roe’s pregnancy will advance within one to two weeks to the point where she will no longer be able to terminate her pregnancy as part of a one-day procedure, thereby increasing the health risks to and burden on her associated with the procedure. In addition, if Defendants continue to deny Plaintiff Roe access to medical services to terminate her pregnancy, Plaintiff Roe’s pregnancy will advance within weeks to the point where she will no longer be able to obtain a termination of pregnancy, thereby irrevocably depriving her of her constitutional right to choose to terminate her pregnancy. Without immediate intervention from this Court, she will be forced to carry her pregnancy to term.
DECLARATORY RELIEF 38. An actual and immediate controversy exists between Plaintiff and Defendants. Plaintiff Doe is entitled to a declaration of rights with respect to this controversy. Without such a declaration, Plaintiff Doe will be uncertain of her rights and responsibilities under the law.
ATTORNEYS’ FEES 39. If Plaintiff prevails in this action, she is entitled to an award of reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
REQUEST FOR RELIEF Plaintiff respectfully requests that the Court grant:
1. A declaratory judgment holding unconstitutional Defendants’ policy of denying prisoners access to medical services to terminate pregnancy;
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2. An temporary restraining order, preliminary and permanent injunction requiring the Defendants to immediately transport Plaintiff Jane Roe to a local health care provider, preferably Planned Parenthood of St. Louis, at a scheduled appointed time for the purpose of providing medical services to terminate her pregnancy, including, but not limited to any necessary counseling, education, surgery, and follow-up services;
3. An award to Plaintiff of attorneys’ fees, costs and any other relief that this court may deem just and proper.
4. Such other relief as this Court deems just and proper.

Respectf

ully submitted,

/s/Thomas M. Blumenthal Thomas M. Blumenthal, MBEN 25601 165 North Meramec Ave, Sixth Fl St. Louis, MO 63105 Telephone No. 314-727-2266 Facsimile No. 314-727-2101 E Mail: tblumenthal@pcblawfirm.com COOPERATING ATTORNEYS FOR ACLU/EM COUNSEL FOR PLAINTIFF JANE ROE
James G. Felakos, MBEN 56356, Federal Bar # JF6965 Staff Attorney, American Civil Liberties Union of Eastern Missouri 4557 Laclede Ave St. Louis, MO 63108 Telephone No. 314-361-3635 Facsimile No. 314-361-3135 E Mail: jim@aclu-em.org
COUNSEL FOR PLAINTIFF JANE ROE

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Verification I have studied the allegations of the Complaint and verify that they are true to the extent I can do so based upon my personal knowledge.

/s/ Jane Roe___________________ Jane Roe (original signature on file with counsel for Plaintiff)

CERTIFICATE OF SERVICE
I hereby certify that on October 12, 2005, the Complaint, Motion, Memorandum of Law in Support, and Declarations of Sharon Tobin and James G. Felakos were served via Facsimile and First Class Mail upon the following:

Mr. Larry Crawford Director, Missouri Department of Corrections 2729 Plaza Drive Jefferson City, MO 65109 FAX 573-751-4099

Ms. Cyndi Prudden Acting Superintendent, Women's Eastern Reception, Diagnostic and Correctional Center P.O. Box 300 1101 E. Hwy 54 Vandalia, Mo. 63382 FAX (573) 635-7414

Mr. Daniel Gibson General Counsel Missouri Department of Corrections 2729 Plaza Drive Jefferson City, MO 65109 FAX 573-751-4099

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

) JANE ROE,1 individually and on behalf of all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

LARRY CRAWFORD, Director of the Missouri )

Department of Corrections,

)

in his official capacity,

)

Serve:

)

Larry Crawford

)

Director, Missouri Department of Corrections )

2729 Plaza Drive

)

Jefferson City, MO 65109

)

)

and

)

)

CYNDI PRUDEN, Acting Superintendent,

)

Women's Eastern Reception, Diagnostic and

)

Correctional Center, in her official capacity,

)

Serve:

)

Cyndi Pruden

)

1101 E. Hwy 54

)

Vandalia, MO 63382

)

)

Defendants.

CIVIL ACTION NO. 05-4333-CV-C-DW
SUPPLEMENTAL AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

The Plaintiff, pursuant to Federal Rule of Civil Procedure 15(a), files this Supplemental Amended
Complaint as a matter of course as no responsive pleading has been filed by the State to the
original Complaint.
- 1 -
1 Plaintiffs are permitted to proceed under a pseudonym in termination of pregnancy cases. See Singleton v. Wulff, 428 U.S. 106, 177 (1976) (plurality opinion) (approving pseudonym as justified “by a desire to protect the privacy of her decision from the publicity of a court suit”). Plaintiff is withholding her name for reasons of privacy and in order to comply with the E-Government Act of 2002. Plaintiff will provide her name and prisoner identification number under

INTRODUCTION
1a. Plaintiff Jane Roe brings this action on behalf of herself and all others similarly situated. This Supplemental Amended Complaint For Declaratory and Injunctive Relief incorporates all verified allegations contained in Plaintiff’s Verified Complaint for Declaratory and Injunctive Relief, filed October 12, 2005.
1b. This is a civil rights action challenging Defendants’denial of access to medical care to Plaintiff Jane Roe, a prisoner at the Women’s Eastern Reception, Diagnostic and Correctional Center (“WERDCC”), and others similarly situated within the penal system, pursuant to a newly enacted Department regulation. Plaintiff is at the beginning of the second trimester of her pregnancy. She seeks access to a local medical facility where she can obtain medical services to terminate her pregnancy. Defendants have refused to release and transport Plaintiff for this procedure even though Defendants provide access to outside health care providers for other prisoners in need of outpatient medical care. As a result, Plaintiff cannot obtain the medical services she needs to terminate her pregnancy.
2. Defendants’policy violates the constitutional rights of Plaintiff, and others similarly situated, in two ways. First, pursuant to the policy, the Defendants deprive pregnant inmates of their Fourteenth Amendment right to reproductive choice. No legitimate penological interest justifies this deprivation. Moreover, by forcing Plaintiff to carry her unwanted pregnancy to term, Defendants evince deliberate indifference to her serious medical needs in violation of the
seal upon request of counsel or Order of Court. See, Paragraph 7, below.
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Eighth and Fourteenth Amendments’proscription of cruel and unusual punishment. For these reasons, the DOC policy is invalid and Defendants should be enjoined from enforcing it.
JURISDICTION AND VENUE 3. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. 4. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202, and Rule 57 of the Federal Rules of Civil Procedure. 5. Venue is proper in the Western District of Missouri, Central Division, pursuant to 28 U.S.C. § 1391(b). Plaintiff is currently incarcerated at the Women's Eastern Reception, Diagnostic and Correctional Center, in Vandalia, Missouri, which is subject to the jurisdiction of the Missouri Department of Corrections. The State is being sued through the Department Director in his official capacity. The Director is located in Jefferson City, Missouri, in this District, Central Division.
PARTIES 6. Plaintiff Jane Roe is a female over the age of eighteen years. She is an inmate in the custody of the Women’s Eastern Reception, Diagnostic and Correctional Center (WERDCC). She is pregnant and wishes to terminate her pregnancy. She has been sentenced to four years incarceration and has served two months of her sentence.
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7. Plaintiff brings this action under a pseudonym in order to preserve her privacy and confidentiality, as well as to protect herself from harassment, public embarrassment, and humiliation.
8. Defendant Larry Crawford is the Director of the Missouri Department of Corrections (DOC). He is responsible for the care and custody of all inmates housed by the DOC. He is also responsible for promulgating and implementing the policies of the DOC. All actions of DOC employees alleged in this action were undertaken or carried out pursuant to the policies and direction of Defendant Crawford and/or were ratified by Defendant Crawford. Defendant Crawford is sued in his official capacity.
9. In all actions and at all times relevant to this action, Defendant Crawford and his agents were acting under color of state law.
10. Defendant Cyndi Pruden is an employee of the DOC and the Acting Superintendent of WERDCC. She is responsible for the care and custody of the inmates housed at WERDCC. She is also responsible for carrying out the policies of WERDCC. All actions of WERDCC employees alleged here were undertaken or carried out pursuant to the policies and at the direction of Defendant Pruden and/or were ratified by Defendant Pruden. Defendant Pruden is sued in her official capacity.
11. In all actions and at all times relevant to this action, Defendant Pruden and her agents were acting under color of state law.
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CLASS ACTION ALLEGATIONS 12. Plaintiff Roe brings this action on behalf of herself and all others similarly situated, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiff Roe represents a class of persons defined as follows:
All pregnant women who are seeking or may in the future seek nontherapeutic abortions, who need transport to the abortion appointment, and who are in the custody of Defendants at the time this Complaint is filed or who will be placed in the custody of Defendants in the future and may while in the custody of Defendants seek a non-therapeutic abortion. 13. The proposed Plaintiff Class, which includes current and future pregnant inmates in the custody of DOC whose identities are now unknown, is so numerous and fluid that joinder of all members is impracticable. 14. There are questions of law and fact common to the members of the Plaintiff Class, including whether the DOC policy denies women access to abortion in violation of the Fourteenth, Fifth and Eighth Amendments. 15. The claims of the named Plaintiff are typical of the claims of the members of the Class, because each claim asserted on behalf of the Class is asserted by Plaintiff Roe on behalf of herself. 16. The named Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff Roe has no interest that is now or may be potentially antagonistic to the interest of the Class. She seeks no relief other than the relief sought by the Class as a whole. Plaintiff Roe is represented by attorneys employed by and working in cooperation with the American Civil Liberties Union of Eastern Missouri and the Reproductive Freedom Project of the ACLU.
- 5 -

17. Plaintiff Roe’s attorneys have experience in litigating federal court class action cases involving federal civil rights claims, including cases addressing the right to reproductive freedom and prisoner’s rights.
18. Defendants have acted or refused to act on grounds generally applicable to the Plaintiff Class, thereby making appropriate injunctive and declaratory relief with respect to the Class as a whole.
FACTUAL ALLEGATIONS 19. As of the filing of the Complaint, Plaintiff Roe was approximately sixteen to seventeen weeks pregnant measured from the first day of her last menstrual period (lmp). 20. After considerable thought, Plaintiff Roe wishes to terminate her pregnancy. 21. Plaintiff, a non-violent offender, was arrested in July in California on a Missouri warrant stemming from a parole violation. She learned she was pregnant shortly after being taken into custody. She first requested access to medical services to terminate her pregnancy at this time at the correctional facility in California. However, before she could obtain the procedure, she was transported to Missouri. She arrived at WERDCC on or about August 22. Immediately upon arrival at WERDCC, Plaintiff again requested access to medical services to terminate her pregnancy, making this request to the WERDCC intake nurse. Plaintiff was told that the nurse would schedule an appointment with the OB/GYN, which Plaintiff understood to be for medical services to terminate her pregnancy. When an appointment with the OB/GYN was not forthcoming, she repeated this request to several other nurses and medical personnel at WERDCC. She repeated this request to her caseworker, Ms. Raspberry (proper spelling
- 6 -

unknown), on or about September 1, 2005, and was informed by Ms. Raspberry that she would submit the relevant paperwork to DOC. Plaintiff specifically informed Ms. Raspberry that she was prepared to pay for the procedure herself. Although Plaintiff is indigent, she is prepared to borrow money from family and friends. She learned from Ms. Raspberry on about September 7, 2005 that her request for access to medical services to terminate her pregnancy was denied. She was told by Ms. Raspberry that all requests for non-therapeutic terminations are denied “because Governor Blunt wants them denied.” Only after being told that her request was denied did Plaintiff finally see the OB/GYN, on or about September 17, 2005. Plaintiff faces a sentence of four years, thus, Defendants’policy will force her to carry the pregnancy to term. If so, Plaintiff would likely be separated from the child.
22. Pursuant to its policy, WERDCC has refused to temporarily release and transport Plaintiff Roe for medical services to terminate her pregnancy. WERDCC has also refused to pay for Plaintiff Roe’s procedure and the related costs, including transportation and security. WERDCC does not deny medical services access or transportation and security to other persons similarly situated in need of medical treatment.
23. Before filing this action, on October 5, 2005, Plaintiff’s Counsel spoke by phone with WERDCC Assistant Superintendent Bob Capowski who referred to Plaintiff’s files and then informed Counsel that she will not be transported to her appointment because of a “directive from the central office” and a DOC policy prohibiting WERDCC inmates from accessing medical services to terminate their pregnancies or WERDCC from transporting prisoners for such procedures. Counsel was advised that this directive originated with the Office of the Defendant
- 7 -

Director. Counsel has attempted to contact DOC Counsel Daniel Gibson by phone since first speaking with Plaintiff on Wednesday, October 05, 2005. Counsel has left numerous messages on DOC Counsel’s voicemail system, and with Counsel’s staff. None of these calls have been returned except a message to obtain the service address and facsimile number of Mr. Gibson. See Declaration of James G. Felakos.
24. On October 7, 2005, Counsel delivered via facsimile a demand letter attempting to resolve Plaintiff’s situation without litigation. See Exhibit 1 to Declaration of James G. Felakos. Counsel has received no response.
25. On information and belief, the nearest clinic that performs medical services to terminate pregnancy at Plaintiff’s stage of pregnancy is Reproductive Health Services of Planned Parenthood of St. Louis located at 4251 Forest Park Avenue, St. Louis, MO 63108.
26. On information and belief, at Reproductive Health Services, at this stage of Plaintiff’s pregnancy, procedures are only performed on Fridays. Reproductive Health Services is available to perform medical services to terminate Plaintiff’s pregnancy on October 14. If the procedure cannot be performed as a one-day procedure, it can be performed on October 14 and continuing on October 15.
27. Prior to the current administration, and as recently as 2004, inmates were routinely escorted to Planned Parenthood of St. Louis for the purposes of this medical procedure. See Declaration of Sharon Tobin. Inmates were escorted by two guards who were able to remain with the inmate the entire time, except during the actual procedure (during which they were stationed immediately outside the room). Id. When circumstances required, a guard could remain
- 8 -

during the procedure. Planned Parenthood arranged for the procedures to occur in a private room apart from their regular clientele. Id.
28. If Defendants continue to refuse to provide Plaintiff with access to medical services to terminate her pregnancy, by the time her pregnancy advances another one to two weeks, she will no longer be able to terminate via a one-day procedure. See Declaration of Sharon Tobin.
29. If Defendants continue to refuse to provide Plaintiff with access to medical services to terminate her pregnancy, by the time her pregnancy advances to 22 weeks, she will no longer be able to obtain such a procedure anywhere in the State of Missouri. See Declaration of Sharon Tobin.
30. Plaintiff is indigent. She cannot pay for the medical services required to terminate her pregnancy herself but is willing to borrow funds from family and friends if necessary to obtain the procedure. Plaintiff is unable to pay for the transportation and security costs necessary to obtain medical services to terminate her pregnancy, which costs would be prohibitive if she were required to pay them, effectively denying her access to the medical procedure.
31. Defendants’denial of assistance in obtaining access to medical services to terminate her pregnancy has already delayed Plaintiff’s procedure. Plaintiff’s initial request for the procedure in Missouri was made on August 22. Plaintiff was made to wait for an OB/GYN appointment for three weeks. Subsequent to learning of the denial, Plaintiff had to seek counsel to obtain assistance obtaining the procedure. Plaintiff’s complaint reached this office on September 29. Counsel arranged a conference call with Plaintiff as soon as one could be held.
- 9 -

This call occurred on Wednesday, October 05, 2005. Since her incarceration in Missouri, Plaintiff’s access to medical services to terminate her pregnancy has been delayed for six weeks.
32. Although medical procedures to terminate pregnancy are extremely safe, the risk of medical complications from termination increases significantly with delay. Thus, the delay Plaintiff has already endured will subject her to increased risks in the procedure, which will only increase with any additional delay.
33. If Defendants are permitted to enforce the policy so as to deny Plaintiff’s constitutional right to terminate her pregnancy, Plaintiff will be forced to carry her unwanted pregnancy to term.
34. Unwanted pregnancy and childbearing cause severe mental distress. For a woman inmate who is already separated, often by great distances, from her customary support system of family and friends, the effects are aggravated. Plaintiff, for example, has already suffered anxiety and depression because of the prison’s obstruction of her efforts to terminate her pregnancy. She feels that continuation of the pregnancy would be unbearable.
35. Forced childbearing is particularly cruel for inmates who must deliver a child only to part with it for an extended period of time if not permanently.
36. On information and belief, WERDCC provides medical care for serious medical needs other than termination of pregnancy for all inmates, including the costs of prenatal care and childbirth for those pregnant inmates who choose to carry to term, and transportation to necessary medical facilities.
- 10 -

37. The harms Defendants impose on Plaintiff, and other similarly situated inmates, by virtue of their policy of prohibiting access to medical services to terminate her pregnancy are not justified by any legitimate penological objective or any other governmental interest.
38. In denying access to medical services to terminate pregnancy to pregnant inmates, Defendants have demonstrated, and continue to demonstrate, deliberate indifference to the serious medical needs of Plaintiff, and others similarly situated.
FIRST CLAIM FOR RELIEF (Fifth and Fourteenth Amendment; 42 U.S.C. §1983: Due Process) 39. The allegations of paragraphs 1 through 38 are incorporated as though fully set forth here. 40. By forcing Plaintiff, and other similarly situated inmates, to carry an unwanted pregnancy to term, and by delaying termination of the pregnancy to the detriment of their health, Defendants violate, and threaten to continue violating, the right of reproductive choice guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
SECOND CLAIM FOR RELIEF (Eighth and Fourteenth Amendment; 42 U.S.C. §1983: Denial of Medical Care)
41. The allegations of paragraphs 1 through 38 are incorporated as though fully set forth here.
42. Defendants know that the effect of the prison policy is to prevent Plaintiff, and others similarly situated, from obtaining medical services necessary to terminate her pregnancy.
43. By forcing Plaintiff, and others similarly situated, to carry an unwanted pregnancy to term, and by delaying the procedure to the detriment of their health, Defendants impose cruel
- 11 -

and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment.
EMERGENCY AND PERMANENT INJUNCTIVE RELIEF 44. Plaintiff Roe requests emergency injunctive relief to prevent imminent, irreparable harm. At Plaintiff Roe’s stage of pregnancy, the medical risks of a termination of pregnancy increase every day that the procedure is delayed. If Defendants continue to deny Plaintiff Roe access to medical services to terminate her pregnancy, Plaintiff Roe’s pregnancy will advance within one to two weeks to the point where she will no longer be able to terminate her pregnancy as part of a one-day procedure, thereby increasing the health risks to and burden on her associated with the procedure. In addition, if Defendants continue to deny Plaintiff Roe access to medical services to terminate her pregnancy, Plaintiff Roe’s pregnancy will advance within weeks to the point where she will no longer be able to obtain a termination of pregnancy, thereby irrevocably depriving her of her constitutional right to choose to terminate her pregnancy. Without immediate intervention from this Court, she will be forced to carry her pregnancy to term. In addition, Plaintiff on behalf of the Class, seeks permanent injunctive relief restraining Defendants from enforcing the ban on inmate’s access to non-therapeutic abortion services and requiring Defendants to revise the challenged policy to ensure that pregnant women who choose to terminate their pregnancy have access to appropriate medical services.
- 12 -

DECLARATORY RELIEF 45. An actual and immediate controversy exists between Plaintiff and Defendants. Plaintiff Roe is entitled to a declaration of rights with respect to this controversy. Without such a declaration, Plaintiff Roe will be uncertain of her rights and responsibilities under the law.
ATTORNEYS’ FEES 46. If Plaintiff prevails in this action, she is entitled to an award of reasonable attorneys’fees and costs pursuant to 42 U.S.C. § 1988.
REQUEST FOR RELIEF Plaintiff respectfully requests that the Court grant:
1. An order assuming jurisdiction over this matter and granting class certification pursuant to a Motion simultaneously filed with this Complaint.
2. A declaratory judgment holding unconstitutional Defendants’policy of denying prisoners access to medical services to terminate pregnancy;
3. An temporary restraining order and/or preliminary injunction requiring the Defendants to immediately transport Plaintiff Jane Roe to a local health care provider, preferably Planned Parenthood of St. Louis, at a scheduled appointed time for the purpose of providing medical services to terminate her pregnancy, including, but not limited to any necessary counseling, education, surgery, and follow-up services;
4. Injunctive relief preliminarily and permanently restraining Defendants from enforcing the ban on inmate’s access to non-therapeutic abortion services and requiring Defendants to revise the challenged policy to ensure that pregnant women who choose to terminate their pregnancy have access to appropriate medical services.
5. An award to Plaintiff of attorneys’fees, costs and any other relief that this court may deem just and proper.
6. Such other relief as this Court deems just and proper.
- 13 -

Respectfully submitted,
/s/Thomas M. Blumenthal Thomas M. Blumenthal, MBEN 25601, E.D. Mo 2652 165 North Meramec Ave, Sixth Fl St. Louis, MO 63105 Telephone No. 314-727-2266 Facsimile No. 314-727-2101 E Mail: tblumenthal@pcblawfirm.com COOPERATING ATTORNEYS FOR ACLU/EM COUNSEL FOR RESPONDENT JANE ROE
James G. Felakos, MBEN 56356, Federal Bar # JF6965 Staff Attorney, American Civil Liberties Union of Eastern Missouri 4557 Laclede Ave St. Louis, MO 63108 Telephone No. 314-361-3635 Facsimile No. 314-361-3135 E Mail: jim@aclu-em.org COUNSEL FOR RESPONDENT JANE ROE
Diana Kasdan* Jennifer Nevins* Talcott Camp* Chakshu Patel* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Telephone No. 212-549-2633 Facsimile No. 212-549-2652 E mail: dkasdan@aclu.org
jnevins@aclu.org tcamp@aclu.org cpatel@aclu.org COUNSEL FOR RESPONDENT JANE ROE * Petition for Admission Pro Hac Vice Pending
CERTIFICATE OF SERVICE - 14 -

The undersigned hereby certifies that on October 19, 2005, he electronically filed a copy of the foregoing with the Clerk of the Court using the CM/ECF system for service on the following: Michael Pritchett Missouri Assistant Attorney General Missouri Office of the Attorney General 207 West High Street Jefferson City, Missouri 65102 FAX: 573-751-9456 EMAIL: mike.pritchett@ago.mo.gov
/s/Thomas M. Blumenthal
- 15 -

 
 IN THE UNITED STATES DISTRICT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

JANE ROE, Plaintiff,
v. LARRY CRAWFORD, et al,.
Defendants.

)

)

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)

)

Case No. 05-04333-CV-C-DW

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)

)

)

ORDER Before the Court is Plaintiff Jane Roe’s1 Motion for Class Certification and Suggestions

in Support (Docs. 18 and 19). Plaintiff moves the Court to certify this action as a class action

pursuant to the provisions of FED. R. CIV. P. 23(a) and 23 (b)(2) and to designate her as the

representative of a class of all persons similarly situated. For the following reasons, Plaintiff’s

Motion is GRANTED.

I. Factual Background

This civil rights action challenges as unconstitutional Defendants’ denial of access to

medical care to Plaintiff Jane Roe, a prisoner at the Women’s Eastern Reception, Diagnostic and

Correctional Center (“WERDCC”) and its policy denying all pregnant inmates access to non-

therapeutic abortion services.

Plaintiff, an inmate at WERDCC, seeks access to a local medical facility to obatin

medical services to terminate her pregnancy. Pursuant to a Department of Corrections (“DOC”)

Policy prohibiting temporary release and transport of inmates for non-therapeutic abortions,

1The name is a pseudonym. 1

refused to release and transport Plaintiff for the procedure. Plaintiff, in turn, challenged the DOC policy as unconstitutional and sought a Court Order to obtain medical services to terminate her pregnancy. Plaintiff now moves to certify and act as the named representative of the following class:
All pregnant women who are seeking or may in the future seek non-therapeutic abortions and who are in the custody of Defendants at the time Plaintiff Roe filed her Verified Complaint in this case or who will be placed in the custody of Defendants in the future and may while in the custody of Defendants seek a non-therapeutic abortion. II. Legal Standard In considering a motion for class certification, the Court’s inquiry is limited to determining whether the proposed class satisfies the requirements of Rule 23. Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 178 (1974). Courts read Rule 23(a) liberally in the context of civil rights suits. Ahrens v. Thomas, 570 F.2d 286, 288 (8th Cir. 1978) (citations omitted). Rule 23 dictates that in ruling on class certification, a court must first determine if: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a). One of the requirements of Rule 23(b) must also be present before a class may be certified. If the 23(a) prerequisites are met and “the party opposing the class has acted or refused to act on grounds generally applicable to the class,” thereby making appropriate “relief with respect to the class as a whole,” the class action may be maintained. FED. R. CIV. P. 23(b)(2). III. Federal Rule of Civil Procedure 23(a)
2

A. Numerosity As noted above, the Court must first inquire as to whether the proposed class is “so numerous that the joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). The proposed class is comprised of pregnant inmates seeking non-therapeutic abortions who were incarcerated at the time Plaintiff Roe filed her Complaint as well as all pregnant inmates seeking non-therapeutic abortions who will be incarcerated in DOC institutions in the future. Inmates constantly enter, leave, and reenter the Missouri prison system. Given the fluid nature of the proposed class, the Court finds that joinder of all members of the proposed class is impracticable. Atkins v. Toan, 595 F. Supp. 104, 105 (W.D. Mo. 1984) (joinder of unknown persons in a fluid class is impracticable). See also Tinsley v. Kemp, 750 F. Supp. 1001, 1005 (W.D. Mo. 1990). Defendant argues that the Court cannot reasonably approximate the number of the class. Rule 23, however, does not mandate a particular threshold number of plaintiffs. Paxton v. United Nat’l Bank, 688 F.2d 552, 559 (8th Cir. 1982). Nor is a plaintiff required to “specify an exact number or prove the identity of each class member.” Morgan v. United Parcel Serv. of Am., Inc., 169 F.R.D. 349, 355 (E.D. Mo. 1996). Plaintiff need only show a reasonable estimate of the number of class members. Id. In that regard, an approximation of the current and future members of the class weighs in favor of certification. Plaintiff points to statistics showing that five to six percent of female prisoners incarcerated nationwide are pregnant when they enter prison. Lawrence A. Greenfeld & Tracy L. Snell, U.S. Department of Justice, Women Offenders, Oct. 3, 2000, at 8. In 2003, 2,365 entered the Missouri prison system. Ingram Decl. ¶ 5. Based on published data cited by Plaintiff, approximately 17 - 24% of pregnant women choose to terminate their pregnancies. P’s Reply, at 9. Indeed, in the short time since this Court
3

ordered preliminary injunctive relief, three additional DOC inmates have requested access to abortion services. Gianino Decl. ¶¶ 5, 8. Accordingly, the Court finds that the numerosity factor is clearly met.
B. Commonality The proposed class meets the requirement of the existence of a common question of law or fact. Rule 23(a)(2) is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation. DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (citations omitted). Plaintiff has raised a question of law common to all members of the class, specifically, whether Defendants’ policy of prohibiting temporary release and transport of inmates for non-therapeutic abortions violates the proposed class’s Fourteenth and Eighth Amendment rights. Defendant does not challenge that this prong has been met. C. Typicality Plaintiff Roe’s claims are typical of the class she seeks to represent. Typicality requires that other members of the class have the same or similar grievances as the Plaintiff. Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977). Defendants have raised no reasons to doubt the typicality of the claims, nor is the Court aware of any. Plaintiff Roe’s claim is identical to the claims of other potential class members; she complains of the same policy as that which applies to all potential class members. Plaintiff Roe will apply the same factual proof and legal theories as would be used by the potential class members. Likewise, she seeks identical relief as that of other potential class members. D. Adequacy of Class Representation
4

Lastly, Plaintiff Roe will fairly and adequately represent the interests of the class. Rule 23(a)(4) requires that the class representative be “part of the class and ‘possess the same interest and suffer the same injury’ as other class members.” East Texas Motor Freight Sys., Inc., v. Rodriguez, 97 S.Ct. 1891, 1896 (1977) (citations omitted).
As discussed above, the named Plaintiff has interests which are common, if not identical, to those of the potential class members. The Court finds no merit in Defendant’s argument that there is a chance that the case will be prosecuted for the individual interest of the class representative rather than for the general interest of the class. IV. 23(b)
Having found that the proposed class meets the requirements of 23(a), the Court must next examine whether Rule 23(b)(2) is satisfied. Defendants argue that Plaintiff has failed to meet the requirements of Rule 23(b)(2) as “a class is not needed where declaratory and injunctive relief only are sought and such relief, if entered will benefit all member of a possible class.” D’s Resp. to P’s Motion at 1. In other words, Defendants contend that certification is simply not necessary. This and other courts have specifically rejected this argument:
There is no language in Rule 23(b)(2) . . . that requires the Court to consider the necessity for a class action. Rule 23(b)(2) was specifically designed to allow for the class action mechanism in civil rights cases. Accordingly, the requirements of the rule are given a liberal construction in civil rights suits. If the requirements of Rule 23(a) are met, a district court’s discretion to deny certification on the basis of Rule 23(b)(2) is limited. Reproductive Health Services v. Webster, 662 F.Supp. 407, 412 (W.D. Mo. 1987) (citations omitted), aff’d in relevant part, 851 F.2d 1071 (8th Cir. 1988) (affirming standing of class plaintiffs), overruled on other grounds, 492 U.S. 490 (1989). See also Tinsley, 750 F. Supp. at 1006 (certifying the class and rejecting the argument that class certification is not necessary,
5

inasmuch as any relief automatically would, as a practical matter, apply to all potential class members); Hoehle v. Likins, 538 F.2d 229 (8th Cir. 1976) (reversal of a court’s denial of class certification which had relied on a “necessity” theory).
In addition, challenges to prison policies and abortion restrictions are two typical contexts for class certification under Rule 23(b)(2). A class action “is an especially appropriate vehicle for civil rights actions seeking . . . declaratory relief for prison . . . reform.” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1990) (citing Moore’s Federal Practice). Likewise, class certification is appropriate in cases challenging restrictions on access to abortion. Florida Women’s Med. Clinic, Inc. v. Smith, 478 F.Supp. 233, 234 (S.D. Fla. 1979) (“This action seeking a declaration as to the constitutionality . . . . of the [abortion related] statutes and rules is so clearly appropriate for Rule 23(b)(2) class treatment that extended discussion of this issue is unnecessary”). V. Conclusion
The requirements under Rule 23(a) have clearly been met. The appropriateness of injunctive and declaratory relief, if any, demonstrates that a class should be certified under Rule 23(b)(2). Plaintiff Roe is designated as the representative of all pregnant women who are seeking or may in the future seek non-therapeutic abortions and who are in the custody of Defendants at the time Plaintiff Roe filed her Verified Complaint in this case or who will be placed in the custody of Defendants in the future and may while in the custody of Defendants seek a nontherapeutic abortion. The class claims are limited to those raised in Plaintiff’s Supplemental Amended Complaint for Declaratory and Injunctive Relief (Doc. 17).
Pursuant to Rules 23(b)(2) and 23(c)(2)(A), individual notice to the present and future
6

class members is not necessary in the circumstances of this case. Having considered the factors outlined in Rules 23(g)(1) and 23(g)(2)(B), the Court finds that Plaintiff’s counsel has experience in litigating class action claims and has the ability and resources to devote to this action, pursue the case vigorously, and represent the Class adequately. Accordingly, Plaintiff’s counsel of record are appointed to serve as class counsel. IT IS SO ORDERED

DATE: November 28, 2005

/s/ DEAN WHIPPLE Dean Whipple
United States District Judge

7

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

JANE ROE, Plaintiff,
v.
LARRY CRAWFORD, Director of the Missouri Corrections, in his official capacity, and CYNDI PRUDEN, Acting Superintendent, Women's Eastern Reception, Diagnostic and Correctional Center, in her official capacity,
Defendants.

) ) CIVIL ACTION NO. 05-4333-CV-C-DW ) ) ORDER AND JUDGMENT OF ) PRELIMINARY INJUNCTION ) ) ) ) ) ) ) ) ) )

ORDER AND JUDGMENT OF PRELIMINARYINJUNCTION

On October 13, 2005, the Court held a telephone conference on the Verified Complaint,

Motion and Affidavits filed by Plaintiff. Plaintiff appeared by counsel, Thomas Blumenthal. Defendants

appeared by counsel, Michael Pritchett, Missouri Assistant Attorney General. After considering the

arguments made by counsel, the Court grants Plaintiff’s Motion for a Preliminary Injunction.

The Court finds there are sufficient facts to suggest the following:

Plaintiff is a pregnant female over the age of eighteen (18) years who desires to terminate her

pregnancy. It appears that when measured from the first day of her last menstrual period (lmp) Plaintiff

is approximately 16 – 17 weeks pregnant. She is currently incarcerated at WERDCC. Medical

services to terminate a pregnancy are not offered at WERDCC, the detention facility. The nearest

clinic that performs medical services to terminate pregnancy at Plaintiff’s stage of pregnancy is

Reproductive Health Services of Planned Parenthood of St. Louis (RHS) located at 4251 Forest Park

Avenue, St. Louis, MO 63108. A procedure such as the one being sought is only performed on Fridays, and requires one, possibly two days to perform safely, depending on the actual condition of the patient after examination. The longer the procedure is delayed, the greater the risk attendant to the procedure to the Plaintiff, and the more certainly the procedure will require two days.
While Defendants have previously provided transportation and security to RHS for persons confined seeking such a procedure, which was the status quo until at least some time in 2004, Defendants have in this instance refused to allow Plaintiff to leave the premises to have this outpatient surgery performed. Plaintiff has made some reasonable effort to obtain the procedure but has not been able to do so. She therefore is without an adequate remedy at law and will suffer irreparable harm if equitable relief is not granted by this Court. The public interest, or the expressed interest of the State of Missouri as defined in their legislative public policy, is in promoting a policy where woman carry pregnancy to term, and is in conflict with the interests of the Plaintiff.
The Court further finds as matter of law, that it has jurisdiction over this matter. The law is now well established that federal courts have declared that a woman has a constitutional right to choose to terminate a pregnancy rather than carry the pregnancy to term. That right is of a limited duration. While a State may express its public policy, it may not create undue burdens upon a woman’s exercise of her right to choose, and may not prohibit the exercise of that right or place substantial obstacles in the way of the exercise of that right. Planned Parenthood v. Casey, 505 U.S. 833 (1992); Stenberg v. Carhart, 530 U.S. 914 (2000). It is also clearly established that these rights of the woman survive incarceration. Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 334 n.11 (3d Cir. 1987), cert. denied, 486. U.S. 1006 (1988).
2

The Court therefore finds that any balancing test at this stage of pregnancy favors the rights of the Plaintiff and that injunctive relief is appropriate and should issue.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction is GRANTED; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants shall transport Plaintiff Jane Roe to Reproductive Health Services of Planned Parenthood of St. Louis (RHS) located at 4251 Forest Park Avenue, St. Louis, MO 63108 or any other local health care provider willing to provide the service on an expedited basis, on the earliest date an appointment is available, preferably Friday, October 14, 2005, for the purpose of providing medical services to terminate her pregnancy, including, but not limited to any necessary counseling, education, surgery, and follow-up services, for a period of no more than 48 hours. Plaintiff shall post a cash bond of $1.00 security in order to secure this Order.
The parties shall provide the Court with a proposed scheduling order in the ordinary course of scheduling, but within no more than 45 days, to establish a schedule to determine whether Defendants shall be permanently prohibited from denying prisoners access to medical services to terminate pregnancy, but Defendants are temporarily enjoined from denying such access until further order of this Court. SO ORDERED. October 13, 2005 at 3:45 p.m.
/s/ DEAN WHIPPLE H. DEAN WHIPPLE, District Judge United States District Court for the Western District of Missouri
3

 
 IN THE UNITED STATES DISTRICT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

JANE ROE, Plaintiff,
v. LARRY CRAWFORD, et al.,
Defendants.

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Case No. 05-0433-CV-C-DW

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MODIFIED JUDGMENT OF PRELIMINARY INJUNCTION

This case returns to this Court upon the denial of an application for stay presented to

Justice Thomas on October 17, 2005. On October 13, 2005, the Court granted Plaintiff’s Motion

for a Preliminary Injunction and ordered Defendants to transport Plaintiff on Saturday, October

14, 2005 for the purpose of providing medical services to terminate her pregnancy.

The Defendants failed to comply with the Court’s Order and applied to the Court for a

Motion to Stay or Suspend the Preliminary Injunction Pending Appeal and Request for

Expedited Ruling. That Motion was Denied and the Court entered a Modified Judgment of

Preliminary Injunction ordering Defendants to transport Plaintiff for the purpose of providing

medical services to terminate her pregnancy on Saturday, October 15, 2005 at 9:00 A.M..

On October 14, 2005, the Supreme Court of the United States ordered that the Modified

Judgment of October 14, 2005 issued by this Court be stayed pending further Order by Justice

Thomas or the Supreme Court of the United States.

On October 17, 2005, the Supreme Court of the United States vacated the temporary stay

entered on October 14, 2005 and denied the application for stay presented to Justice Thomas.

1

Accordingly, Defendants are directed to transport Plaintiff on or before October 21, 2005, for the purpose of providing medical services to terminate her pregnancy, including, but not limited to any necessary counseling, education, surgery, and follow-up services, for a period of no more than 48 hours. The parties shall confer and agree to the time and place said services will take place and shall so advise the Court of the details prior to 5:00 p.m. on October 19, 2005.
The parties shall provide the Court with a proposed scheduling order in the ordinary course of scheduling, but within no more than 45 days, to establish a schedule to determine whether Defendants shall be permanently prohibited from denying prisoners access to medical services to terminate pregnancy.
IT IS SO ORDERED /s/ Dean Whipple Dean Whipple United States District Judge
DATE: October 17, 2005
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

JANE ROE,
v. LARRY CRAWFORD, et. al.,

Plaintiff, Defendants.

)

)

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No. 05-4333-CV-C-DW

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ORDER

On October 17, 2006, the Court entered an Order awarding Plaintiffs’ counsel attorneys’

fees, costs and expenses. Defendants filed a Motion asking this Court to alter or amend its

previous judgment “to provide that payment for the fees, costs, and expenses that were ordered is

stayed pending resolution of the Defendants’ appeal in this case.” (Doc. 101). Plaintiffs are

unopposed to Defendants’ Motion, provided that interest runs on the award from the date of the

Court’s Order at the federal rate of interest. Defendants failed to file a reply and did not object

to Plaintiffs’ request for interest.

The Court GRANTS Defendants’ Motion to Amend Judgment. (Doc. 101). Payment of

the fees, costs, and expenses ordered on October 17, 2006 are stayed pending resolution of

Defendants’ appeal. Interest shall run on the award from the date of the Court’s Order at the

federal rate of interest.

IT IS SO ORDERED.

Date: November 29, 2006

/s/ DEAN WHIPPLE Dean Whipple
United States District Court

 
 396 F.Supp.2d 1041 (2005)
Jane ROE, Plaintiff, v.
Larry CRAWFORD, et al., Defendants.
No. 05-04333-CV-C-DW.
United States District Court, W.D. Missouri, Western Division.
October 14, 2005.
1042 *1042 Thomas Michael Blumenthal, Paule Camazine & Blumenthal, PC, James G. Felakos, St. Louis, MO, for Plaintiff.
Michael Pritchett, Missouri Attorney General, Jefferson City, MO, for Defendants.
ORDER AND MODIFIED JUDGMENT OF PRELIMINARY INJUNCTION
WHIPPLE, District Judge.
On October 13, 2005, the Court held a telephone conference on the Verified Complaint. Motion and Affidavits filed by Plaintiff. Plaintiff appeared by counsel, Thomas Blumenthal. Defendants appeared by counsel, Michael Pritchett, Missouri Assistant Attorney General. After considering the arguments made by counsel, the Court granted Plaintiff's Motion for a Preliminary Injunction. The Defendants failed to comply with the Court's Order. Pending now before the Court is Defendants' Motion to Stay or Suspend the Preliminary Injunction Pending Appeal and Request for Expedited Ruling (Doc. 8).
I. Motion to Stay
Defendants move to stay execution of the Court's Order dated October 13, 2005, granting a preliminary injunction in favor of Plaintiff Roe pending appeal. FED. R. CIV. P. 62(c).
The factors to be considered in determining whether to issue a stay pending appeal are: (1) whether the movant is likely to succeed on the merits; (2) whether movant will suffer irreparable injury unless the stay is granted; (3) whether substantial harm will come to other interested parties; and (4) whether the stay will do no harm to the public interests. James River Flood Control Ass'n v. Watt, 680 F.2d 543, 544 (8th Cir.1982).
Defendants' Motion to Stay is merely a recitation of the points in opposition made at the October 13, 2005 Preliminary Injunction Hearing. For the reasons stated in the Court's Order of October 13, 2005, Defendants' Motion is DENIED. Union Oil Co. of California v. Leavell, 220 F.3d 562, 565-66 (7th Cir.Ill.2000) (internal citations omitted) ("A judge may and should enforce an un-stayed injunction while an appeal proceeds...").
Defendants are hereby ORDERED to carry out the Court's Modified Judgment of Preliminary Injunction set forth below.
II. Modified Judgment of Preliminary Injunction
A. Factual Background
Plaintiff Roe is a pregnant female over the age of eighteen (18) years who desires to terminate her pregnancy. It appears that when measured from the first day of her last menstrual period Plaintiff is approximately 16 0907 17 weeks pregnant. She is currently incarcerated at Women's Diagnostic and Correctional Center (WERDCC). Medical services to terminate a pregnancy are not offered at the detention facility. The nearest clinic that performs medical services to terminate pregnancy at Plaintiff's stage of pregnancy is Reproductive Health Services of Planned Parenthood of St. Louis (RHS) located at 4251 Forest Park Avenue, St. Louis, MO 63108. A

1043 procedure such as *1043 the one being sought is only performed on Fridays, and requires one, possibly two days to perform safely, depending on the actual condition of the patient after examination. Defendants' conduct of delaying the procedure creates an increased health risk to Plaintiff as well as an increased cost of the two day procedure.
Defendants have previously provided transportation and security to RHS for detainees seeking such a procedure. Such transportation was the status quo until at least some time in 2004. Defendants in this instance have refused to allow Plaintiff to leave the premises to have this outpatient procedure performed. Plaintiff has made some reasonable effort to obtain the procedure but has been unable to do so.
Plaintiff brings two constitutional claims. First, she alleges that the prison's policy that female prisoners will not be sent out of their institutions for abortions that are not medically necessary deprives her of her Fourteenth Amendment right to reproductive choice. Second, Plaintiff alleges that by forcing her to carry her unwanted pregnancy to term, WERDCC evinces a deliberate indifference to her serious medical needs in violation of the Eighth and Fourteenth Amendments' prescription of cruel and unusual punishment. Plaintiff requests a preliminary injunction requiring the Defendants to transport her to a local health care provider for the purpose of providing medial services to terminate her pregnancy. For the following reasons, Plaintiff's Motion is GRANTED.
B. Preliminary Injunction
It is well settled law that a plaintiff's application for preliminary injunctive relief involves the court's examination of the following four factors: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). Considering the parties' respective positions in light of these guidelines, and for the following reasons, the Court finds that Plaintiff is entitled to the injunctive relief sought.
1. Threat of Irreparable Harm to the Movant
The United States Supreme Court has made clear that the denial of a woman's right to choose to terminate her pregnancy constitutes irreparable injury:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
Further, it is well-accepted that a substantial dely in the decision to abort increases the risks associated with the procedure. Monmouth County Correctional Institution Inmates v. Lanzaro, 643 F.Supp. 1217 (D.N.J.1986) aff'd 834 F.2d 326 (3d Cir.1987); See also Williams v. Zbaraz, 442 U.S. 1309, 1314, 99 S.Ct. 2095, 60 L.Ed.2d 1033 (Stevens, J., sitting as Circuit Justice) (increased risk of "maternal morbidity and mortality" supports claim of 1044 irreparable injury). Defendants' *1044 conduct denies Plaintiff the right to choose to terminate her pregnancy and has already delayed Plaintiff's procedure by six weeks. Complaint at ¶ 24. Further delay by Defendants may cause Plaintiff substantial injury, exposing her to increased medical, financial, and psychological risks. Thus, the Court finds that Plaintiff has established the requisite irreparable injury.
2. Balance of Harm
Defendants contend that to accommodate Plaintiff's request they will suffer harm outweighing that suffered by Roe. They argue the public risks harm any time a prisoner is removed from a facility and that as accommodation of Plaintiff's request requires official supervision, fewer officers at the facility puts both the officers and the inmates at risk. will substantially increase the risk to the public. As discussed above, further delay of Plaintiff's request will cause Plaintiff irreparable harm. The Court finds that equities balance in the Plaintiff's favor.

3. Probability of Success on the Merits
Plaintiff has established the probability of ultimately succeeding on the merits of this case. In determining the constitutionality of prison regulations, the Supreme Court has held "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 107, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Roe v. Wade, the Supreme Court held that "[the] right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 153, 93 S.Ct. 705. A woman's constitutional right to choose an abortion survives incarceration and must be justified by a legitimate penological objective. Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 334 n. 11 (3d Cir.1987).
Legitimate penological interests include the deterrence of crime, rehabilitation of prisoners and institutional safety. Lanzaro, 834 F.2d at 333. Defendants argue that the prison policy not to transport female prisoners out of the institution for abortions that are not medically necessary is reasonably related to the penological interests of security and cost. These interests, however, are not legitimate penological interests. Id. at 336 ("[A]ll other things being equal, inmates who wish to have an abortion pose no greater security risk than any other inmate who requires outside medical attention.").
Second, Plaintiff contends that Defendants' conduct violates her Eighth Amendment rights, as applied to the States, through the Fourteenth Amendment. The Court agrees that a prison official's deliberate indifference to a serious medical need violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
4. Public Interest
Finally, granting the preliminary injunction will do no harm to the public interest. Defendant argues that transporting Plaintiff for a nontherapeutic abortion will harm the "state's public policy, reflected by its statutes (see, e.g., Mo.Rev.Stat. §§ 188.100 to 188.220), to discourage abortions and encourage childbirth." (Defs.' Mot to Stay at 6.) The Eighth Circuit, in agreeing with the State's interpretation of the statute, has held that the statute "does not prevent state employees from arranging for abortion procedures for inmates or from transporting and escorting inmates to abortion facilities." Reproductive Health Serv. v. Webster, 851 F.2d 1071, 1084, rev'd on other grounds, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989).
1045 *1045 Conversely, the public interest demands that an injunction enjoin a policy which impinges on Roe's constitutional rights and privileges.
III. Conclusion
Pursuant to the Court's Modified Judgment of Preliminary Injunction, Defendants are directed to transport Plaintiff to Reproductive Health Services of Planned Parenthood of St. Louis (RHS) located at 4251 Forest Park Avenue, St. Louis, MO 63108 on Saturday, October 15, 2005 at 9:00 A.M. for the purpose of providing medical services to terminate her pregnancy, including, but not limited to any necessary counseling, education, surgery, and followup services, for a period of no more than 48 hours.
Absent a stay granted by the Eighth Circuit Court of Appeals prior to Saturday, October 15, 2005 at 9:00 A.M., an application for a stay of this Modified Order does not authorize Defendants to refuse to carry out its terms. This Court will not tolerate further defiance of its Orders.
IT IS SO ORDERED.
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 439 F.Supp.2d 942 (2006)
Jane ROE, Plaintiff, v.
Larry CRAWFORD, et al., Defendants.
No. 05-4333-CV-C-DW.
United States District Court, W.D. Missouri, Central Division.
July 18, 2006.
943 *943 Chakshu Patel, Diana Kasdan, Jennifer Nevins, Talcott Camp, American Civil Liberties Union Foundation, New York City, James G. Felakos, American Civil Liberties Union of Eastern Missouri, Thomas Michael Blumenthal, Paule Camazine & Blumenthal, PC, St. Louis, MO, for Plaintiff.
Michael Pritchett, Missouri Attorney General, Jefferson City, MO, for Defendants.
ORDER
WHIPPLE, District Judge.
944 Before the Court are Parties' cross-motions for summary judgment. (Does. 57 *944 and 60). For the following reasons, Plaintiffs' Motion for Summary Judgment (Doc. 57) is GRANTED. Defendants' Motion for Summary Judgment is DENIED.[1]
I. Factual Background
This case stems from the official policy of the Missouri Department of Corrections ("DOC") prohibiting transportation of pregnant inmates off-site to provide abortion care for nontherapeutic abortions.[2] Missouri DOC maintains two institutions for female offenders: Women's Eastern Reception, Diagnostic and Correctional Center ("WERDCC"), and the Chillicothe Correctional Center. All pregnant inmates are incarcerated at WERDCC.
DOC transports inmates from DOC institutions for, among other things, court appointments, medical appointments, work release, intra-institution transfers, and occasionally to take the State Board of Cosmetology examination. Any departure from institutional grounds is referred to as an "outcount." WERDCC handles approximately eight outcounts per day, seven days a week, averaging 197 outcounts per month in 2005.
DOC contracts with Correctional Medical Services ("CMS") for the provision of medical care to inmates in the Department's custody. CMS provides a range of health services on-site at WERDCC, including dental care, mental health care, radiology, optometry and mammography. When an inmate requires specialized medical, mental health, or dental services beyond the capability of the on-site health care system, CMS personnel refer her to an off-site specialist or facility. For all off-site medical appointments, CMS personnel schedule the appointment and notify the office of the Chief of Custody of the date and time. The office of the Chief of Custody is responsible for making the necessary security and transport arrangements. Of the roughly 200 outcounts that the Chief of Custody handles per month, about 155 are for medical care. Given the volume of medical outcounts, it is not uncommon for the office of the Chief of Custody to reschedule or rearrange appointments depending on staff and vehicle availability.
In any given month, there are anywhere from 35 to 50 pregnant inmates at WERDCC. CMS provides pregnancyrelated care to these inmates on site, but also transport inmates off-site for obstetrical or gynecological care. In 2005, Defendants transported approximately 91 inmates off-site for labor and delivery. An inmate in labor is transported to the hospital without any restraints, regardless of her custody level. Two officers typically provide the transport and one officer will remain with the inmate at the hospital throughout the duration of her stay,

anywhere from one to three days, on average. Defendants pay for all the costs associated with prenatal care and childbirth, including transportation and security.
For several year prior to July 2005, Defendants had provided access to nontherapeutic abortion services to inmates who wished to terminate their pregnancies. Pursuant to the DOC policy under which these outcounts 945 would occur, neither WERDCC nor DOC is involved in the process of obtaining an elective abortion *945 for an inmate. The inmate and her social worker would be responsible for determining the cost of the procedure and scheduling the procedure.
From 1998 to 2005, Defendants transported seven inmates for abortion services, each of which was considered elective by Defendants. Under the former policy, the abortions are typically performed at Reproductive Health Services of Planned Parenthood of the St. Louis Region (RHS), and all inmates are responsible for paying for the abortion procedure. Two female corrections officers accompany the inmate to RHS for the procedure, which typically takes one 8-hour shift. While inmates arrive at RHS with wrist restraints, they are not restrained during the procedure.
During this time in which Defendants provided transport for abortion services, no security problems were reported during any abortion-related outcount, nor did transport of an inmate for an abortion cause delays in another inmate receiving medical care. When compared to DOC's general budget, the costs to DOC for an abortion outcount are, according to Defendants, "infrequent" and "minimal." Moreover, the costs associated with an abortion outcount are similar to the general costs associated with medical transports.
In early 2005, the issue of discontinuing transports for abortion services first arose. At this time, DOC was facing considerable budget cuts. Hearings were held on the Department's budget and Defendants were questioned by the Missouri House and Senate about the practice of transporting inmates for abortion services. Defendants were contacted by the legislative branch, both via letter and in person, regarding concerns over transports for elective abortions. Up until July 2005, the Policy remained unchanged.
On or about July 6, 2005, Defendants received a request from inmate JT[3] for an abortion. Her request was initially approved by Defendant Cynthia Prudden, then Acting Superintendent of WERDCC. An abortion appointment was scheduled for July 8, 2005 but the procedure was postponed pending approval at the executive level. At the request of Steve Long, Acting Director of the Division of Adult Institution, Patricia Cornell, Assistant Director of the Division of Adult Institution, prepared a memorandum reviewing the impact abortion transports had on DOC's costs and resources. Comparative costs to DOC in providing inmates with pregnancy related care, including transporting pregnant inmates for prenatal care and labor and delivery were not considered at this time, or thereafter. On July 19, 2005, Long informed Prudden, via memorandum, that JT's request was denied because the procedure was elective and not required to maintain her health. He stated that the transport "presents unnecessary security risks and requires staff resources that are better utilized in other operational areas. Additionally, state statute prohibits the use of our funds to assist with an abortion that is not necessary to save the life of the mother."
On August 22, 2005 Plaintiff Jane Roe was transferred to WERDCC from California custody. Roe was initially admitted WERDCC in early 2005 on a drug charge. She was subsequently paroled, but re-arrested in California for violating the conditions of her probation. She learned of her pregnancy while in custody in California and 946 requested access to abortion services at that time. Before she could obtain the *946 procedure, however, she was returned to Defendants' custody and readmitted to WERDCC. Upon readmittance, Roe asked Defendants for access to abortion services and subsequently repeated this request to various medical and non-medical personnel at WERDCC. Her request was denied on August 30, 2005.
Upon the decision of Larry Crawford and Steve Long, in consultation with General Counsel Daniel Gibson, on September 5, 2005, DOC Policy IS 11-58 was revised to state in relevant part, that Defendants will transport inmates for abortion care if "an abortion is indicated due to threat to the mother's life or health, and if approved by the Medical Director in consultation with the Regional Medical Director." According to Crawford, the reason for the Policy change was prompted by concerns over "security, staff, money and a statute that clearly was not encouraging and may actually be saying that it was unlawful for a nonmedical [sic] purpose."

Plaintiff Roe, after contacting counsel and attempting to administratively resolve the matter of Defendants' August 30 denial of her request, sought emergency temporary relief from this Court on October 12, 2005. On October 13, 2005, the Court granted Plaintiff's Motion for a Preliminary Injunction and ordered Defendants to transport Plaintiff for the purpose of providing medical services to terminate her pregnancy. After a series of delays prompted, in part, by Defendants' outright refusal to comply with the Court's Order, Plaintiff Roe was transported to RHS on October 20, 2005 to receive medical services to terminate her pregnancy. Thereafter, Plaintiff amended her Complaint and moved to certify the action as a class action. On November 28, 2005, the Court certified the following class pursuant to Federal Rule of Civil Procedure 23(b)(2): All pregnant women who are seeking or may in the future seek non-therapeutic abortions and who are in the custody of Defendants at the time Plaintiff Roe filed her Verified Complaint in this case or who will be placed in the custody of Defendants in the future and may while in the custody of Defendants seek a nontherapeutic abortion.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Issues of fact must be material to a resolution of the dispute between the parties; where the only disputed issues of fact are immaterial to the resolution of the legal issues, summary judgement is appropriate. Case v. ADT Automotive, 17 F.Supp.2d 1077 (W.D.Mo.1997) (citing Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992)).
In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Anderson v. Liberty Lobby, 477 U.S. 242, 252-255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).
III. 14th Amendment Claim
Plaintiffs' first claim alleges that Defendants' Policy violates Plaintiffs' Fourteenth Amendment right to an abortion, 947 as articulated in Roe v. Wade, 410 U.S. 113, 93 *947 S.Ct. 705, 35 L.Ed.2d 147 (1973) and reaffirmed in Planned
Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
A. Standard of Review
It is well-settled that imprisonment does not automatically deprive a prisoner of his or her constitutional rights or valid constitutional claims.[4]Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Imprisonment does permit greater restriction of constitutional rights than would otherwise be constitutionally valid and many constitutional rights enjoyed prior to incarceration are curtailed or lost upon imprisonment. Beard v. Banks, ___ U.S. ___, ___ ___, 126 S.Ct. 2572, 2577-78, 165 L.Ed.2d 697, ___ _ ___ (2006); Overton v. Bazzetta, 539 U.S. 126, 128, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). As a matter of long-standing general principle, a prison regulation that impinges upon inmates' constitutional rights is valid "if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S.Ct. 2254. More recently, however, the United States Supreme Court has held that a prison regulation impinging on inmates' right to be free from racial discrimination should be analyzed under a strict scrutiny standard of review, not pursuant to the Turner reasonable-relationship test. Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). In so ruling, the Court stated that Turner applies only to those rights "inconsistent with proper prison administration." Id. at 510, 125 S.Ct. 1141.
Plaintiffs argue that in light of Johnson, the Court should scrutinize their Fourteenth Amendment claim not pursuant to Turner, but under the same standard of review that would apply outside of the prison context 0907the Casey undue burden test. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674.
This argument warrants a brief discussion of both Turner and Johnson. In Turner, the court was presented with constitutional challenges to two rules: one barring inmate-to-inmate correspondence and another restricting

inmate marriage. Turner, 482 U.S. at 91-93, 107 S.Ct. 2254. Turner balanced the principle that certain constitutional rights survive incarceration with the principle that prison administration is best left to the legislative and executive branches, not federal courts. Id. at 84-85, 107 S.Ct. 2254. In balancing these considerations, Turner held that a prison regulation that impinges upon an inmate's constitutional rights is valid if "it is reasonably related to legitimate penological interests" and articulated four factors relevant in determining the constitutionality 948 of a regulation.[5]Id. at 89, 107 S.Ct. 2254. *948 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 transferred 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 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-relationship test is applied "only to rights that are `inconsistent with incarceration.'" Johnson, 543 U.S. at 510, 125 S.Ct. 1141 (citations omitted). The Court reasoned 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, 125 S.Ct. 1141 (quotations and citations omitted).
Plaintiffs 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, 125 S.Ct. 1141. 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 rights, 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 right to marry 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, 410 U.S. 113, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (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 has, 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, 125 S.Ct. 1141. 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 949 analyzed under Turner, Plaintiffs' instant *949 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 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, 107 S.Ct. 2254. 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 minimis cost" reflect the unreasonableness of the regulation. Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir.1990) (quoting Turner, 482 U.S. at 89-91, 107 S.Ct. 2254).
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, 107 S.Ct. 2254. Legitimate penological interests include the deterrence of crime, rehabilitation of prisoners, and institutional security. Monmouth County Corr. Instil. Inmates v. Lanzaro, 834 F.2d 326, 333 (3d Cir.1987) (citations omitted). See also O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Procunier, 416 U.S. at 412, 94 S.Ct. 1800.
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 penological interests put forward by Defendants, only Defendants' purported security interest constitutes a valid penological interest. The other asserted interests 0907conservation of prison resources and the possibility that transport of an inmate for an abortion will delay other scheduled medical appointments 0907are 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, 950 penological or *950 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 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 implications 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 nonmoving party. Anderson, 477 U.S. at 252-255, 106 S.Ct. 2505. 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 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 abortions0907 regardless of the specific security risks posed by a particular inmate, 951 thereby impermissibly centering "around the nature *951 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 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 0907whether 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 Service v. Webster, 851 F.2d 1071, 1084, reed on other grounds, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (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 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 citing the Supreme Court decision in Webster v. Reproductive Health Servs., 492 U.S. 490, 509-10, 109 S.Ct. 3040, 106 L.Ed.2d 410 (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, 107 S.Ct. 2254. 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. Id. at 90, 107 S.Ct. 2254. It is 952 clear that unless Defendants *952 provide transport for inmates to receive abortion services, there is no alternative way for an inmate 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 contrary0907abortion 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 offsite 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 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.
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, 107 S.Ct. 2254.
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, 107 S.Ct. 2254.
The evidence shows that Defendants can fully accommodate Plaintiffs' rights at a de minimis cost to security, the penological interest articulated by Defendants. As discussed above, provision of abortion outcounts does not 953 affect valid security interests. *953 Indeed, Defendants have accommodated the right with little difficulty since 1998. It is clear that the past practice 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, 107 S.Ct. 2254.
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 . . . incarcerat[es]." Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Estelle 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.[6]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 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 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 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.
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 IS SO ORDERED.
[1] Both Plaintiffs' and Defendants' Motions for Summary Judgment address identical legal arguments and, as discussed below, present no genuine issues of material fact. Accordingly, the Court addresses the motions and legal arguments therein simultaneously.
[2] Defendants refer to nontherapeutic abortions as "elective." The Court uses these terms interchangeably.
[3] To protect inmates' confidentiality, inmates nym. are referred to by their initials or by a pseudonym.
[4] In various instances throughout the briefing of these motions, Defendants argue that many of inmates' constitutional rights are completely foreclosed as a result of incarceration, including the right to receive an abortion. Defendants' argument in this respect is unfounded. Federal courts have taken great pains to recognize the valid constitutional claims of inmates and to make clear that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner, 482 U.S. at 84, 107 S.Ct. 2254 (quoting Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)).
[5] These factors, discussed more thoroughly below, are as follows: (I) 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 minimis cost reflect the unreasonableness of the regulation. Turner, 482 U.S at 89-91, 107 S.Ct. 2254.
[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, 125 S.Ct. 1141.
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

JANE ROE,
v. LARRY CRAWFORD, et al.,

Plaintiff, Defendants.

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No. 05-4333-CV-C-DW

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ORDER

Before the Court is Plaintiff Class’ Motion for Attorneys’ Fees (Doc. 89) and Plaintiffs’

Bill of Costs (Doc. 90). Parties have fully briefed this matter.

Attorneys’ Fees

42 U.S.C. § 1988 authorizes attorneys’ fees for prevailing parties on claims brought under

42 U.S.C. § 1983. Defendants do not dispute that Plaintiffs were a prevailing party on a § 1983

claim. Instead, Defendants argue that this Court should hold the Motion in abeyance until the

currently pending appeal is resolved.

The Comments to Federal Rule of Civil Procedure 54(d)(2)(B) specifically provide that if

an appeal on the merits is taken, “the court may rule on the claim for fees...” By ruling on the fee

motion at this juncture, rather than waiting until the appeal’s resolution, the Court reviews the

claimed services “while they are freshly in mind.” Comment Fed. R. Civ. Proc. 54. Further,

given that the appeal has not yet been briefed, parties may seek to consolidate this Order with the

pending appeal.

In assessing the amount recoverable under a Congressionally authorized award of

attorneys’ fees, “the district court should determine ‘the number of hours reasonably expended on

Case 2:05-cv-04333-DW Document 99 Filed 10/17/2006 Page 1 of 3

the litigation multiplied by a reasonable hourly rate.’” Simpson v. Merchs. & Planters Bank, 441 F.3d 572, 580 (8th Cir. 2006), quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (U.S. 1983).
A reasonable hourly rate under § 1988 “is calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel.” Blum v. Stenson, 465 U.S. 886, 895 (U.S. 1984). Plaintiffs, the moving party on the motion, carry the burden of proving that their “requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. at 896. The Court may rely on its experience and knowledge of prevailing market rates. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005)
Plaintiffs’ class claims attorneys’ fee rates varying from $200.00 to $350.00. The Court finds $200 an hour reasonable for Kansas City attorneys of the caliber of Plaintiffs’ counsel in a case involving Constitutional rights. The Court also finds reasonable, given her 21 years of legal assistant experience, the $95.00 per hour rate requested for Ms. Blumenthal’s service.
The Court must then determine if the number of hours claimed by Plaintiffs’ counsel are reasonable. Plaintiffs’ counsel claims fees for approximately 800 hours. This Court reviewed the records and found the number of attorneys and the number of hours generated by seven attorneys excessive. This was not a complex case and the issues were straight-forward. Two attorneys would have been sufficient. Accordingly, the Court will only award Plaintiffs’ class fees resulting from the hours billed by Thomas M. Blumenthal, Missouri counsel, and Diana Kasdan. Together, Mr. Blumenthal and Ms. Kasdan billed 412.8 hours.
Ms. Hutchings, Mr. Blumenthal’s legal assistant, properly billed time for items including deposition coordination and preparation, review of document production and motion exhibit preparation. Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 (1989). Plaintiffs’ counsel may
Case 2:05-cv-04333-DW Document 99 Filed 10/17/2006 Page 2 of 3

recover the 56.3 hours billed by Ms. Hutchings. Plaintiff Class’ has also proven their right to 100% of the hours determined as reasonable.
Plaintiff Class was successful as to every issue prevailing before the Court and the Court’s fee appropriately reflects that success. Hensley v. Eckerhart, 461 U.S. 424, 440 (U.S. 1983) (“We hold that the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U. S. C. § 1988.”).
The Court thus awards $87,908.00 in attorneys’ fees. Costs
Parties may obtain reasonable out-of-pocket costs and expenses as part of a statutory award of attorneys’ fees. Neufeld v. Searle Laboratories, 884 F. 2d 335, 342 (8th Cir. 1989). Plaintiffs enumerated and provided support for the fees arising from this case, including conference call fees and photocopying costs. See Kelly v. Bowen, 862 F.2d 1333, 1336 (8th Cir. 1988) (listing “long-distance telephone expenses, attorney travel expenses, postage, and photocopying costs” as reasonable expenses). The Court accordingly approves Plaintiffs’ request for $3,197.95 in non-taxable costs and $4,181.10 in the verified bill of costs.

IT IS SO ORDERED.

Date: October 17, 2006

/s/ DEAN WHIPPLE Dean Whipple
United States District Court

Case 2:05-cv-04333-DW Document 99 Filed 10/17/2006 Page 3 of 3

 
 U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:05−cv−04333−DW

CLOSED,PHV

Roe v. Crawford et al Assigned to: District Judge Dean Whipple Case in other court: 8th Circuit, 06−03108 Cause: 42:1983 Civil Rights Act
Plaintiff
Jane Roe

Date Filed: 10/12/2005 Date Terminated: 07/18/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Chakshu Patel American Civil Liberties Union Foundation 125 Broad St. 18th Floor New York, NY 10004−2427 (212) 549−2582 Fax: (212) 549−2652 Email: cpatel@aclu.org TERMINATED: 11/05/2007 LEAD ATTORNEY

Diana Kasdan American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004−2427 (212) 549−2643 Fax: (212) 549−2652 Email: dkasdan@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James G. Felakos American Civil Liberties Union of Eastern Missouri 4557 Laclede Avenue St. Louis, MO 63108 (314) 361−3635 Fax: (314) 361−3135 Email: jfelakos@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Nevins American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004−2427 (212) 549−3579 Fax: (212) 549−2652 Email: jnevins@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Talcott Camp American Civil Liberties Union Foundation 125 Broad Street
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18th Floor New York, NY 10004−2427 (212) 549−2632 Fax: (212) 549−2652 Email: tcamp@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Blumenthal Paule Camazine &Blumenthal, PC 165 N Meramec Ave Suite 110 St Louis, MO 63105−3789 314−244−3635 Fax: 314−727−2101 Email: tblumenthal@pcblawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Larry Crawford Director of the Missouri Department of Corrections
Defendant Cyndi Pruden Acting Superintendent Women's Eastern Reception, Diagnostic and Correctional Center, in her official capacity

represented by Michael Pritchett Missouri Dept of Labor &Industrial Relations P.O. Box 59 Jefferson City, MO 65104−0059 573/751−5992 Email: mike.pritchett@labor.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Pritchett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

10/12/2005

1 COMPLAINT for Declaratory and Injunctive Relief against all defendants (Filing fee $250 receipt number 1105683) Service due by 2/9/2006, filed by Thomas Michael Blumenthal on behalf of Jane Roe.(Blumenthal, Thomas) Civil Cover Sheet added on 10/13/2005 (Kee, Georgia). (Entered: 10/12/2005)

10/12/2005

2 Emergency MOTION for temporary restraining order filed byThomas Michael Blumenthal on behalf of Jane Roe Suggestions in opposition/response due by 10/27/2005 unless otherwise directed by the court (Attachments: # 1 Supplement Memorandum in Support# 2 Affidavit James Felakos# 3 Affidavit Sharon Toblin)(Blumenthal, Thomas) (Entered: 10/12/2005)

10/12/2005

3 Motion to allow James Felakos to appear pro hac vice (Pro Hac fee $50 receipt number 1105705) filed byThomas Michael Blumenthal on behalf of Jane Roe (Blumenthal, Thomas) (Entered: 10/12/2005)

10/13/2005

4 ORDER − granting plaintiff's 2 motion for TRO. It is further ORDERED that defendants shall transport Plaintiff Jane Roe to Reproductive Health Services of Planned Parenthood of St. Louis (RHS) located at 4251 Forest Park Avenue, St. Louis, MO. 63108 or any other local health care provider willing to provide the service on an expedited basis, on the earliest date an appointment is available, preferably Friday, October 14, 2005, for the purpose of providing medical services to terminate her pregnancy, including, but not limited to any necessary counseling, education, surgery, and follow−up services, for a period of no more than 48 hours.

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10/13/2005 10/13/2005 10/13/2005 10/13/2005 10/14/2005 10/14/2005 10/14/2005 10/14/2005
10/14/2005 10/14/2005 10/14/2005 10/17/2005

Plaintiff shall post a cash bond of $1.00 security in order to secure this Order. The parties shall provide the Court with a proposed scheduling order in the ordinary course of scheduling, but within no more than 45 days, to establish a schedule to determine whether defendants shall be permanently prohibited from denying prisoners access to medical services to terminate pregnancy, but defendants are temporarily enjoined from denying such access until further order of this Court. Signed by Judge Dean Whipple on 10/13/2005. (Johnson, Yvonne) (Entered: 10/13/2005)
5 NOTICE of filing by Jane Roe re 4 Order on Motion for TRO,,,, Memorandum of Filing of Bond (Blumenthal, Thomas) (Entered: 10/13/2005)
6 NOTICE of appearance by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden (Pritchett, Michael) (Entered: 10/13/2005)
7 NOTICE OF APPEAL as to 4 Order on Motion for TRO,,,, by Larry Crawford, Cyndi Pruden. Filing fee $ 255, receipt number 1107084. (Pritchett, Michael) (Entered: 10/13/2005)
8 MOTION to stay re 4 Order on Motion for TRO,,,, filed byMichael Pritchett on behalf of all defendants Suggestions in opposition/response due by 10/28/2005 unless otherwise directed by the court (Related document(s) 4 ) (Pritchett, Michael) (Entered: 10/13/2005)
9 SUGGESTIONS in opposition re 8 MOTION to stay re 4 Order on Motion for TRO,,,, filed by James G. Felakos on behalf of Plaintiff Jane Roe. Reply suggestions due by 10/31/2005 unless otherwise directed by the court (Related document(s) 8 ) (Felakos, James) (Entered: 10/14/2005)
10 SUGGESTIONS in opposition re 8 MOTION to stay re 4 Order on Motion for TRO,,,, Exhibit 1 to Suggestions filed by James G. Felakos on behalf of Plaintiff Jane Roe. Reply suggestions due by 10/31/2005 unless otherwise directed by the court (Related document(s) 8 ) (Felakos, James) (Entered: 10/14/2005)
11 Reply Suggestions re 8 MOTION to stay re 4 Order on Motion for TRO,,,, "Defendants' REPLY TO PLAINTIFF'S RESPONSE to Defendants' Motion to Stay... " filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden. (Related document(s) 8 ) (Pritchett, Michael) Modified on 10/17/2005 to correct event title (Russel, Jeri). (Entered: 10/14/2005)
12 ORDER − denying 8 motion to stay. Defendants are directed to transport plaintiff to Reproductive Health Services of Planned Parenthood of St. Louis (RHS) located at 4251 Forest Park Ave., St. Louis, MO. on Saturday, October 15, 2005 at 9:00 a.m. for the purpose of providing medical services to terminate the pregnancy, including, but not limited to any necessary counseling, education, surgery, and follow−up services, for a period of no more than 48 hours. Abesent a stay granted by the Eighth Circuit Court of Appeals prior to Saturday, October 15, 2005 at 9:00 a.m., an application for a stay of this Modified Order does not authorize Defendants to refuse to carry out its terms. This Court will not tolerate further defiance of its Orders. Signed by Judge Dean Whipple on 10/14/2005. (Johnson, Yvonne) (Entered: 10/14/2005)
13 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 7 Notice of Appeal (James, Carrie) (Entered: 10/14/2005)
14 TRANSCRIPT of Teleconference on Temporary Injunction held on October 13, 2005 before Judge Dean Whipple. Court Reporter: Sandra Lamken. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office located in Jefferson City, Missouri. Please contact the court reporter listed above for copies. (Sullivan, Tanya) (Entered: 10/14/2005)
US COURT OF APPEALS Eighth Circuit Court of Appeals CASE NUMBER 05−3790 for 7 Notice of Appeal filed by Cyndi Pruden,, Larry Crawford,. (Kee, Georgia) (Entered: 11/04/2005)
15 MODIFIED JUDGMENT OF PRELIMINARY INJUNCTION. Signed by Judge Dean Whipple on 10/17/05. (Hopkins, Karen) (Entered: 10/17/2005)

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10/17/2005 10/18/2005 10/19/2005 10/19/2005 10/19/2005 10/19/2005 10/19/2005 10/19/2005 10/19/2005 10/20/2005
10/20/2005
10/31/2005 10/31/2005 10/31/2005

16 Minute Entry for proceedings held before Judge Sarah W. Hays : STATUS CONFERENCE held on 10/17/2005. Telephone conference held. (Court Reporter JoRita Gicinto.) (Gicinto, JoRita) (Entered: 10/18/2005)
26 Minute Entry for proceedings held before Judge Sarah W. Hays : TELEPHONE CONFERENCE held on 10/18/2005. (Court Reporter JoRita Gicinto.) (Gicinto, JoRita) (Entered: 11/01/2005)
17 AMENDED COMPLAINT for Declaratory and Injunctive Relief against all defendants filed by Thomas Michael Blumenthal on behalf of Jane Roe.(Blumenthal, Thomas) (Entered: 10/19/2005)
18 Supplemental MOTION to certify class filed byThomas Michael Blumenthal on behalf of Jane Roe Suggestions in opposition/response due by 11/3/2005 unless otherwise directed by the court (Blumenthal, Thomas) (Entered: 10/19/2005)
19 SUGGESTIONS in support re 18 Supplemental MOTION to certify class filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe. (Related document(s) 18 ) (Blumenthal, Thomas) (Entered: 10/19/2005)
20 Motion to allow Jennifer Nevins to appear pro hac vice (Pro Hac fee $50 receipt number 1111616) filed byThomas Michael Blumenthal on behalf of Jane Roe (Blumenthal, Thomas) (Entered: 10/19/2005)
21 Motion to allow Talcott Camp to appear pro hac vice (Pro Hac fee $50 receipt number 1111619) filed byThomas Michael Blumenthal on behalf of Jane Roe (Blumenthal, Thomas) (Entered: 10/19/2005)
22 Motion to allow Chakshu Patel to appear pro hac vice (Pro Hac fee $50 receipt number 1111624) filed byThomas Michael Blumenthal on behalf of Jane Roe (Blumenthal, Thomas) (Entered: 10/19/2005)
23 Motion to allow Diana Kasdan to appear pro hac vice (Pro Hac fee $50 receipt number 1111625) filed byThomas Michael Blumenthal on behalf of Jane Roe (Blumenthal, Thomas) (Entered: 10/19/2005)
ORDER granting 20 21 22 23 motion to appear pro hac vice approved by Clerk of Court. Attorney Chakshu Patel for Jane Roe, Jennifer Nevins for Jane Roe, Diana Kasdan for Jane Roe, Talcott Camp for Jane Roe.
This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached.
(Bax, Laura) (Entered: 10/20/2005)
ORDER granting 3 motion to appear pro hac vice approved by Clerk of Court. Attorney James G. Felakos for Jane Roe.
This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached.
(Bax, Laura) (Entered: 10/20/2005)
24 ANSWER to Amended Complaint filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden.(Pritchett, Michael) (Entered: 10/31/2005)
25 SUGGESTIONS in opposition re 18 Supplemental MOTION to certify class filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden. Reply suggestions due by 11/15/2005 unless otherwise directed by the court (Related document(s) 18 ) (Pritchett, Michael) (Entered: 10/31/2005)
THIS DOCUMENT HAS BEEN DELETED. The document was originally filed as MOTION for extension of time to complete discovery Designation of Expert Witnesses &Submission of Expert Reports &of Discovery Deadline filed byMichael Pritchett on behalf of Larry Crawford, Cyndi Pruden (Pritchett, Michael) Modified on 11/1/2005 (James, Carrie). (Entered: 10/31/2005)

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11/01/2005
11/15/2005
11/28/2005 12/02/2005 12/13/2005 12/13/2005 12/16/2005 12/19/2005 01/03/2006 01/03/2006 01/30/2006
02/03/2006 02/10/2006 02/10/2006 02/22/2006 02/23/2006

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 10/31/05 as Motion for Extension of Time, doc #26. A document has been deleted from the entry because it was filed in the wrong case. This is is a text entry only − no document is attached. (James, Carrie) (Entered: 11/01/2005)
27 REPLY SUGGESTIONS to motion re 18 Supplemental MOTION to certify class filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe. (Attachments: # 1 Affidavit Exhibit A − Declaration of Paula Gianino# 2 Affidavit Exhibit B − Declaration of Maya L. Ingram)(Related document(s) 18 ) (Blumenthal, Thomas) (Entered: 11/15/2005)
28 ORDER − granting plaintiff's 18 motion to certify class. Signed by Judge Dean Whipple on 11/28/2005. (Johnson, Yvonne) (Entered: 11/28/2005)
29 REPORT of Rule 26(f) planning meeting. (Blumenthal, Thomas) (Entered: 12/02/2005)
30 TRIAL ORDER: Bench Trial set for 8/7/2006 at 9:00 A.M. in Courtroom 8B, Kansas City, MO. before Dean Whipple. Signed by Judge Dean Whipple on 12/13/2005. (Johnson, Yvonne) (Entered: 12/14/2005)
31 SCHEDULING ORDER: Discovery shall close as of 4/14/2006. Signed by Judge Dean Whipple on 12/13/2005. (Johnson, Yvonne) (Entered: 12/14/2005)
32 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden.(Pritchett, Michael) (Entered: 12/16/2005)
33 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe.(Blumenthal, Thomas) (Entered: 12/19/2005)
34 CERTIFICATE OF SERVICE by Jane Roe of Plaintiffs' First Interrogatories Directed to All Defendants and Plaintiffs' First Request for Production of Documents filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe.(Blumenthal, Thomas) (Entered: 01/03/2006)
35 USCA JUDGMENT AND MANDATE as to 7 Notice of Appeal filed by Cyndi Pruden,, Larry Crawford, with mandate issued on November 21, 2005. The appeal is dismissed as moot. (Beard, Melanie) (Entered: 01/06/2006)
36 MOTION for extension of time to complete discovery (Plaintiffs' First Interrogatories and First Request for Production of Documents) filed byMichael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 2/14/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 01/30/2006)
37 ORDER granting 36 motion for extension of time to file responses to Plaintiffs' First Interrogatories and Plaintiffs' First Request for Production of Documents. Signed by Judge Dean Whipple on 2/3/06. (Diefenbach, Tracy) (Entered: 02/03/2006)
38 CERTIFICATE OF SERVICE by Jane Roe filed by Diana Kasdan on behalf of Plaintiff Jane Roe.(Kasdan, Diana) (Entered: 02/10/2006)
39 CERTIFICATE OF SERVICE by Larry Crawford, Cyndi Pruden filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden.(Pritchett, Michael) (Entered: 02/10/2006)
40 CERTIFICATE OF SERVICE by all plaintiffs of Notices of Deposition filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe.(Blumenthal, Thomas) (Entered: 02/22/2006)
41 CERTIFICATE OF SERVICE by all plaintiffs Notice of Subpoena of Elizabeth Conley, M.D. filed by Diana Kasdan on behalf of Plaintiff Jane Roe.(Kasdan, Diana) (Entered: 02/23/2006)

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02/23/2006

42 CERTIFICATE OF SERVICE by all plaintiffs Subpoena of Elizabeth Conley, M.D. filed by Diana Kasdan on behalf of Plaintiff Jane Roe.(Kasdan, Diana) (Entered: 02/23/2006)

04/10/2006

43 MOTION for extension of time filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 4/25/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 04/10/2006)

04/14/2006

44 NOTICE to take deposition of Reproductive Health Services of Planned Parenthood of St. Louis filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden.(Pritchett, Michael) (Entered: 04/14/2006)

04/17/2006

45 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Jennifer Raspberry (Beard, Melanie) (Entered: 04/17/2006)

04/17/2006

46 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Cynthia Prudden (Beard, Melanie) (Entered: 04/17/2006)

04/17/2006

47 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Patricia Cornell (Beard, Melanie) (Entered: 04/17/2006)

04/17/2006

48 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Larry Crawford (Beard, Melanie) (Entered: 04/17/2006)

04/17/2006

49 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Steve Long (Beard, Melanie) (Entered: 04/17/2006)

04/17/2006

50 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Elizabeth J. Conley, D.O. (Beard, Melanie) (Entered: 04/17/2006)

04/17/2006

51 ORDER − granting defendant's 43 motion for extension of time to extend discovery to 4/21/2006. Signed by Judge Dean Whipple on 4/17/2006. (Johnson, Yvonne) (Entered: 04/18/2006)

05/09/2006

52 MOTION for leave to file excess pages filed by Diana Kasdan on behalf of Jane Roe Suggestions in opposition/response due by 5/24/2006 unless otherwise directed by the court (Kasdan, Diana) (Entered: 05/09/2006)

05/11/2006

53 MOTION for extension of time in which to file Defendants' Motion for Summary Judgment filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 5/26/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 05/11/2006)

05/11/2006

54 SUGGESTIONS in opposition re 53 MOTION for extension of time in which to file Defendants' Motion for Summary Judgment filed by Diana Kasdan on behalf of Plaintiff Jane Roe. Reply suggestions due by 5/26/2006 unless otherwise directed by the court (Related document(s) 53 ) (Kasdan, Diana) (Entered: 05/11/2006)

05/12/2006

55 ORDER denying 53 motion for extension of time. Signed by Judge Scott O. Wright on 5/12/2006. (McIlvain, Kelly) (Entered: 05/12/2006)

05/15/2006

56 MOTION for leave to file Defendants' Motion for Summary Judgment Under Seal filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 5/30/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 05/15/2006)

05/15/2006

57 MOTION for summary judgment filed by Thomas Michael Blumenthal on behalf of all plaintiffs Suggestions in opposition/response due by 6/19/2006 unless otherwise directed by the court (Attachments: # 1 Supplement Statement of Uncontroverted Material Fact# 2 Notice of Exhibit Attachment Exhibits 1−38 in support of motion)(Blumenthal, Thomas) Modified on 7/17/2006 to indicate receipt of paper exhibits in JC Clerk's office (Russel, Jeri). (Entered: 05/15/2006)

05/15/2006

58 ORDER − granting defendants' 56 motion for leave to file Motion for summary judgment w/suggestions under seal. Signed by Judge Dean Whipple on 5/15/2006. (Johnson, Yvonne) (Entered: 05/15/2006)

05/15/2006

59 SUGGESTIONS in support re 57 MOTION for summary judgment filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe. (Attachments: # 1 Supplement Unpublished Opinion Ptaschnik v. Luzerne County)(Related

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document(s) 57 ) (Blumenthal, Thomas) (Entered: 05/15/2006)

05/15/2006

60 MOTION for Summary Judgment (SEALED) filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 6/15/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A, Part 1# 2 Exhibit A, Part 2# 3 Exhibit B, Part 1# 4 Exhibit Exhibit B, Part 2# 5 Exhibit C, Part 1# 6 Exhibit C, Part 2# 7 Exhibit D, Part 1# 8 Exhibit D, Part 2# 9 Exhibit E, Part 1# 10 Exhibit E, Part 2# 11 Exhibit F# 12 Exhibit G, Part 1# 13 Exhibit G, Part 2)(Pritchett, Michael) Modified on 5/19/2006 to correct docket text and reponse deadline (Bax, Laura). (Entered: 05/15/2006)

05/15/2006

MOTION for Order (SEALED) Defendants' Suggestions in Support of Their Motion for Summary Judgment filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 5/30/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 05/15/2006)

05/16/2006

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 5/15/06. The document has been deleted from the entry (#61). If necessary, counsel has been contacted and asked to refile a corrected document. The document was filed as a motion when in fact it was suggestions in support of document #60. This is a text entry only − no document is attached. (Bax, Laura) (Entered: 05/16/2006)

05/16/2006

61 SUGGESTIONS in support re 60 MOTION for Order (SEALED) Defendants Motion for Summary Judgment (refiled upon deputy clerk's direction) filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden. (Related document(s) 60 ) (Pritchett, Michael) (Entered: 05/16/2006)

05/23/2006

62 ORDER − granting plaintiffs 52 motion for leave to file excess pages by seven pages, excluding the cover pages and certificate of service, in order to file a memorandum of 22 pages in support of their Motion for Summary Judgment. Signed by Judge Dean Whipple on 5/23/20026. (Johnson, Yvonne) (Entered: 05/24/2006)

06/08/2006

63 MOTION to seal document Plaintiffs' Suggestions In Opposition to Defendants' Motion for Summary Judgment filed by Diana Kasdan on behalf of all plaintiffs Suggestions in opposition/response due by 6/23/2006 unless otherwise directed by the court (Kasdan, Diana) (Entered: 06/08/2006)

06/09/2006

64 ORDER − granting plaintiff's 63 motion to seal its Suggestions in Opposition to defendants' Motion for summary judgment. Signed by Judge Dean Whipple on 6/9/2006. (Johnson, Yvonne) (Entered: 06/09/2006)

06/09/2006

65 SUGGESTIONS in opposition to motion for summary judgment (SEALED) re 60 MOTION for Summary Judgment (SEALED) filed by Diana Kasdan on behalf of Plaintiff Jane Roe. Reply suggestions due by 6/26/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit Exhibit A to Plaintiffs Supplemental Statement of Facts# 2 Supplement Plaintiffs' Supplemental Statement of Facts)(Related document(s) 60 ) (Kasdan, Diana) (Entered: 06/09/2006)

06/19/2006

66 MOTION for order To File Under Seal Defendants' Response in Opposition to Plaintiff's Motion for Summary Judgment filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 7/5/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 06/19/2006)

06/19/2006

67 AGREED UPON STATEMENT of Uncontroverted Material Facts by all parties. (Kasdan, Diana) (Entered: 06/19/2006)

06/19/2006

68 SUGGESTIONS in opposition to motion for summary judgment (SEALED) re 57 MOTION for summary judgment filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden. Reply suggestions due by 7/5/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit H# 2 Exhibit I)(Related document(s) 57 ) (Pritchett, Michael) (Entered: 06/19/2006)

06/23/2006

SUGGESTIONS in support re 60 MOTION for Summary Judgment (SEALED) Defendant's Reply to Plaintiff's Suggestions and to Plaintiffs' Supplemental Statement of Facts and Disputed Facts in Response to Defendants' Statement of Uncontested Facts filed by Michael Pritchett on behalf of Defendants Larry

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Crawford, Cyndi Pruden. (Related document(s) 60 ) (Pritchett, Michael) Modified on 6/27/2006 (Russel, Jeri).Document deleted−wrong event used (Entered: 06/23/2006)

06/26/2006

70 PROPOSED WITNESS LIST by Jane Roe. (Kasdan, Diana) (Entered: 06/26/2006)

06/26/2006

71 PROPOSED EXHIBIT LIST by Jane Roe. (Kasdan, Diana) (Entered: 06/26/2006)

06/26/2006

72 DESIGNATION of Deposition Testimony by Jane Roe. (Kasdan, Diana) (Entered: 06/26/2006)

06/26/2006

73 PROPOSED FINDINGS OF FACT by Jane Roe &Proposed Conclusions of Law. (Kasdan, Diana) (Entered: 06/26/2006)

06/27/2006

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on June 23, 2006 as Suggestions in Support. A document has been deleted from the entry. Counsel has been contacted and asked to refile the document using the correct event. This is a text entry only − no document is attached. (Russel, Jeri) (Entered: 06/27/2006)

06/27/2006

74 REPLY SUGGESTIONS to motion re 60 MOTION for Summary Judgment (SEALED) "Defendants' Reply to Plaintiffs' Suggestions in Opposition to Defendants' Motion for Summary Judgment and to Plaintiffs' Supplemental Statement of Facts and Disputed Facts" filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden. (Related document(s) 60 ) (Pritchett, Michael) (Entered: 06/27/2006)

06/28/2006

75 ORDER RESCHEDULIING TRIAL: Case is hereby removed from the trial docket commencing on 8/7/2006, and is hereby specially set for non−jury trial set for 8/15/2006, at 9:00 A.M. in Courtroom 8B, Kansas City, MO. before Dean Whipple. The schedule of pretrial filing deadlines set forth in the Trial Order filed on December 13, 2005 (Document No. 30) remains unchanged. Signed by Judge Dean Whipple on 6/28/2006. (Johnson, Yvonne) (Entered: 06/28/2006)

06/29/2006

76 REPLY SUGGESTIONS to motion re 57 MOTION for summary judgment "Plaintiffs' Reply in Support of Their Motion for Summary Judgment" filed by Diana Kasdan on behalf of Plaintiff Jane Roe. (Related document(s) 57 ) (Kasdan, Diana) (Entered: 06/29/2006)

07/03/2006

77 PROPOSED FINDINGS OF FACT by Larry Crawford, Cyndi Pruden. (Pritchett, Michael) (Entered: 07/03/2006)

07/03/2006

78 PROPOSED WITNESS LIST by Larry Crawford, Cyndi Pruden. (Pritchett, Michael) (Entered: 07/03/2006)

07/03/2006

79 PROPOSED EXHIBIT LIST by Larry Crawford, Cyndi Pruden. (Pritchett, Michael) (Entered: 07/03/2006)

07/03/2006

80 DESIGNATION of Exhibits to Which Identification and Authenticaiton are Waived by Larry Crawford, Cyndi Pruden. (Pritchett, Michael) (Entered: 07/03/2006)

07/03/2006

81 OBJECTIONS (non motions) to Deposition Testimony Designated by Plaintiffs and Designations of Deposition Testimony that will be Offered. (Pritchett, Michael) (Entered: 07/03/2006)

07/05/2006

82 ORDER − granting defendant's 66 motion to file their Response in Opposition to Plaintiff's Summary Judgment Motion Package under seal. Signed by Judge Dean Whipple on 7/5/2006. (Johnson, Yvonne) (Entered: 07/06/2006)

07/10/2006

83 OBJECTIONS (non motions) re 81 Objections (non motion) &Cross−Designations. Related document: 81 Objections (non motion).(Kasdan, Diana) (Entered: 07/10/2006)

07/10/2006

84 MOTION in limine Pls' Mot. to Overrule Defs' Objection to Certain Proposed Exs. filed by Diana Kasdan on behalf of Jane Roe Suggestions in opposition/response due by 7/25/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Kasdan, Diana) (Entered: 07/10/2006)

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07/10/2006 07/17/2006 07/18/2006 07/18/2006 08/01/2006 08/01/2006 08/16/2006 08/16/2006
08/16/2006 08/16/2006
08/17/2006
08/18/2006 08/18/2006 08/22/2006 08/30/2006
09/07/2006
09/26/2006

85 DESIGNATION of Waiver of Authentication and Identification of Defendants' Exhibits by Jane Roe. (Blumenthal, Thomas) (Entered: 07/10/2006)
86 TRIAL BRIEF by Jane Roe. (Kasdan, Diana) (Entered: 07/17/2006)
87 ORDER − granting plaintiff's 57 motion for summary judgment, denying defendant's 60 Sealed Motion for summary judgment. Signed by Judge Dean Whipple on 7/18/2006. (Johnson, Yvonne) (Entered: 07/18/2006)
88 CLERK'S JUDGMENT − entered. (Johnson, Yvonne) (Entered: 07/18/2006)
89 MOTION for attorney fees filed by Thomas Michael Blumenthal on behalf of all plaintiffs Suggestions in opposition/response due by 8/16/2006 unless otherwise directed by the court (Blumenthal, Thomas) (Entered: 08/01/2006)
90 PROPOSED BILL OF COSTS by Jane Roe.Objections to Bill of Costs due by 8/16/2006 (Blumenthal, Thomas) (Entered: 08/01/2006)
91 NOTICE OF APPEAL by Larry Crawford, Cyndi Pruden. Filing fee $ 455, receipt number 243419. (Pritchett, Michael) (Entered: 08/16/2006)
Document #92 has been deleted, originally filed as REPLY SUGGESTIONS to motion re 89 MOTION for attorney fees filed by Michael Pritchett. Atty has refiled using correct event. (Pritchett, Michael) Modified on 8/17/2006 (James, Carrie). (Entered: 08/16/2006)
93 OBJECTION to 90 bill of costs filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden.Reply to Objections to Bill of Costs due by 8/30/2006 (Related document(s) 90 ) (Pritchett, Michael) (Entered: 08/16/2006)
94 SUGGESTIONS in opposition re 89 MOTION for attorney fees filed by Michael Pritchett on behalf of Defendants Larry Crawford, Cyndi Pruden. Reply suggestions due by 8/31/2006 unless otherwise directed by the court (Related document(s) 89 ) (Pritchett, Michael) (Entered: 08/16/2006)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 8/16/06 as Document No. 92, Reply Suggestions. The document has been deleted as the incorrect event was used when filing the document. Counsel will refile the document using the correct event. This is a text entry only − no document is attached. (James, Carrie) (Entered: 08/17/2006)
95 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 91 Notice of Appeal (James, Carrie) (Entered: 08/18/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Fri Aug 18 11:28:04 CDT 2006 (James, Carrie) (Entered: 08/18/2006)
USCA Case Number from 8th Circuit is 06−3108 for 91 Notice of Appeal filed by Cyndi Pruden,, Larry Crawford, THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Bax, Laura) (Entered: 08/22/2006)
96 Consent MOTION for extension of time to file response/reply as to 89 MOTION for attorney fees, 90 Proposed Bill of Costs filed by Thomas Michael Blumenthal on behalf of all plaintiffs Suggestions in opposition/response due by 9/14/2006 unless otherwise directed by the court (Related document(s) 89 , 90 ) (Blumenthal, Thomas) (Entered: 08/30/2006)
97 ORDER − granting plaintiff's 96 motion for extension of time to file response/reply re 89 MOTION for attorney fees. Defendant's Suggestions in opposition to Plaintiffs' Motion for attorney fees and Defendants' objection to plaintiffs' bill of costs due by 9/27/2006 unless otherwise directed by the court. Signed by Judge Dean Whipple on 9/7/2006. (Johnson, Yvonne) (Entered: 09/08/2006)
98 REPLY SUGGESTIONS to motion re 89 MOTION for attorney fees and bill of costs filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Related document(s) 89 ) (Blumenthal, Thomas) (Entered: 09/26/2006)

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10/17/2006 10/18/2006 10/31/2006 11/03/2006
11/29/2006
09/04/2007 09/27/2007 10/04/2007 11/05/2007 01/22/2008
02/27/2008 03/20/2008 06/05/2008 11/17/2008

99 ORDER − granting plaintiff's 89 motion for attorney fees for $87,908.00 in attorneys' fees. The Court accordingly approves plaintiffs' request for $3,197.95 in non−taxable costs and $4,181.10 in the verified bill of costs. Signed by Judge Dean Whipple on 10/17/2006. (Johnson, Yvonne) (Entered: 10/17/2006)
100 ORDER − that the Court corrects a typograhical error in this Court's order dated 10/17/2006 (doc. #99). The order should read "the number of hours generated by six attorneys and one legal assistant." Signed by Judge Dean Whipple on 10/18/2006. (Johnson, Yvonne) (Entered: 10/18/2006)
101 MOTION to alter judgment or amend its judgment of October 17, 2006 filed by Michael Pritchett on behalf of Larry Crawford, Cyndi Pruden Suggestions in opposition/response due by 11/15/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 10/31/2006)
102 SUGGESTIONS in opposition re 101 MOTION to alter judgment or amend its judgment of October 17, 2006 filed by Thomas Michael Blumenthal on behalf of Plaintiff Jane Roe. Reply suggestions due by 11/20/2006 unless otherwise directed by the court (Related document(s) 101 ) (Blumenthal, Thomas) (Entered: 11/03/2006)
103 ORDER − granting defendant's 101 motion to alter judgment. Payment of the fees, costs, and expenses ordered on Oct. 17, 2006 are stayed pending resolution of Defendants' appeal. Interest shall run on the award from the date of the Court's Order at the federal rate of interest. Signed by Judge Dean Whipple on 11/29/2006. (Johnson, Yvonne) (Entered: 11/29/2006)
104 MOTION for Order (SEALED) filed by Diana Kasdan on behalf of Jane Roe. Suggestions in opposition/response due by 9/20/2007 unless otherwise directed by the court. (Kasdan, Diana) (Entered: 09/04/2007)
105 ORDER − granting plaintiff's 104 Motion for Order. Plaintiffs' request to replace Exhibit #34 to Plaintiffs' Motion for Summary Judgment with the attached redacted version. Signed by Judge Dean Whipple on 9/27/2007. (Johnson, Yvonne) (Entered: 09/27/2007)
106 MOTION to withdraw as attorney Chakshu Patel filed by Diana Kasdan on behalf of Jane Roe. Suggestions in opposition/response due by 10/19/2007 unless otherwise directed by the court. (Kasdan, Diana) (Entered: 10/04/2007)
107 ORDER − granting plaintiff's 106 motion to withdraw as attorney. Attorney Chakshu Patel terminated. Signed by Judge Dean Whipple on 11/5/2007. (Johnson, Yvonne) (Entered: 11/05/2007)
108 USCA Judgment and Opinion as to 91 Notice of Appeal filed by Cyndi Pruden, Larry Crawford This is a preliminary judgment and opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Attachments: # 1 Opinion, # 2 Letter, # 3 Letter)(Bax, Laura) (Entered: 01/22/2008)
109 ORDER of US COURT OF APPEALS (Bax, Laura) (Entered: 02/27/2008)
110 MANDATE of US COURT OF APPEALS as to 91 Notice of Appeal filed by Cyndi Pruden, Larry Crawford with mandate issued on 3/18/08. (Bax, Laura) (Entered: 03/20/2008)
111 Appeal Remark: Notice that writ of cert was filed with Supreme Court (Attachments: # 1 Supreme Court letter)(Russel, Jeri) (Entered: 06/05/2008)
112 Appeal Remark : Letter from US Supreme Court denying certiorari (Bax, Laura) (Entered: 11/17/2008)

Case: 2:05-cv-04333-DW As of: 07/19/2012 09:44 AM CDT 10 of 10

 
 No. 06-3108
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
JANE ROE,
App ellee, v.
LARRY CRAWFORD, et al., Appellants.
Appeal from the United States District Court, Western District of Missouri, Central Division
The Honorable Dean Whipple, Chief Judge
BRIEF OF APPELLANTS
JEREMIAH W. (JAY) NIXON Attorney General
Michael Pritchett Missouri Bar No. 33848 Emily A. Dodge Missouri Bar No. 53914 Assistant Attorneys General
Post Office Box 899 Jefferson City, MO 65102 Phone: (573) 751-3321 Fax: (573) 751-9456
ATTORNEYS FOR APPELLANTS

SUMMARY AND REQUEST FOR ORAL ARGUMENT In 2005, the Department of Corrections revised its policy on inmate abortions. Under this policy, the Department will only transport an inmate to obtain an abortion outside prison walls if the abortion is medically necessary. 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 showed 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 policy, however, does not infringe on abortion rights because the right to elective abortion does not survive incarceration. Even if the policy did impinge on abortion rights, the policy is consistent with the Fourteenth Amendment because there is a direct, reasonable relationship between the policy and the Department’s legitimate penological interest in security. The policy does not violate the Eighth Amendment because elective abortions are not serious medical needs. Defendants seek reversal of the district court’s award of declaratory and injunctive relief and entry of summary judgment in their favor. In order to adequately address the points on appeal, Defendants request twenty minutes for oral argument.
1

TABLE OF CONTENTS
SUMMARY AND REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. The policy of the Missouri Department of Corrections not to transport prisoners for non-therapeutic abortions (an application of its general policy not to transport inmates for non-medically necessary treatment) is consistent with the plaintiff class’s Fourteenth Amendment right to an abortion because the policy does not impose an undue burden on prisoners’ ability to obtain an abortion and the policy is reasonably related to the Department’s legitimate penological interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. The policy of the Missouri Department of Corrections not to transport prisoners for non-therapeutic abortions is consistent with the plaintiff class’s Eighth Amendment right to be free from cruel and unusual punishment because no serious medical need is involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2

CERTIFICATE OF SERVICE AND COMPLIANCE . . . . . . . . . . . . . . . . . . . . . 40 ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3

TABLE OF AUTHORITIES Cases Beard v. Banks, 126 S. Ct. 2572 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Bell v. Wolfish, 99 S. Ct. 1861 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23 Camberos v. Branstad, 73 F.3d 174 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . 37, 38 Carey v. Population Servs., 97 S. Ct. 2010 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 23 Champion v. Artuz, 76 F.3d 483 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Dike v. School Bd., 650 F.2d 783 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . 24 Estelle v. Gamble, 97 S. Ct. 285 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002), cert. denied, 123 S. Ct.
558 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 35 Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 21, 22 Goodwin v. Turner, 908 F. 2d 1395 (8th Cir. 1990) . . . . . . . . . . . . . . 21, 23, 32, 35 Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . 29 Hudson v. Palmer, 104 S. Ct. 3194 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 LeGrand v. Area Resources for Community & Human Servs., 394 F.3d 1098
(8th Cir. 2005), cert. denied, 126 S. Ct. 335 (2005) . . . . . . . . . . . . . . . . . . 20 Maher v. Roe, 97 S. Ct. 2376 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326 (3d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 Overton v. Bazzetta, 123 S. Ct. 2162 (2003) . . . . . . . . . . . . . . . . . 22, 23, 25, 34, 35
4

Pell v. Procunier, 94 S. Ct. 2800 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Richardson v. Ramirez, 94 S. Ct. 2655 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Roe v. Wade, 93 S. Ct. 705 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 South Dakota v. United States Dept. of Interior, 423 F.3d 790
(8th Cir. 2005), cert. denied, 2006 WL 1520764 (2006) . . . . . . . . . . . . . . 20 Southerland v. Thigpen, 784 F.2d 713 (5th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 24 Tashjian v. Republican Party of Conn., 107 S. Ct. 544 (1986) . . . . . . . . . . . . . . 21 Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990), cert. denied, 2006
WL 1520764 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 Turner v. Safley, 107 S. Ct. 2254 (1987) . . . . . . . . . . . . . 22, 23, 26, 31, 32, 34, 35 Victoria W. v. Larpenter, 205 F. Supp. 2d 580 (E.D. La. 2002), aff’d, 369
F.3d 475 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 38
Statutes & Regulations 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fed. R. App. P. 4(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fed.R.Civ.P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5

JURISDICTIONAL STATEMENT This appeal is from a district court decision granting a plaintiff class declaratory relief and an injunction prohibiting enforcement of the Missouri Department of Corrections’ policy not to transport inmates for the purpose of obtaining elective abortions. The judgment was issued on July 18, 2006, by the Honorable Dean Whipple, Chief United States District Judge for the Western District of Missouri. The plaintiff class asserted jurisdiction under 28 U.S.C. §§ 1331, 1343, 2201and 2202. This Court has jurisdiction over this appeal under 28 U.S.C. § 1291 because the order appealed from is now final. The notice of appeal, filed on August 16, 2006, was timely under Fed. R. App. P. 4(a)(1).
6

STATEMENT OF THE ISSUES I.
Whether the policy of the Missouri Department of Corrections not to transport prisoners for non-therapeutic abortions (an application of its general policy not to transport inmates for non-medically necessary treatment) is consistent with the plaintiff class’s Fourteenth Amendment right to an abortion because the policy does not impose an undue burden on prisoners’ ability to obtain an abortion and the policy is reasonably related to the Department’s legitimate penological interests. Overton v. Bazzetta, 123 S. Ct. 2162, 2166-67 (2003) Turner v. Safley, 107 S. Ct. 2254, 2262 (1987) Victoria W. v. Larpenter, 369 F.3d 475, 486-87 (5th Cir. 2004)
7

II. Whether the policy of the Missouri Department of Corrections not to transport prisoners for non-therapeutic abortions is consistent with the plaintiff class’s Eighth Amendment right to be free from cruel and unusual punishment because no serious medical need is involved. Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) Estelle v. Gamble, 97 S. Ct. 285, 290 (1976) Victoria W. v. Larpenter, 205 F. Supp. 2d 580, 595 (E.D. La. 2002) Victoria W. v. Larpenter, 369 F.3d 475, 486-87 (5th Cir. 2004)
8

STATEMENT OF THE CASE Jane Roe filed this action on her own behalf on October 12, 2005, and on October 19, 2005, amended her Complaint on behalf of herself and others similarly situated, against Larry Crawford, Director of the Missouri Department of Corrections, and Cynthia Prudden, Acting Superintendent of the Women’s Eastern Reception, Diagnostic, and Correctional Center, in their official capacities. Roe alleged that a Department policy, IS 11-58, was unconstitutional because it prevented pregnant inmates from exercising their right to have abortions and because the policy showed deliberate indifference to inmates’ serious medical needs by compelling them to carry their pregnancies to term. Roe sought: (1) a declaration that the policy is unconstitutional and (2) an injunction against enforcement of the policy. Plaintiff filed her motion for class certification on October 19, 2005. Following Defendants’ opposition to the motion and Plaintiff’s reply, the district court, on November 28, 2005, certified as the plaintiff class: “All pregnant women who are seeking or may in the future seek non-therapeutic abortions and who are in the custody of Defendants at the time Plaintiff Roe filed her Verified Complaint in this case or who will be placed in the custody of Defendants in the future and may while in the custody of Defendants seek a non-therapeutic abortion.” On July 18, 2006, following cross motions for summary judgment, the district court denied Defendants’ motion and granted the plaintiff class’s motion, concluding
9

that the Department’s policy violated the Eighth and Fourteenth Amendments of the United States Constitution. Defendants filed their notice of appeal on August 16, 2006.
10

STATEMENT OF THE FACTS1 In 2005, the Department of Corrections revised its pregnancy counseling policy, IS 11-58, which addresses the prenatal care and support services available to pregnant inmates. App. 249. Before the amendment, IS 11-58 provided that if an inmate expressed her wish to have an abortion, the Department’s classification staff would contact Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., (RHS) to schedule the abortion and to discuss security arrangements for the time the inmate would be at the RHS facility. App. 251. Inmates were required to pay for the abortion procedure themselves. App. 376-77, 720 (Dep. p. 35). The 2005 revision to IS 11-58 reflected this change in the Department’s policy on inmate abortion: it would no longer transport inmates for elective abortions. App. 249, 289-90, 682 (Dep. p. 44). Where an abortion was medically indicated due to a threat to the mother’s health or life, the Department would provide transportation and security for the procedure. App. 249. The Department does not provide transportation to inmates for any elective medical procedures. App. 682 (Dep. p. 44). Prior to the change in IS 11-58, elective abortions were the only instance in which the Department would approve transport of prisoners outside of correctional centers to obtain health care services that were not medically necessary. App. 789.
1References to the Joint Appendix are denoted “App. __.” 11

A wide range of medical and dental care is available to inmates inside the Women’s Eastern Reception Diagnostic and Correctional Center (WERDCC) in Vandalia, Missouri. App. 646 (Dep. pp. 18-20). Physicians review requests for offsite medical care on a individual basis. App. 649 (Dep. p. 32). Where there is a threat to an inmate’s health or life, care is considered medically necessary. App. 655 (Dep. p. 56). The existence of a threat to health is determined by the treating physician. App. 655 (Dep. p. 56).
Where the patient’s health will not be endangered by delaying a procedure, the procedure may be considered elective. App. 649 (Dep. pp. 31-32), 655 (Dep. p. 56). For example, anterior cruciate ligament repair may be an elective procedure, depending on the medical findings for an individual patient. App. 650 (Dep. pp. 3334). In some cases, off-site specialty care to repair a reducible hernia may be elective, but whether the repair is medically necessary is determined on an individual basis. App. 651 (Dep. pp. 37-38). The Department does not have any policy that categorizes specific medical procedures or health care services as elective, rather than medically necessary; medical necessity is determined by physicians exercising their professional judgment. App. 655-56 (Dep. pp. 53, 56, 57), 707 (Dep. p. 143). Physicians determine whether a procedure or treatment is medically necessary or elective on a case-by-case basis. App. 649 (Dep. p. 32), 655-56 (Dep. pp. 53, 56, 57). Thus even if administrators or other persons decide that a procedure is elective or not
12

medically necessary, the treating physician has the authority to override that decision and order that an inmate be sent outside the prison for the procedure. App. 656 (Dep. p. 57). The Department simply does not interfere with a physician’s professional judgment that a procedure is medically necessary. App. 656 (Dep. p. 57), 695 (Dep. p. 95).
All pregnant inmates are incarcerated at WERDCC. App. 647(Dep. p. 22), 679 (Dep. p. 32). The Department provides pre-natal care to all pregnant inmates. App. 253-54, 647 (Dep. pp. 23-24), 658 (Dep. pp. 66-68), 796-97. An obstetrician is available to inmates at WERDCC two days per week; two physicians and a nurse practitioner are at the facility five days per week. App. 647 (Dep. pp. 23-24). Pregnant inmates are transported to nearby medical facilities for care needed during the pregnancy that cannot be provided at the prison. App. 658-59 (Dep. pp. 68-69, 71). Inmates at WERDCC usually travel to a hospital in the same county to give birth (App. 225-46, 661 (Dep. pp. 78, 80)), though it is not uncommon for an inmate to be released from prison before childbirth (App. 226-46). After a vaginal birth, the inmate stays in the hospital for only twenty-four hours. App. 661 (Dep. p. 77). Second trimester abortions require a two-day procedure and two separate trips to the RHS clinic. App. 18a-18b, 741-42 (Dep. pp. 52-53). The closest facility that provides abortions to inmates is in St. Louis. App. 284.
13

Any instance where an inmate leaves the grounds of a correctional facility is defined as an “outcount.” App. 355. Most outcounts from WERDCC in 2005 were for court appearances or medical care. App. 296-307. Other reasons for outcounts include work release, transfers to another corrections facility, and transport to the bus station upon an inmate’s release. App. 319-24, 749 (Dep. p. 19).
WERDCC’s transportation operating procedure listed mandatory minimum requirements for security in a variety of situations where inmates were transported outside the prison. App. 354, 370. For example, unless an inmate was a custody level five offender (the highest security rating), a single inmate on an outcount would generally be accompanied by one corrections officer. App. 368. Two officers will accompany a level five offender or a group of inmates on an outcount. App. 367-68.
WERDCC’s transportation policy allowed for additional security measures where greater precautions were warranted. App. 355, 702 (Dep. p. 122). Prior to July 2005, the Department transported inmates for non-therapeutic abortions. App. 251, 289-90. Corrections officials deemed additional security advisable for abortion outcounts. App. 702 (Dep. p. 121-22), 754 (Dep. p. 40). Usually a Corrections Officer II, or sergeant, and a Corrections Officer III, or lieutenant, accompanied the inmate, regardless of her security level. App. 754 (Dep. p. 40). Regular procedures for the arrival of inmates at RHS have not been implemented; hospitals that provide
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care to WERDCC inmates, in contrast, do have protocol for handling inmates. App. 339-41, 788.
Security and safety were the primary reason for the Department’s policy change. App. 681 (Dep. p. 39). Whenever inmates are taken outside the prison, there is a risk of escape. App. 690 (Dep. p. 75), 788. The risk that an inmate’s friends or associates will help her attempt to escape is one of the greatest dangers to corrections officers in public settings. App. 690 (Dep. p. 75). If an inmate successfully escapes, the fugitive poses a threat to public safety as well as law enforcement. App. 690 (Dep. p. 75), 788. Escapes can give rise to hostage situations, vehicle thefts, and additional crimes. App. 690 (Dep. p. 75). The pursuit of an escaped inmate and her eventual apprehension can jeopardize the lives of innocent bystanders. App. 690 (Dep. p. 75), 788.
According to the testimony of Paula Gianino, CEO of Planned Parenthood of the St. Louis Region, Inc., in the year the Department revised the policy, approximately one hundred picketers demonstrated outside the RHS clinic every Saturday. App. 775, 777. One Saturday each month that grew to “several hundred picketers.” App. 777.
Plaintiffs asserted that by April 2006, the number of picketers on Saturdays had decreased. App. 815, 825. At her April 21, 2006, deposition, Ms. Gianino testified that on three Saturdays per month, thirty picketers position themselves outside the
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clinic; one Saturday per month these picketers are joined by the archbishop and fifty additional protestors. App. 736 (Dep. p. 29). Every Saturday and most Tuesdays two “verbally abusive” individuals are present. App. 736 (Dep. p. 29). Protestors have verbally confronted pregnant inmates and accompanying correctional officers at the RHS facility. App. 177 (Dep. p. 65).
Once a pregnancy has reached fourteen and one half weeks, RHS will only perform the abortion on a Friday. App. 18a-18b. At eighteen weeks gestation, the procedure must be performed over two separate days. App. 18a-18b. At RHS, twoday procedures are performed on Fridays and Saturdays only. App. 18a-18b. Inmates cannot stay at RHS overnight if a two-day procedure is required. App. 741-42 (Dep. pp. 52-53). Thus, if the abortion cannot be completed in one day, an additional trip must be made the following day. App. 741-42 (Dep. pp. 52-53).
On several occasions, RHS employees have found it necessary to call the police because of protestor activity outside the building. App. 735-36 (Dep. pp. 26-27, 3031). Picketers have a history of blocking the driveway when cars attempt to enter the RHS parking lot. App. 735 (Dep. p. 26). Protestors also write down vehicle license plate numbers and photograph or videotape persons entering and exiting the RHS building. App. 177 (Dep. p. 65-66), 735, 777. Picketers prop their signs so that they invade the lanes of Forest Park Avenue, posing traffic hazards. App. 736 (Dep. p.
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31). Picketers have also used megaphones and amplified Bible reading outside the RHS clinic. App. 736 (Dep. p. 31).
The parking lot gate is open throughout RHS’ hours of operation. App. 734 (Dep. pp. 21-22), 742 (Dep. p. 55). No appointment is needed to enter the RHS building. App. 734 (Dep. pp. 23-24). RHS staff have had to call the police to remove relatives from the building, as well as other individuals opposed to the abortion decisions of pregnant women. App. 735 (Dep. pp. 26-27). On at least one occasion, there was a physical altercation inside the clinic between a pregnant woman and family member. App. 735 (Dep. p. 27).
Contemporaneously with the policy change, WERDCC lost corrections officers due to state budget cuts, despite its growing inmate population. App. 677 (Dep. pp. 21, 24), 679 (Dep. p. 31), 721 (Dep. p. 39). Many corrections officers now work ten or twelve hour shifts. App. 686 (Dep. p. 57). The Department eliminated outcounts for funerals and bedside visits, which averaged three per month at WERDCC during the first half of 2005. App. 296-301, 311, 362, 721 (Dep. p. 39). Even though the Department discontinued outcounts for elective abortions, for funerals, and for bedside visits by July 2005, outcounts for medically necessary care that could not be provided at WERDCC still had to be rescheduled at times due to insufficient security and transport personnel. App. 800-801. Nine medical outcounts were rescheduled in
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September 2005, nine in January 2006, eight in July 2005, and five during August 2005. App. 800-801.
Three WERDCC inmates requested elective abortions in October 2005. App. 310, 374-77. There was also a request for an elective abortion in July 2005, as well as one other request earlier in 2005, before the change in policy. App. 285. Four inmates had abortions in 2004 and three in 2003. App. 282. Since 1998, no inmate in the Department’s custody has had a medically necessary abortion. App. 658 (Dep. p. 66). There is no evidence in the record that an abortion was ever medically necessary for any pregnancy of any inmate in the Department’s custody. App. 658 (Dep. p. 66), 754 (Dep. p. 37).
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SUMMARY OF THE ARGUMENT The Department’s policy to provide transportation and security only for medically necessary abortions is consistent with the Fourteenth Amendment because transporting inmates to distant facilities for elective abortions is fundamentally inconsistent with incarceration. The policy is also consistent with the Fourteenth Amendment because there is a direct, reasonable relationship between the policy and the Department’s legitimate penological interests in security and cost containment. The policy not to transport prisoners for elective abortions is also consistent with the right to be free from cruel and unusual punishment because elective abortions do not involve serious medical needs. It is simply contradictory to conclude that an abortion that is not medically necessary can be a serious medical need. If an abortion is medically necessary to protect the life or health of the prisoner, the Department will transport the prisoner for the procedure.
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STANDARD OF REVIEW The district court in this case granted the plaintiffs’ motion for summary judgment. The grant of summary judgment is reviewed de novo. LeGrand v. Area Resources for Community & Human Servs., 394 F.3d 1098, 1101 (8th Cir. 2005), cert. denied, 126 S. Ct. 335 (2005). Questions of constitutional law are also reviewed de novo. South Dakota v. United States Dept. of Interior, 423 F.3d 790, 797 (8th Cir. 2005), cert. denied, 2006 WL 1520764 (2006). A grant of summary judgment is proper only if there is no genuine issue of fact and the movant is entitled to judgment as a matter of law. LeGrand, 394 F.3d at 1101; see also Fed.R.Civ.P. 56(c).
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ARGUMENT I.
The policy of the Missouri Department of Corrections not to transport prisoners for non-therapeutic abortions (an application of its general policy not to transport inmates for non-medically necessary treatment) is consistent with the plaintiff class’s Fourteenth Amendment right to an abortion because the policy does not impose an undue burden on prisoners’ ability to obtain an abortion and the policy is reasonably related to the Department’s legitimate penological interests.
Many liberty interests and due process rights of prisoners may be significantly limited because they are not physically at liberty to make arrangements that would be possible for those able to travel in the community. Gibson v. Matthews, 926 F.2d 532, 535-36 (6th Cir. 1991), citing Bell v. Wolfish, 99 S. Ct. 1861 (1979). Although the right to vote is a fundamental right, Tashjian v. Republican Party of Conn., 107 S. Ct. 544, 550 (1986), a state may nevertheless bar convicted felons from voting. Richardson v. Ramirez, 94 S. Ct. 2655, 2671 (1974). The right to procreate is a fundamental right, but corrections officials may restrict that right. Goodwin v. Turner, 908 F. 2d 1395, 1398-1400 (8th Cir. 1990). Abridgment of fundamental rights due to incarceration alone is constitutionally permissible when those rights are inconsistent with the confinement.
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Neither this Court nor the United States Supreme Court has specifically addressed abortions in the prison context. The Fourteenth Amendment right to choose abortion is subject to greater limitation than fundamental rights such as voting and procreation. See Gibson, 926 F.2d at 535-36; Maher v. Roe, 97 S. Ct. 2376, 2382-83 (1977). The limited right at issue here is subject to restrictions based on the nature of imprisonment and prison officials’ important responsibilities and interests, including security, public safety, efficient operations, and containing costs. See Timm v. Gunter, 917 F.2d 1093, 1100-1101 (8th Cir. 1990), cert. denied, 111 S. Ct. 2807 (1991). It is not excluded from the general rule that prison administrators are entitled to adopt legitimate regulations and restrictions, even regulations that might impinge on constitutional rights, in order to accomplish the penal system’s legitimate goals and in furtherance of recognized penological interests. Overton v. Bazzetta, 123 S. Ct. 2162, 2166-67 (2003); Turner v. Safley, 107 S. Ct. 2254, 2262 (1987).
Prison regulations that might impinge on the constitutional rights of inmates are evaluated under Turner v. Safley, 107 S. Ct. 2254 (1987). Under Turner, the first consideration is whether the asserted constitutional right is fundamentally inconsistent with incarceration. Turner, 107 S. Ct. at 2261, 2264; Overton, 123 S. Ct. at 2168. If the right does not survive incarceration, the analysis ends there. Gerber v. Hickman, 291 F.3d 617, 620 (9th Cir. 2002). A prison regulation or policy that might otherwise impinge on an inmate’s constitutional right will survive a challenge
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if the regulation is reasonably related to legitimate penological interests. Turner v. Safley, 107 S. Ct. 2254, 2261 (1987); Goodwin, 908 F.2d 1395, 1398. The burden “is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 123 S. Ct. 2162, 2168 (2003). The right to elective abortion does not survive incarceration.
The right to choose abortion has been characterized as a right of personal privacy. Roe v. Wade, 93 S. Ct. 705, 727 (1973); Maher v. Roe, 97 S. Ct. 2376, 2381 (1977). Privacy rights are fundamentally inconsistent with incarceration. “Loss of freedom of choice and privacy are inherent incidents of confinement” in the penal system. Bell v. Wolfish, 99 S. Ct. at 1873. Prison inmates have no privacy rights in their cells. Hudson v. Palmer, 104 S. Ct. 3194, 3200 (1984). Inmates may constitutionally be subjected to visual body cavity searches. Wolfish, 93 S. Ct. at 1884-84. Male inmates may be surveilled by female prison guards while showering or using the toilet. Timm, 917 F.2d at 1101-1102.
Constitutionally protected personal privacy rights include the interest in making certain personal decisions independently, including decisions about marriage and family relationships, procreation, contraception, and child rearing. Carey v. Population Servs., 97 S. Ct. 2010, 2016 (1977). The deterrence and punishment goals of the prison system and institutional security needs nevertheless justify separating prisoners from spouses and children “and necessitate the curtailment of many parental
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rights that otherwise would be protected.” Southerland v. Thigpen, 784 F.2d 713, 716 (5th Cir. 1986). Although the Fifth Circuit had decided that the choice whether to breast-feed was constitutionally protected as an important aspect of child rearing (see Dike v. School Bd., 650 F.2d 783, 787 (5th Cir. 1981)), in Southerland the court determined that allowing an inmate to breast-feed her infant was incompatible with penal objectives. 784 F.2d at 716-17. Allowing inmates to choose to nurse their babies would undermine the state’s interest in deterring criminal behavior, interfere with maintaining institutional security, and create an additional financial burden that “would further undercut important goals of the already heavily burdened prison system.” 784 F.2d at 717.
The constitutional protection that applies to a woman’s choice whether to terminate a pregnancy is also a right that can be legitimately foreclosed completely by prison confinement. Transporting inmates outside of prison for abortions interferes with the Department’s compelling interest in security, and imposes additional costs on the Department when its resources could be used for necessary trips rather than elective procedures. App. 681 (Dep. p. 39), 689 (Dep. p. 69), 284. Safety and security concerns were the primary reason for the policy revision. App. 681 (Dep. p. 39). Protecting members of the public from harm is a related legitimate penological goal and is one of the main reasons (if not the primary reason) why
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Plaintiffs are incarcerated. See Overton, 123 S. Ct. at 133 (legitimate penological interest in protecting child visitors).
The Department’s policy promotes safety and security because it directly prevents inmates and officers from being placed in an uncontrolled, emotionally volatile situation. The RHS parking lot is readily accessible to the public, including protestors; its gates are open throughout the clinic’s hours of operation. App. 734-35 (Dep. pp. 21-24, 27), 742 (Dep. p. 55). No appointment is required to enter the RHS building. Individuals who would be barred from visiting or communicating with inmates inside prison (e.g., due to recent criminal history), could approach the inmate directly and converse with her. This, in turn, could facilitate an escape attempt or result in interference with the inmate’s custody. In a public area, as opposed to prison, corrections officers are unable to prevent those possessing contraband and concealed weapons from entering the inmate’s environment. The Department’s policy promotes safety by avoiding placing inmates in a situation where significant threats to security cannot be identified and eliminated in advance.
In significant part, the trial court based its rejection of the Department of Corrections’ new policy not to transport for non-therapeutic abortions on a Third Circuit decision involving the abortion rights of pre-trial detainees, Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). The district court’s reliance on Lanzaro was misplaced because the defendant officials
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in Lanzaro did not adopt the challenged policies for security reasons. See 834 F.2d at 335 n. 12. Moreover, in Lanzaro the policy required a pregnant inmate to obtain a court order prior to any abortion unless she was in imminent danger of death. 834 F.2d at 328, 340. The policy did not contain a health exception. Id. In Lanzaro, the jail officials were unable to demonstrate a valid, rational connection between the jail’s abortion policies and any legitimate penological interest asserted as the reason for the policies. See 834 F.2d at 335, n. 12, n. 15. Thus the first step of the Turner analysis was not satisfied. See Turner, 107 S. Ct. at 2261-62. In contrast, Missouri Department of Corrections officials have shown that here there is a strong and direct connection between their policy and the Department’s interest in providing confinement that is safe to those both inside and outside prison walls.
As discussed above, any time an inmate is transported outside the secure, controlled prison environment, there is a risk of escape or interference by third parties, posing a risk to the safety of the transporting corrections officers, the inmate herself, and innocent bystanders. The Department’s policy of not transporting inmates for elective abortions, an extension of its policy barring outcounts for elective medical procedures, reduces these risks. Although inmate abortions were relatively infrequent, any reduction in the possibility of physical harm or inmate escape is important. In Victoria W. v. Larpenter, despite the fact that plaintiff was the first inmate in the jail who had ever requested an abortion, the court recognized that
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reducing the total number of outcounts, no matter how small the reduction, promotes security. 369 F.3d 475, 486-87 (5th Cir. 2004). Reducing security risks by reducing the number of outcounts is a rational means of furthering the legitimate penological interest in prison security. See Victoria W. v. Larpenter, 205 F. Supp. 2d 580, 595 (E.D. La. 2002), aff’d, 369 F.3d 475, 486-87 (5th Cir. 2004).
While the district court stated that it would accept the Department’s security concerns as “credible” for purposes of summary judgment, the court went on to reject the evidence supporting these concerns and the professional judgment of prison officials. Thus the district court inappropriately failed to give proper deference to the professional expertise and judgment of the prison officials. The district court failed to give adequate weight to the risks of harm or violence that arise when inmates are transported outside prison to obtain abortions – risks that are significantly different from those present during routine medical care. Evidence of these risks included the testimony of the CEO of Planned Parenthood for the St. Louis Region herself. App. 734-42 (Dep. pp. 21-56), 775, 777.
Protestors not only routinely picket the RHS facility, but have a history of obstructing the clinic’s driveway, photographing or videotaping those entering and exiting the building, and writing down license plate numbers of vehicles entering RHS’ parking lot. RHS employees have had to call the police because of protestor activity outside the clinic and, on at least one occasion, a physical altercation between
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a pregnant woman and relative inside the clinic. There is a real risk that an inmate’s relatives, husband, boyfriend, or sexual partner could show up at the RHS clinic to confront her about a planned abortion.
Security problems are magnified on Saturdays, when large groups of picketers are regularly present. There was uncontroverted evidence that when the Department revised its abortion policy, crowds of at least one hundred people protested outside the RHS clinic every Saturday. App. 775, 777. “Several hundred” picketers positioned themselves outside the RHS building one Saturday each month. App. 777. While Plaintiffs asserted that the number of picketers has decreased somewhat, the security issue remains.
At eighteen weeks gestation, and in situations where two consecutive days are required for the abortion procedure, RHS will only perform the procedure on Friday and Saturday. Because inmates cannot stay at the RHS facility overnight, this requires the Department to transport the inmate to the same uncontrolled location two days in a row – the second time on a day of heightened protestor activity, increasing the burden on the corrections officers charged with providing security for the outcount.
The documented activity of protestors at the RHS clinic alone poses security risks. In addition, demonstrations could facilitate an actual escape by allowing an accomplice to blend in with protestors and approach an inmate without that proximity
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drawing particular attention or suspicion. A loud demonstration where protestors use megaphones or amplify speech could impair corrections officers’ ability to hear verbal exchanges between the inmate and an interlocutor with violent intentions. See App. 736 (Dep. p. 31). Drugs or other contraband could be given to an inmate under the guise of a sidewalk counseling effort or concealed in leaflets and educational materials.
Despite these undisputed facts, the district court erroneously found that inmates transported to facilities performing abortions “pose no greater risk than any other inmate that requires outside medical attention.” App. 626. Moreover inmates in advanced stages of pregnancy or in labor, as well as inmates with serious health problems, have greater physical limitations and pose less of an escape risk than inmates in early stages of pregnancy. See, e.g., App. 702 (Dep. p. 121). Prison officials exercising their professional judgment should be free to determine that the security risks that accompany abortion outcounts mitigate against allowing outcounts for non-medically necessary abortions. The fact that inmates are transported for necessary medical care does not detract from the Department’s legitimate security concerns.
Cost concerns, as well as safety and security, may be shown to be a compelling governmental interest in the prison setting. Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996), cert denied, 117 S. Ct. 193 (1996). The importance of the
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Department’s cost containment objective is illustrated by its policy against providing transportation for elective medical procedures generally. The Department also found it necessary to discontinue outcounts for funerals. The Department’s interest in avoiding expenses for non-medically necessary abortions is particularly compelling where a two-day procedure is required. Because inmates cannot stay at the RHS facility overnight (unlike hospitals near WERDCC at which births occur), when an abortion cannot be completed in a single day, this necessitates an extra trip to and from WERDCC, involving additional expense for the accompanying corrections officers’ time and the cost of calling in other corrections officers to replace them at the prison.
The Department’s policy was changed due to safety and security concerns, in addition to the Department’s legitimate cost containment interest. Disallowing outcounts for elective abortions eliminates occasions where an inmate is taken outside the controlled, secure prison environment, thereby reducing the risk of escape or interference by third parties and the attendant risk of injury to the inmate, corrections officers, and members of the public. There are safety risks associated with transporting inmates for abortions, and to the RHS clinic in particular, that are distinct and more problematic than the risks inherent in inmate outcounts generally. Thus, the first Turner factor, a valid, rational connection between the policy and the penological interest, is satisfied.
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The second factor in determining the reasonableness of a prison regulation is “whether there are alternative means of exercising the right that remain open to prison inmates.” Turner, 107 S. Ct. at 2262. The district court found that unless the Department provides transportation, inmates are unable to exercise “their right to choose to terminate their pregnancy.” App. 629. But even under the Department’s current policy, transportation is provided and inmates may exercise their right to choose an abortion when a doctor has determined that an abortion is medically necessary due to a threat to the mother’s life or health.
Even when an abortion is not medically necessary, other avenues of exercising the right to choose an abortion remain available to inmates. The pregnant inmates incarcerated at WERDCC all became pregnant prior to their imprisonment. An inmate may obtain an elective abortion before her term of incarceration begins. A pregnant woman awaiting trial or sentencing can post bail; even during sentencing she can request temporary release or a slight delay in her surrender date in order to avail herself of access to abortion services. In cases like this, where “other avenues remain available” to exercise an asserted right, the court should ordinarily defer to the expert judgment of corrections officials. Pell v. Procunier, 94 S. Ct. 2800, 2806 (1974); Turner, 107 S. Ct. at 2262.
A third consideration is “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of
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prison resources generally.” Turner, 107 S. Ct. at 2262. Under Turner, where an inmate’s exercise of a constitutional right adversely affects the rights and safety of correctional officers and other inmates, corrections officials’ decision to limit that right “should not be lightly set aside by the courts.” 107 S. Ct. at 2263. Prison officials have a legitimate penological interest in treating all inmates equally to the extent possible. Goodwin v. Turner, 908 F. 2d at 1400.
In ruling on the parties’ respective motions for summary judgment, the district court was required to draw all reasonable inferences in favor of the non-movant. In doing so, however, the district court was required to distinguish between evidence of disputed facts and “disputed matters of professional judgment.” Beard v. Banks, 126 S. Ct. 2572, 2578 (2006). With respect to disputed matters of professional judgment, the court’s inferences “must accord deference to the views of prison authorities.” Id.
Here, the district court gave too little deference to the professional judgment of Department officials that transporting inmates for elective abortions adversely impacted the Department’s security interests and could delay necessary medical care for other inmates. One example of this is the district court’s conclusion that providing transportation and security for elective abortions had a de minimus impact because the Department of Corrections had on occasion transported inmates for such abortions in the past. App. 631.
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The district court’s statements about the cost of transporting inmates for elective abortions illustrate that the court placed an excessively high summary judgment evidentiary burden on Defendants. App. 630. While the cost of the transport was small in comparison with the Department’s total budget, the cost and impact on prison resources were more than de minimus, especially given the lack of medical necessity of non-therapeutic abortion. Apart from the expense for the transfer itself, there was evidence of staff time expended to make security and other arrangements for the procedure. The cost of calling officers in to work to replace the corrections officers providing security for abortion outcounts, including the cost of overtime if needed to adequately staff the prison, is not insignificant.
Transporting and providing security to inmates for the purpose of obtaining nonmedically necessary abortions poses additional risks to the life and safety of the inmates and accompanying corrections officers that they would not face inside prison. Providing transportation for elective abortions also can hinder the transport of inmates for medically necessary care. There is a finite amount of staff and transport resources and expending these resources on non-medically necessary abortions can cause delays in appointments of other inmates that are medically required. App. 789. Delaying necessary medical care that cannot be provided at WERDCC will adversely impact the health interests of other inmates.
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The district court concluded that accommodating an inmate’s desire to terminate her pregnancy was less administratively burdensome than transporting inmates to a hospital to give birth. But those inmates who remain at WERDCC until they give birth are taken to a hospital in the same county. In contrast, the nearest facility providing abortions is in St. Louis. Further, in cases where birth is to be by Caesarean section or where labor is to be induced, the surgery may be scheduled well in advance of delivery. Thus, there can often be greater opportunity for long-term planning, including for staffing needs and allocation of other resources, when pregnancies are carried to term in comparison with abortions, which must take place within a limited time frame.
Finally, the plaintiff class had the burden of showing an alternative existed that fully accommodated their rights at a de minimus cost to valid penological interests. Turner, 107 S. Ct. at 2262. This is intended to be a “high standard” that is not easily met. See Overton, 123 S. Ct. at 2169. Plaintiffs failed to meet their burden.
Plaintiffs’ suggestion that eliminating the regulation barring the transport of inmates for elective abortions would be an obvious alternative does not meet the burden of demonstrating alternative means under Turner. Similarly to the plaintiffs in Overton, plaintiffs here have not suggested an actual alternative to the Department’s policy. App. 629-30. Instead, they suggested the Department’s policy
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be set aside. Arguing that a prison regulation should be eliminated is legally insufficient. See 123 S. Ct. at 2169-70.
The absence of ready alternatives is evidence that a prison regulation is reasonable. Turner, 107 S. Ct. at 2262. Even where “obvious, easy alternatives” exist, these options may be “some evidence” a regulation is unreasonable, but their existence is not conclusive on this point. Overton, 123 S. Ct. at 2169; Turner, 107 S. Ct. at 2262. The district court misapplied the law in ruling that the Department’s policy was not reasonable, but an exaggerated response. App. 631. The evidence in the record shows that requiring the Department to provide transportation and security for elective abortions would have more than a negligible effect on the goals served by its policy. Overton, 123 S. Ct. at 2170; Turner, 107 S. Ct. at 2262. The district court’s decision to invalidate the Department’s policy as to elective abortions was not legally justified.
In summary, loss of freedom of choice and personal privacy are inseparable from imprisonment and necessary to its legitimate purposes. Just as privacy in one’s living space and many essential areas of marriage and family relationships, including procreation, may be completely foreclosed for inmates, due to legitimate penological concerns, so too may be the right to abortion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (no due process right to conjugal visits); Goodwin v. Turner, 908 F.2d 1395, 1399-1400 (8th Cir. 1990); Gerber v. Hickman, 291 F.3d 617, 621-22 (9th
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Cir. 2002) (prison may prevent inmates from artificially inseminating spouses), cert. denied, 123 S. Ct. 558 (2002). Extending the right to choose abortion to prison inmates poses unique security problems, undermines legitimate penological goals of punishment and deterrence, and places significant burdens on the prison system’s strained finances and human resources.
Even if abortion rights survive incarceration, Defendants have shown that the Department’s policy not to transport inmates for elective abortions is rationally related to its legitimate penological interests, particularly the Department’s interest in security and protecting the public. The evidence shows that accommodating Plaintiffs’ asserted right to elective abortion would adversely impact safety and security, other inmates’ access to needed medical care, and resource allocation. Finally, the plaintiff class failed to propose any alternative that would fully accommodate elective abortion at a de minimus cost to the Department’s valid penological interests.
Defendants were entitled to judgment as a matter of law. The decision of the district court should be reversed and remanded with directions to enter summary judgment in Defendants’ favor.
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II. The policy of the Missouri Department of Corrections not to transport prisoners for non-therapeutic abortions is consistent with the plaintiff class’s Eighth Amendment right to be free from cruel and unusual punishment because no serious medical need is involved. Plaintiffs asserted that the Department’s policy constituted deliberate indifference to inmates’ serious medical needs. App. 631. But neither the United States Supreme Court nor this Court have found elective abortion to be a serious medical need. A serious medical need is "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." Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). While pregnancy does result in the need for medical care, the Department provides such needed care to all pregnant inmates. An obstetrician is available at WERDCC two days per week; two physicians and a nurse practitioner are at the facility five days a week. App. 647 (Dep. pp. 23-24). Physicians determine whether any particular procedure or type of care is medically necessary or elective on a caseby-case basis. The Department does not interfere with a physician’s professional judgment that a procedure is medically necessary.
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Plaintiffs here challenge what they must concede are elective, medically unnecessary abortions. Such a concession is logically required. By definition, there is no medical need for a procedure that is not medically necessary. Thus, such abortions are not serious medical needs in the context of the Eighth Amendment. See Camberos, 73 F.3d at 176; see also Victoria W. v. Larpenter, 205 F. Supp. 2d 580, 600-01 (E.D. La. 2002), aff’d, 369 F.3d 475 (5th Cir. 2004). Where an abortion is medically indicated, the Department will provide transportation and security for the procedure.
The Department’s policy denying transportation for elective medical procedures, including abortion, are not incompatible with the concepts of “dignity, civilized standards, humanity and decency” and, thus, do not impose cruel and unusual punishment on Plaintiffs. Estelle v. Gamble, 97 S. Ct. 285, 290 (1976); Victoria W., 205 F. Supp. 2d at 601. The policy does not deny Plaintiffs necessary medical care and does not display deliberate indifference to the serious medical needs of pregnant inmates. Elective abortions are not serious medical needs and Department’s policy does not constitute cruel and unusual punishment. For these reasons, the district court should have concluded that Defendants were entitled to judgment as a matter of law and granted summary judgment in their favor.
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CONCLUSION In light of the foregoing, Defendants Crawford and Prudden urge this Court to reverse the district court’s entry of summary judgment against them and to remand this case to the district court with instructions to enter judgment in their favor.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Assistant Attorney General Missouri Bar No. 33848
EMILY A. DODGE Assistant Attorney General Missouri Bar No. 53914 P.O. Box 899 Jefferson City, MO 65102 Phone No. (573) 751-3321 Fax No. (573) 751-9456 ATTORNEYS FOR APPELLANTS CRAWFORD AND PRUDDEN
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CERTIFICATE OF SERVICE AND COMPLIANCE

I hereby certify that the text of the foregoing document, excluding the Summary

and Request for Oral Argument, the Table of Contents, the Table of Authorities, this

Certificate of Service and Compliance, and the Addendum, contains 6985 words of

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9 word processing system used and has 14-point print size, and that the diskette

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I further certify that two true and correct copies of this brief and a 3½ inch,

labeled diskette containing this brief, were mailed, postage prepaid, this 13th day of

October, 2006, to:

Thomas M. Blumenthal 165 North Meramec Ave., Sixth Floor St. Louis, MO 63105
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Assistant Attorney General

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ADDENDUM Page No.
District Court’s Order Granting Summary Judgment . . . . . . . . . . . . . . . . . . . . . A-1
41

 
 No. 06-3108 IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JANE ROE, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
LARRY CRAWFORD, Director of the Missouri Department of Corrections, and CYNTHIA PRUDDEN, Acting Superintendent, Women’s Eastern Reception, Diagnostic and Correctional Center, in their Official Capacities, Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI BRIEF OF PLAINTIFFS-APPELLEES

DIANA KASDAN SUSAN TALCOTT CAMP CHARU A. CHANDRASEKHAR ACLU Foundation 125 Broad Street, 18th Floor New York, New York 10004 212-549-2633

THOMAS M. BLUMENTHAL, MBEN 25601, EDMo 2652 165 North Meramec Ave, Sixth Fl St. Louis, MO 63105 314-727-2266
ANTHONY E. ROTHERT, MBEN 44827, EDMo 518779 JAMES G. FELAKOS, MBEN 56356, Federal Bar # JF6965 ACLU of Eastern Missouri 4557 Laclede Ave St. Louis, MO 63108 314-361-3635

Attorneys for Plaintiffs-Appellees

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT This case arises from the official policy of the Missouri Department of
Corrections (DOC or the Department) prohibiting pregnant inmates from obtaining medical care for abortion (the Policy). Abortion services are not available within any of DOC’s on-site medical facilities, and DOC will not provide pregnant inmates with off-site transportation for abortion. Thus, the Policy forces inmates to continue unwanted pregnancies against their will. As the district court held, this Policy constitutes both a violation of the Fourteenth Amendment right of incarcerated women to choose abortion, and deliberate indifference to their serious medical needs in violation of the Eighth Amendment. Accordingly, the court below granted Plaintiffs – a certified class of current and future pregnant inmates who seek access to abortion services – declaratory and injunctive relief to prevent the ongoing and irreparable deprivation of their constitutional rights. This Court should affirm.
Plaintiffs request twenty minutes for oral argument.
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TABLE OF CONTENTS
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT .......................................................... i TABLE OF CONTENTS............................................................................... ii TABLE OF AUTHORITIES ......................................................................... v JURISDICTIONAL STATEMENT .............................................................. 1 STATEMENT OF THE ISSUES................................................................... 1 STATEMENT OF THE CASE...................................................................... 1 STATEMENT OF FACTS ............................................................................ 2
Practices and Policies for Providing Transports for Medical Care ..................................................................... 2 Transports for Pregnancy-Related Care.................................................... 4 The Origins and Substance of the Policy.................................................. 7 The Policy’s Impact on the Medical Needs of Pregnant Inmates ..................................................................... 10 The Policy’s Impact on Plaintiff Jane Roe ............................................. 13 SUMMARY OF THE ARGUMENT .......................................................... 14 STANDARD OF REVIEW ......................................................................... 16 ARGUMENT ............................................................................................... 17 I. The Court Should Affirm the District Court’s
Holding That the Policy Violates Plaintiffs’ Fourteenth Amendment Right to Choose Abortion ..................... 17
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A. Pregnant Inmates’ Right to Choose Abortion Is Constitutionally Protected ................................................ 17
B. The Policy Cannot Withstand Constitutional Scrutiny Under Turner.......................................................... 22
1. The Turner Standard ..................................................... 23
2. The District Court Correctly Held the Policy Fails the First Turner Prong......................... 24
a) The Policy “Is Not Related to Any Perceived Security Risk” That the Department Proffered in the Summary Judgment Proceedings Below ............................................. 27
i. The fact that risks are inherent in all outcounts cannot justify the Policy........................... 28
ii. Neither the presence of picketers, nor any other circumstance allegedly particular to abortion outcounts, justify the Policy ..................... 30
b) The Department’s Newly Proffered Hypotheticals Have No Record Support and Are Irrelevant ............................................... 34
3. The Remaining Turner Factors Weigh in Plaintiffs’ Favor ............................................ 37
a) Plaintiffs Have No Alternative Means to Exercise Their Right ........................... 37
b) Accomodating the Right Has No Ripple Effect on Others or on Prison Resources............................................ 39
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c) A Ready and Workable Alternative to the Policy Is Available.................................... 41
4. Similar Decisions From Other Courts Support Affirmance ...................................................... 43
II. The District Court Correctly Held That the Policy Constitutes Deliberate Indifference to Pregnant Inmates’ Serious Medical Needs .................................................. 47 A. Under Relevant Eighth Amendment Jurisprudence, an Inmate Who Decides to Terminate Her Pregnancy Has a Serious Medical Need............................... 48 B. Undisputed Evidence Demonstrates That Plaintiffs Have a Serious Medical Need............................................... 53
CONCLUSION............................................................................................ 56 CERTIFICATE OF SERVICE AND COMPLIANCE ............................... 57 ADDENDUM .............................................................................................. 58
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TABLE OF AUTHORITIES Cases Bell v. Wolfish, 441 U.S. 520 (1979) .......................................................................18 Bellotti v. Baird, 443 U.S. 622 (1979) ............................................................... 48-49 Board v. Farnham, 394 F.3d 469 (7th Cir. 2005)....................................................52 Brandenburg v. Ohio, 395 U.S. 444 (1969).............................................................34 Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991) ............................................. 21, 45 Canada v. Electric Co., 135 F.3d 1211 (8th Cir. 1997) ..........................................36 Continental Cas. Co. v. Advance Terrazzo & Tile Co.,
462 F.3d 1002 (8th Cir. 2006)...............................................................................16 Delker v. Maass, 843 F. Supp. 1390 (D. Or. 1994) .................................................51 Doe v. Arpaio, No. 2004-009286, 2005 WL 2173988
(Ariz. Super. Ct. Aug. 25, 2005) .................................................................... 21, 22 Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999) ................................ 21, 22, 50 Ellis v. Butler, 890 F.2d 1001 (8th Cir. 1999) .........................................................52 Estelle v. Gamble, 429 U.S. 97 (1976) ............................................................ passim Forest Prods. Indus., Inc. v. ConAgra Foods, Inc.,
460 F.3d 1000 (8th Cir. 2006)...............................................................................16 Garrett v. Elko,
No. 95-7939, 1997 WL 457667 (4th Cir. Aug. 12, 1997).....................................51 Gerber v. Hamilton, 291 F.3d 617 (9th Cir. 2002)..................................................20 Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991) .......................................... 45, 50
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Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996) .................................................27 Hartsfield v. Colburn, 371 F.3d 454 (8th Cir. 2004)........................................ 52, 55 Hill v. McKinley, 311 F.3d 899 (8th Cir. 2002).......................................................18 Hudson v. Palmer, 486 U.S. 517 (1984)..................................................................18 Jasperson v. Purolator Courier Corp., 765 F.2d 736 (8th Cir. 1985) ....................28 Johnson v. Bowers, 884 F.2d 1053 (8th Cir. 1989) .......................................... 15, 51 Johnson v. California, 543 U.S. 499 (2005)............................................... 17, 20, 50 Krenik v. County of Le Sueur, 47 F.3d 953 (8th Cir. 1995) ....................................16 Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001) ......................................................34 Love v. Reed, 216 F.3d 682 (8th Cir. 2000)...................................................... 37, 42 Monmouth County Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326 (3d Cir. 1987) .......................................................................... passim O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .................................... 17, 23, 26 Overton v. Bazzetta, 539 U.S. 126 (2003) ........................................................ 19, 20 Planned Parenthood v. Casey, 505 U.S. 833 (1992)............................ 14, 20, 50, 52 Procunier v. Martinez, 416 U.S. 396 (1974) ...........................................................17 Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993) ...................................................... 24, 47 Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988)......................................................47 Reprod. Health Serv. v. Webster, 851 F.2d 1071 (8th Cir. 1988) .................... 21, 28 Robinson v. Hager, 292 F.3d 560 (8th Cir. 2002) ...................................................48
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Roe v. Crawford, 396 F. Supp. 2d 1041 (W.D. Mo. 2005) stay denied, No. 05-3790 (8th Cir. Oct. 14, 2005), 126 S. Ct. 477 (2005) .............2
Roe v. Crawford, 439 F. Supp. 2d 942 (W.D. Mo. 2006) .........................................1 Roe v. Leis,
No. C-1-00-651, 2001 WL 1842459 (S.D. Ohio Jan. 10, 2001).................... 21, 22 Roe v. Wade, 410 U.S. 113 (1973)...........................................................................49 Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990) ........................................ passim Southerland v. Thigpen, 784 F.2d 713 (5th Cir. 1986)............................................20 Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990) ............................................... 18, 26 Turner v. Safley, 482 U.S. 78 (1987) ............................................................... passim Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004) ....................... 21, 22, 45, 50 Warren v. Fanning, 950 F.2d 1370 (8th Cir. 1991).................................................48 Washington v. Harper, 494 U.S. 210 (1990) ...........................................................18 Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997) ........................................ 24, 42 Statutes and Regulations 10A N.J. Admin. Code, § 31-13.10(a)(3), (5) .........................................................43 20 Ill. Admin. Code § 415.30(j)...............................................................................43 28 C.F.R. § 551.23 ...................................................................................................43 Cal. Penal Code. § 3405...........................................................................................43 Other Authorities Bureau of Prisons Policy 6070.5..............................................................................43
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Minn. Dep’t of Corrections Division Directives 500.010, 500.108 (Nov. 7, 2006).........................................................43
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JURISDICTIONAL STATEMENT
Plaintiffs agree with the Department’s jurisdictional statement.
STATEMENT OF THE ISSUES
I.
Whether the Policy, which bans abortion for inmates, violates Plaintiffs’ Fourteenth Amendment rights.
Planned Parenthood v. Casey, 505 U.S. 833 (1992) Turner v. Safley, 482 U.S. 78 (1987) Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990) Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987)
U.S. Const. amend. XIV.
II.
Whether the Policy, which bans abortion for inmates, violates the Eighth Amendment by denying medical care for Plaintiffs’ serious medical needs.
Estelle v. Gamble, 429 U.S. 97 (1976) Johnson v. Bowers, 884 F.2d 1053 (8th Cir. 1989) Monmouth, 834 F.2d 326
U.S. Const. amend. VIII.
STATEMENT OF THE CASE
Plaintiffs supplement the Department’s statement of the case only to include
case history omitted therein. Prior to granting Plaintiffs summary judgment, Roe v.
Crawford, 439 F. Supp. 2d 942 (W.D. Mo. 2006), the district court issued a
preliminary injunction enjoining the Policy. The Department’s multiple attempts
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to stay that injunction – and to deny Plaintiff Jane Roe access to abortion services notwithstanding that injunction – were rejected by the district court, this Court, and the Supreme 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), 126 S. Ct. 477 (2005).
STATEMENT OF FACTS The challenged Policy prohibits pregnant inmates from obtaining medical care for abortion, thus forcing them to continue pregnancies against their will. The undisputed material facts establish that this Policy leaves Plaintiffs with no alternative means to exercise their right to abortion; is not related to a legitimate penological interest in security; does not conserve resources; and deprives Plaintiffs of care for a serious medical need. Practices and Policies for Providing Transports for Medical Care DOC regularly transports inmates off institutional grounds for a variety of purposes, including, “among other things, court appointments, medical appointments, work release, intra-institution transfers, and occasionally to take the State Board of Cosmetology examination.” Such transports are called “outcounts.” J.A. 615-16 (Dist. Ct. Order Granting Pls’ Mot. for SJ) (Order). At the Women’s Eastern Reception Diagnostic and Correctional Center (WERDCC), where all pregnant inmates are housed, the Department “handles approximately eight
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outcounts per day, seven days a week, averaging 197 outcounts per month in
2005.” J.A. 616 (Order).
Of those almost 200 monthly outcounts, over 75% are “medical outcounts”:
transports off-site for a wide variety of medical services for inmates, including
preventive care and specialty referrals. J.A. 63, 147 (SOF ¶¶ 51-53, Cornell Dep.
19:22-20:6).1 At WERDCC, Correctional Medical Services and the Office of the
Chief of Custody regularly coordinate arrangements for these numerous medical
outcounts:
DOC contracts with Correctional Medical Services (“CMS”) for the provision of medical care to inmates in the Department’s custody. CMS provides a range of health services on-site at WERDCC . . . . When an inmate requires specialized medical, mental health, or dental services beyond the capability of the on-site health care system, CMS personnel refer her to an off-site specialist or facility. For all off-site medical appointments, CMS personnel schedule the appointment and notify the office of the Chief of Custody of the date and time. The office of the Chief of Custody is responsible for making the necessary security and transport arrangements. Of the roughly 200 outcounts that the Chief of Custody handles per month, about 155 are for medical care. Given the volume of medical outcounts, it is not uncommon for the office [of] the Chief
1 All cites to the Joint Appendix (J.A. ) are to the findings of the district court and/or directly to undisputed material facts that were relied upon, and included with, the cross-motions for summary judgment. Cites to “SOF” refer to the Plaintiffs’ Statement of Uncontroverted Material Facts, which in turn contain cites to underlying record support. Because each one of Plaintiffs’ SOF often cites to numerous sources of supporting record evidence, for the Court’s convenience, Plaintiffs have generally included only one or two examples of the primary cites that support each SOF. Plaintiffs cite no deposition testimony or other documents that were not specifically referenced and cited in the summary judgment motions and the parties’ statements of uncontroverted material facts.
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of Custody to reschedule or rearrange appointments depending on staff and vehicle availability. J.A. 616, 64-65, 284-85, 177 (Order, SOF ¶¶ 59-60, 63, 65, Cornell Memo, July 7, 2005, Prudden Dep. 67:1-14). Except for the challenged Policy, there is no other policy that identifies particular medical procedures as “elective,” or that prohibits offsite transports for particular types of medical care. J.A. 64, 207-08 (SOF ¶58, Conley Dep. 32:25-33:8). CMS physicians have final authority to refer an inmate for any type of off-site medical care, even if CMS characterizes it as “elective,” and the Department provides any transport necessary for the inmate to obtain that care. J.A. 64, 214 (SOF ¶¶ 54, 56, 60, Conley Dep. 57:5-22).
Transports for Pregnancy-Related Care These numerous medical referrals and outcounts regularly include those for pregnancy-related care. “In any given month, there are anywhere from 35 to 50 pregnant inmates at WERDCC.” J.A. 616, 65, 225-48 (Order, SOF ¶ 69, OB List 2005). CMS provides basic prenatal care to these inmates on-site, but the Department provides off-site transport for specialized prenatal care, care for high-risk pregnancies, and treatment for pregnancy-related complications. J.A. 616, 275 (Order, Defs.’ Ans. To Pls.’
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Interrog. 15). In addition, all inmates who carry to term are transported off-
site for labor and delivery:
In 2005, Defendants transported approximately 91 inmates off-site for labor and delivery. An inmate in labor is transported to the hospital without any restraints, regardless of her custody level. Two officers typically provide the transport and one officer will remain with the inmate at the hospital throughout the duration of her stay, anywhere from one to three days, on average. Defendants pay for all the costs associated with prenatal care and childbirth, including transportation and security.
J.A. 616-17, 67-68, 311, 322-24, 150 (Order, SOF ¶¶ 80-84, 90-93, Policy IS20-
4.2, Cornell Dep. 29:2-21, 31:19-32:10).2 Thus, CMS physicians regularly make
off-site referrals for inmates with ongoing pregnancies, for which DOC provides
all transports. However, if a woman decides she wishes to end her pregnancy, as a
rule, CMS will not refer her for abortion care. J.A. 73, 215-16 (SOF ¶¶ 120-123,
Conley Dep 63:21-64:2, 64:23-65:10). Accordingly, CMS will not coordinate with
the Chief of Custody to arrange an abortion transport.
Although CMS was not involved in arranging abortions, from 1998 until the
Policy went into effect in 2005, “Defendants transported seven inmates for
abortion services, each of which was considered elective by Defendants.” J.A. 617
2 DOC asserts that inmates “are taken to a hospital in the same county” to give birth. Brief of Appellants 34 (DOC Br.). While this is true for most births, it is undisputed that inmates are sometimes transported outside Audrain County, where WERDCC is located, to Columbia, Missouri, for pregnancy care, including childbirth, and are regularly transported as far as Jefferson City for other medical services. J.A. 65, 67, 148, 219 (SOF ¶¶ 64, 79, Cornell Dep. 21:1-12, Conley Dep. 78:9-79:9).
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(Order). These transports were typically to Reproductive Health Services (RHS) in St. Louis, Missouri. Id. No abortion outcount took more than one day – each transport required only a single eight-hour shift. J.A. 617, 284 (Order, Cornell Memo July 7, 2005). Typically two female officers accompanied the inmate to RHS. Inmates arrived with wrist restraints, but were not restrained during the procedure. J.A. 617 (Order). Further, inmates were closely monitored by DOC guards during their entire stay at RHS, completely separated from other clients, and at the option of the Department could enter through a separate entrance not available to the public. J.A. 76, 40-41, 849, 740 (SOF ¶¶ 142-46, Defs.’ Ans. ¶27, Defs.’ Resp. SOF ¶ 142, Gianino Dep. 45:5-18). The Department provided the necessary security, transportation resources, and arrangements, but the inmate paid all medical costs. J.A. 617 (Order).
For each abortion outcount, WERDCC staff followed the same procedures. Although DOC never sought to implement a written protocol or contract, it consistently followed the standard arrangements in place with RHS regarding the receipt of inmates and the posting of officers at the clinic. J.A. 76-77, 153 (SOF ¶¶ 140, 149, Cornell Dep. 41:21-42:4; 44:7-9). This is not uncommon. Arranging the logistics, resources, and security for medical outcounts is a standard component of daily prison management at WERDCC. J.A. 64-65, 146, 148 (SOF ¶¶ 60-64, Cornell Dep. 16:13-18, 23:7-21). And the Department similarly relies on informal
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arrangements for medical outcounts to other off-site facilities. J.A. 65, 76, 172-73 (SOF ¶¶ 66, 141, Prudden Dep. 39:22-41:5). The infrequent abortion outcounts were arranged within the parameters of this system. J.A. 77, 283, 284-85 (SOF ¶ 149, Prudden Memo July 6, 2005, Cornell Memo July 7, 2006).
Moreover, “no security problems were reported during any abortion-related outcount.” J.A. 617 (Order). Likewise, these outcounts had no meaningful, let alone significant, impact on other inmates or administrative resources. Transports for abortion never interfered with another inmate’s ability to timely receive medical care. Id.; J.A. 77, 134-35, 277-78 (SOF ¶ 151, Long Dep. 109:13-19; 119:2-10, Defs.’ Ans. To Pls.’ Interrog. 20). The administrative and financial costs to the Department were equivalent to those associated with medical transports generally. J.A. 78, 173 (SOF ¶ 157, Prudden Dep. 41:6-14). And because abortion outcounts are so infrequent, the total associated costs constitute only a “minimal” component of the Department’s budget. J.A. 617, 78, 284-85 (Order, SOF ¶¶ 154156, Cornell Memo, July 7, 2005).
The Origins and Substance of the Policy In early 2005, Missouri legislators complained about DOC’s provision of transports for abortion, and pressured the Department to cut costs. “Hearings were held on the Department’s budget and Defendants were questioned by the Missouri House and Senate about the practice of transporting inmates for abortion services.
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Defendants were contacted by the legislative branch, both via letter and in person, regarding concerns over transports for elective abortions.” J.A. 617-18 (Order); see also J.A. 79, 295 (SOF ¶¶ 163-66, Sen. Gross Letter Jan. 18, 2005). Although the issue thus first arose early in the year, no policy changes occurred until July 2005. J.A. 617-18 (Order).
On or about July 6, 2005, inmate JT requested an abortion. Consistent with past practice, Defendant Cynthia Prudden, then Acting Superintendent of WERDCC, approved the request and an abortion appointment was scheduled for July 8, at RHS. However, this time the procedure was postponed pending approval at the “executive level.” J.A. 618 (Order):
At the request of Steve Long, Acting Director of the Division of Adult Institution, Patricia Cornell, Assistant Director of the Division of Adult Institution, prepared a memorandum reviewing the impact abortion transports had on DOC’s costs and resources. Comparative costs to DOC in providing inmates with pregnancy related care, including transporting pregnant inmates for prenatal care and labor and delivery were not considered at this time, or thereafter. On July 19, 2005, Long informed Prudden, via memorandum, that JT’s request was denied because the procedure was elective. Id. The new Policy that “[n]o further outcounts for elective abortions will be authorized,” was announced in the July 19 memorandum and reiterated in a July 20 memorandum issued to the “Compliance Unit.” J.A. 288-89 (Long Memos, July 19 and 20, 2005). In August 2005, DOC’s Institutional Services Pregnancy
8

Counseling Policy was revised to reflect the new Policy. J.A. 249-50, 290 (IS Policy 11-58, Scott Memo, August 4, 2005).
The new Policy was approved by Defendant Larry Crawford, Director of DOC, in consultation with Steven Long and DOC General Counsel Daniel Gibson. J.A. 81, 112 (SOF ¶ 179, Crawford Dep. 60:2-6). According to Defendant Crawford, the Policy was implemented because of concerns over “security, staff, money and a statute that clearly was not encouraging and may actually be saying that it was unlawful for a nonmedical [sic] purpose.” J.A. 619, 81, 109 (Order, SOF ¶ 180, Crawford Dep. 41:20-22). The July 19 memorandum references this same combination of factors. J.A. 288 (Long Memo, July 19, 2005). However, other than listing “security,” as one of several reasons for the Policy, DOC officials admit that they did not look into any specific security risks related to abortion outcounts, and there is no documentation that any specific security concerns were raised during the policymaking process. J.A. 82, 155, 110, 284-85 (SOF ¶¶ 18385, Crawford Dep. 47:4-8, Cornell Memo July 7, 2005).
There are no exceptions to the Policy. Every abortion is considered “elective” unless a CMS physician determines it is “indicated due to threat to the mother’s life or health” and that decision is “approved by the Medical Director in consultation with the Regional Medical Director.” J.A. 619, 249 (Order, IS Policy
9

11-58, 2005). CMS has never granted such approval upon an inmate’s request for an abortion. J.A. 216 (Conley Dep. 66:9-22).
The Policy’s Impact on the Medical Needs of Pregnant Inmates As a result of the Policy, pregnant inmates who do not want to carry to term have no way to obtain medical care necessary to terminate their pregnancies. The uncontested expert opinion of Robert Sokol, M.D., a board-certified obstetriciangynecologist, establishes that as a result, the Department prevents a pregnant inmate “from obtaining a type of pregnancy-related medical care that can safely reduce, by a substantial degree, the risks to her health and life entailed in continuing the pregnancy and in childbirth.” J.A. 425 (Expert Report of Robert Sokol, M.D. ¶ 6) (Sokol Rep.). 3 The health implications of forcing a woman to continue an unwanted pregnancy are serious, and often permanent. “Pregnancy is a time during which a woman faces increased risks for both morbidity (serious medical complications) and mortality (death).” J.A. 423 (Sokol Rep. ¶ 1). In addition, because “[p]rior to incarceration, many female inmates have unhealthy lifestyles including a history of
3 Plaintiffs’ expert Dr. Sokol also has a subspecialty certification in maternalfetal medicine. He is currently Distinguished Professor of Obstetrics and Gynecology at Wayne State University School of Medicine in Michigan and Director of the C.S. Mott Center for Human Growth and Development. He has over thirty years experience in the field, and has published extensively. J.A. 423573 (Sokol Rep. & CV). The Department neither contested the medical facts in Dr. Sokol’s Report, nor offered its own expert.
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[using] tobacco, alcohol, and other drugs extensively, and lack of prenatal care,” many can be classified as having high-risk pregnancies. This is true of inmates at WERDCC. J.A. 71, 223, 259-60 (SOF ¶ 107, Conley Dep. 59:10-60:4; 102:14103:17, National Commission on Correctional Health Care (NCCHC) Guideline PG-07). Also, women who experience complications during pregnancy are highrisk and will need additional medical treatment. J.A. 424 (Sokol Rep. ¶ 3). These complications include, for example, miscarriage, preterm labor, and certain pregnancy-induced diseases, such as gestational diabetes, hypertension, and preeclampsia. Id.
For women who decide to continue their pregnancies, the type and frequency of needed medical care will vary with each individual. At a minimum, however, pregnant women will need prenatal care throughout pregnancy, more care “later in the pregnancy and for high-risk pregnancies,” and medical care during labor and delivery as well as post-delivery. Id. “A woman who wants to terminate her pregnancy will need to see a physician for a medical or surgical procedure to induce abortion.” Id. For her, the “risks of death and serious medical complications from induced abortion are substantially less than are the risks of death and serious medical complications from carrying a pregnancy through childbirth.” J.A. 424 (Sokol Rep. ¶ 4). For example, “a woman is at least ten times more likely to die from continuing a pregnancy through childbirth than
11

from induced abortion.” Id. This means that induced abortion is “far safer [not only] because the risk of death or complications from the abortion procedure is extremely low, but also because once the pregnancy ends the complications and risks related to ongoing pregnancy and childbirth are necessarily eliminated.” Id.4
Thus, a pregnant woman “will need to see a medical provider for a range of medical care, whether she plans to continue her pregnancy through childbirth or to end her pregnancy through induced abortion.” J.A. 423 (Sokol Rep. ¶ 1). Accordingly, the NCCHC Guideline on Pregnancy Counseling recommends that “[p]regnant inmates [be] given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy, whether they elect to keep the child, use adoption services, or have an abortion,” and that “pregnant inmates receive services as they would in the community.” J.A. 261-62, 250 (NCCHC Guideline P-G-10, IS Policy 11-58 (referencing P-G-10)). As part of its contract with DOC, CMS is NCCHC-certified and expected to adhere to NCCHC guidelines. J.A. 62-63, 211-12 (SOF ¶¶ 43-46, Conley Dep. 48:10-12, 50:7-10).
4 The risks associated with abortion, however, increase as gestation advances. While “abortion is significantly safer than continuing pregnancy through childbirth . . . [i]t is safest to perform an abortion as early in the pregnancy as possible.” Delaying the procedure, particularly into the second trimester, “substantially increases the risks . . . to the woman’s health and life.” J.A. 424 (Sokol Rep. ¶ 5).
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The Policy’s Impact on Plaintiff Jane Roe Jane Roe was initially admitted to WERDCC on January 24, 2005, on a drug charge. She was paroled on May 24, 2005, but was re-arrested in California, in July, for a probation violation. She first learned of her pregnancy while in custody in California, where she requested access to abortion services, but before she could obtain them, she was returned to DOC’s custody on August 22, 2005. At WERDCC, Plaintiff Roe immediately and repeatedly informed medical and nonmedical staff that she wanted an abortion. Her request was finally denied on August 30, after being reviewed by both Defendant Superintendent Prudden and Assistant Division Director Cornell. Her further efforts, through counsel, to resolve her request administratively as expeditiously as possible were similarly unsuccessful. J.A. 619, 84-86 (Order, SOF ¶¶ 197-216). By October 12, 2005, her pregnancy had advanced to the second trimester. J.A. 87, 374-75 (SOF ¶¶ 224-25, Oct. 6, 2005 Memo). Fearing she would run out of time to safely and legally obtain an abortion, Plaintiff Roe sought emergency relief and initiated this class action. But for the preliminary injunction, Plaintiff Roe, and other class members,5 would have been compelled to continue their pregnancies against their will and in the custody of the State.
5 Between entry of the preliminary injunction and entry of final relief, Plaintiffs learned of three additional class members. J.A. 88, 309, 376-77, 831-33 (SOF ¶ 231, Oct 18 Memo, Oct. 21 Memo, T.K. Aff. attached to Pls.’ Supp. SOF).
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SUMMARY OF THE ARGUMENT The challenged Policy – which prohibits inmates from obtaining abortion care – is unconstitutional on two independent grounds: It violates a woman’s Fourteenth Amendment right to choose to terminate her pregnancy, Planned Parenthood v. Casey, 505 U.S. 833 (1992), and, in violation of the Eighth Amendment, constitutes deliberate indifference to pregnant inmates’ serious medical needs, Estelle v. Gamble, 429 U.S. 97 (1976). Prison walls draw no iron curtain between inmates and the Constitution: Prison administrators are constitutionally obligated to accommodate inmates’ rights where doing so will not undermine legitimate penological goals. See Turner v. Safley, 482 U.S. 78 (1987). Disregarding this principle, the Department argues that women absolutely lose their right to decide whether or not to continue a pregnancy upon imprisonment. To the contrary, this completely personal and private decision is not inconsistent with the purposes of incarceration, and is thus not a right necessarily lost to inmates. Id. Nor, as the Department alternatively argues, is the Policy reasonably related to security. The Policy stands in stark contrast to the Department’s practice of providing medical care and transports for all other pregnancy-related needs (and for a wide variety of other medical needs). Off-site transports for abortion have no greater impact on prison security, administration, or costs, than these other transports. And the security and
14

administrative burdens identified by the Department range from de minimis to purely conjectural. Thus, as a matter of law, prohibiting the infrequent transports for abortion is not reasonably related to legitimate penological goals. Id.; Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987).
Additionally, withholding abortion care forces on pregnant inmates the permanent and irreversible consequences – medical, physical, and emotional – of the increased risks to their health and lives inherent in continuing a pregnancy and in childbirth. The Department’s characterization of the decision to terminate a pregnancy (as opposed to the decision to continue a pregnancy) as “elective” is irrelevant as a matter of law, Johnson v. Bowers, 884 F.2d 1053 (8th Cir. 1989), and cannot overcome the undisputed medical evidence that access to abortion is necessary to address a serious medical need. Indeed, the Department does not even offer a medically-based reason for denying this component of pregnancy-related care. Thus, the Policy constitutes deliberate indifference to Plaintiffs’ serious medical needs. Estelle, 429 U.S. 97; Monmouth 834 F.2d 326.
For these reasons, the district court correctly held that as a matter of law and undisputed fact, Plaintiffs are entitled to summary judgment on both their constitutional claims. This Court should affirm.
15

STANDARD OF REVIEW This Court reviews a district court’s grant of summary judgment de novo. Forest Prods. Indus., Inc. v. ConAgra Foods, Inc., 460 F.3d 1000, 1002 (8th Cir. 2006). Summary judgment is proper “when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Continental Cas. Co. v. Advance Terrazzo & Tile Co., 462 F.3d 1002, 1007 (8th Cir. 2006) (citation and internal quotation marks omitted). Once the moving party has carried its initial burden of demonstrating the absence of material facts, the opposing party may not “rest on mere allegations or denials but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.” Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (internal quotation marks omitted).6
6 In seeking reversal, the Department does not suggest there exist “specific facts which create a genuine issue for trial.” As evidenced by the cross-motions, all parties agree this case is properly resolved as a matter of law on the undisputed material facts developed below. Based on that record, there is no basis for reversing the judgment below and granting summary judgment in the Department’s favor – the only relief it seeks on appeal.
16

ARGUMENT
I. The Court Should Affirm the District Court’s Holding That the Policy Violates Plaintiffs’ Fourteenth Amendment Right to Choose Abortion.
A. Pregnant Inmates’ Right to Choose Abortion Is Constitutionally Protected.
There is no question that certain individual freedoms and rights are properly
limited as a result of incarceration. Yet it is likewise beyond question that inmates
retain many constitutional protections, including protection of due process and
privacy rights.
As the Supreme Court emphasized in Turner:
[F]ederal courts must take cognizance of the valid constitutional claims of prison inmates. Prison walls do not form a barrier separating prison inmates from the protections of the Constitution. . . . Because prisoners retain these rights, “[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.”
Turner, 482 U.S. at 84 (quoting Procunier v. Martinez, 416 U.S. 396, 405-06
(1974)) (internal citations omitted); see also Johnson v. California, 543 U.S. 499,
509-10 (2005) (citing Court decisions considering various constitutional rights in
prison context); O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(“[C]onvicted prisoners do not forfeit all constitutional protections by reason of
their conviction.” (internal quotation marks omitted)). Accordingly, the Court has
recognized that inmates retain substantive due process rights such as the right to
marry, Turner, 482 U.S. at 96, and the right to refuse unwanted medical treatment,
17

Washington v. Harper, 494 U.S. 210, 221-22 (1990). Likewise, and consistent
with Supreme Court holdings, this Court has held unconstitutional security
protocols that are unreasonably invasive of inmates’ personal privacy and bodily
integrity. Hill v. McKinley, 311 F.3d 899, 903 (8th Cir. 2002) (“[W]e hold that
[plaintiff’s] Fourth Amendment rights were violated when the defendants allowed
her to remain completely [naked and] exposed . . . after the threat to security and
safety had passed.”); see also Bell v. Wolfish, 441 U.S. 520, 558-60 (1979)
(subjecting body cavity searches to constitutional review); Timm v. Gunter, 917
F.2d 1093, 1099-1102 (8th Cir. 1990) (subjecting bodily surveillance and pat-down searches to constitutional review).7
In contrast, there are very few instances where a right, or particular aspects
of a right, are so fundamentally inconsistent with incarceration that they are
automatically and completely lost upon imprisonment. One such example is the
liberty of movement and travel that is virtually unfettered in the free world, but that
would be wholly at odds with confinement. But there are few other rights that are
7 The Department fails to recognize that this aspect of bodily privacy is qualitatively different from the right against unreasonable searches of one’s home or property. In Hudson v. Palmer, 486 U.S. 517 (1984), the Court held that the normally reasonable expectation of living in a home free of observation and search is necessarily lost in the context of a prison cell. But as Bell and Hill, see supra, recognize, inmates may still reasonably expect privacy from searches that unduly invade bodily autonomy and integrity. For this reason, the Department’s reliance on Hudson fails, as does its mischaracterization of Bell and Timm as demonstrating that prisoners lose all privacy rights. DOC Br. 23.
18

completely extinguished. Indeed, even with respect to freedom of association – which “is among the rights least compatible with incarceration[’s]” goals of confinement and isolation – the Court has refused to hold that “any right to intimate association is altogether terminated by incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003).
Despite this clear precedent, the Department asserts that the Policy is subject to no constitutional scrutiny whatsoever because “[p]rivacy rights are fundamentally inconsistent with incarceration” and thus “the right to elective abortion does not survive incarceration.” Brief of Appellants 23 (DOC Br.).8 The Department’s belief that the right is necessarily lost as a condition of punishment and incarceration conflicts directly with Turner and its progeny. For many of the same reasons that the right to marry, the right to refuse medical treatment, and the right to be free from unreasonable invasions of bodily privacy – all rights grounded in substantive due process and privacy – survive incarceration, so does a woman’s right to decide to terminate her pregnancy. It is not a right grounded in the liberty
8 Though less than clear, the Department seems to fold this proposition into its argument that its proffered security concerns justify the Policy under Turner. DOC Br. 22-24. Application of Turner, however, presumes that a claimed right survives incarceration. Regardless of whether a policy is ultimately upheld, the fact that policies restricting constitutional rights have been reviewed under Turner refutes the Department’s claim that those rights simply do not survive incarceration. DOC Br. 21-24 (citing numerous cases that applied Turner, or pre-Turner cases embodying equivalent reasonableness standards).
19

to freely associate, to have intimate contact, or other aspects of constitutional rights
that frequently conflict with penological objectives. See, e.g., Overton, 539 U.S. at
131.9 Rather, the right to terminate a pregnancy is a uniquely personal, moral, and
medical decision regarding bodily autonomy and health. Casey, 505 U.S. at 852.
As such, it does not conflict with the inherent purposes of punishment and
incarceration. See e.g., Turner, 482 U.S. at 96 (identifying aspects of right to
marriage that involve decisions about, and expressions of, personal commitment
and faith as “unaffected by the fact of confinement”); Estelle, 429 U.S. at 103
(holding denial of medical care serves no “penological purpose”).10
9 For this reason, the Department’s reliance on cases like Gerber v. Hamilton, 291 F.3d 617 (9th Cir. 2002), and Southerland v. Thigpen, 784 F.2d 713 (5th Cir. 1986), DOC Br. 22-24, is wholly misplaced. The rights at issue there – the right to procreate and the right to breastfeed – were grounded in the right of intimate association. Gerber, 219 F.3d at 621; Southerland, 784 F.2d at 715-16. The right to end a pregnancy and prevent unwanted childbirth raises no such concerns.
10 Indeed, allowing prison officials to decide for a pregnant woman whether or not she can terminate her pregnancy is never consistent with the legitimate purposes of incarceration: safety, punishment, and rehabilitation. Thus, the Policy is most properly subject to the same test applicable outside prison – the undue burden test – which it does not pass. See Johnson, 543 U.S. at 510 (“[W]e have applied Turner’s reasonable-relationship test only to rights that are inconsistent with proper incarceration.” (citations and internal quotation marks omitted)). Though the district court declined to apply the undue burden test, the appropriate application of that standard is addressed in Plaintiffs’ Memorandum of Law in Support of Motion for Summary Judgment. See J.A 574-99, at 582-85. However, to affirm the district court’s holding that the Policy fails the more deferential Turner standard, this Court need not reach the question of whether, or when, the undue burden standard applies in the prison context.
20

Thus, not surprisingly, every court to address the issue has, explicitly or
implicitly, reached the conclusion that the right to abortion survives incarceration.
See, e.g., Bryant v. Maffucci, 923 F.2d 979, 982-85 (2d Cir. 1991); Monmouth, 834
F.2d 326; Roe v. Leis, No. C-1-00-651, 2001 WL 1842459 (S.D. Ohio Jan. 10,
2001); Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999); Doe v. Arpaio, No.
2004-009286, 2005 WL 2173988 (Ariz. Super. Ct. Aug. 25, 2005); cf. Reprod.
Health Serv. v. Webster, 851 F.2d 1071, 1083-84 (8th Cir. 1988) (interpreting state
statute to avoid constitutional question of whether prohibiting transports for
abortion would violate plaintiffs’ Eighth Amendment rights by denying care for
serious medical need), rev’d on other grounds, 492 U.S. 490 (1989); Victoria W. v.
Larpenter, 369 F.3d 475 (5th Cir. 2004) (assuming without deciding that the
abortion right survives incarceration). The district court reached the same
conclusion, and properly rejected the Department’s opposite claim as “unfounded.” J.A. at 620 (Order).11
11 Equally unfounded is the argument of Amici Curiae Senators Gross and Scott in Support of Appellants (Amici Senators) based on the State’s interest in distinguishing between elective abortions and those necessary to protect a woman’s health or life. Amici Senators argue that Supreme Court precedent recognizing that distinction justifies banning inmates from obtaining elective abortions. Brief of Amici Senators at 21-23 (Senators Br.). First, whatever authority the State normally has to treat therapeutic and non-therapeutic abortions differently, it does not have the authority to ban non-therapeutic abortions previability, as the Policy does. Second, Plaintiffs’ claim is that the prison must accommodate their Fourteenth Amendment right to choose non-therapeutic
21

B. The Policy Cannot Withstand Constitutional Scrutiny Under Turner.
The district court correctly held that the Policy cannot withstand constitutional scrutiny under the deferential Turner standard. Thoroughly and thoughtfully applying Turner to the undisputed facts of this case, the district court found that the Policy was not reasonably related to legitimate penological interests. J.A. 624-31 (Order). This decision finds support in virtually every other case to consider a blanket prison policy obstructing inmates’ access to abortion. See Monmouth, 834 F.2d at 351 (applying Turner and holding jail policy obstructing access to abortions unconstitutional); Arpaio, 2005 WL 2173988, at *1 (same); Leis, 2001 WL 1842459, at *2-*4 (same); Barron, 92 F. Supp. 2d at 696 (same). But see Victoria W., 369 F.3d 475 (applying Turner and upholding policy that permitted abortion transports only if inmate obtained court authorization).12 Thus, for the reasons set forth in the district court’s opinion, and as discussed below, this Court should affirm.
abortion, not because it is the equivalent of a therapeutic abortion, but because that choice is constitutionally protected. 12 For reasons discussed infra, pp. 44-46, Victoria W. is unpersuasive on several fronts.
22

1. The Turner Standard. Under Turner, prison regulations alleged to infringe inmates’ constitutional rights are valid only if they are “reasonably related to legitimate penological interests.” 482 U.S. at 89. Valid penological interests include “deterrence of crime, rehabilitation of prisoners, and institutional security.” O’Lone, 482 U.S. at 348. To determine whether a restriction on inmates’ constitutional rights is reasonably related to such penological interests, this Court considers four factors or “prongs”: (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 minimis cost” reflects the unreasonableness of the regulation. Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990) (quoting Turner, 482 U.S. at 8991); J.A. 624 (Order) (applying same). In applying Turner, this Court has directed: A reasonableness standard is not toothless. We must make sure after an independent review of the evidence that the regulation is not an exaggerated response to prison concerns. While we may not invalidate a regulation because we can imagine a more refined one, constitutional rights should be accommodated. We cannot validate prison regulations that are clearly broader in their scope or significantly more burdensome in effect than reasonable alternatives.
23

Salaam, 905 F.2d at 1171 (citations and internal quotation marks omitted). Moreover, “[p]rison 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.” Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993) (emphasis added). Applying these standards, the district court correctly held that the Policy “is not reasonable but is an exaggerated response to prison concerns.” J.A. 631 (Order) (quoting Turner (internal quotation marks omitted)).
2. The District Court Correctly Held the Policy Fails the First Turner Prong.
Courts, including the Supreme Court and this Court, do not hesitate to reject as unreasonable policies that do not in fact relate to the asserted penal interest – even when, as here, the proferred interest is security. For example, in rejecting the marriage ban challenged in Turner, the Court concluded that despite DOC’s proffered security concern – that permitting female inmates to marry would lead to dangerous “love triangles” – it had “pointed to nothing in the record suggesting that the marriage regulation was viewed as preventing such entanglements.” Turner, 482 U.S. at 98. Similarly, this Court rejected as unreasonable a ban on racist publications that prison administrators asserted would incite violence among inmates. It found that the ban was an exaggerated response because “the publications did not counsel violence, and there is no evidence that they have ever caused disruption.” Williams v. Brimeyer, 116 F.3d 351, 354 (8th Cir. 1997); see
24

also Monmouth, 834 F.2d at 338 (holding jail abortion restriction “centers around the nature of the treatment” and “it in no way relates to the gravity of any perceived security risks”). As in Turner, Williams, and Monmouth, the evidence here shows “that Defendants’ Policy is not related to any perceived security risks,” J.A. 627 (Order), and that “the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at 89-90.
The Department argues, however, that the district court did not give enough deference to its security concerns, DOC Br. 27, and improperly declined to consider cost containment as an independent legitimate penological interest under the first Turner prong. DOC Br. 27-29. The Department is wrong on both counts. First, the Turner test is the judicial standard by which courts afford deference to the professional judgments of prison administrators. Turner, 482 U.S. at 89-90 (explaining how “reasonableness standard” ensures prison administrators, not courts, will be “primary arbiters” of prison administration). As part of that deference, institutional security is recognized as a legitimate penological concern. But whereas the Department argues that the mere identification of security considerations ends the inquiry in its favor, it is only the beginning. See Salaam, 905 F.2d at 1171 (reasoning Turner would be “toothless” if courts “deferred not only to the choices between reasonable policies made by prison officials but to
25

their justifications for the policies as well”). Meaningful Turner analysis cannot be
avoided, as the Department suggests, by simply invoking a litany of potential
security concerns and then demanding blind deference by the courts.13
Second, the district court was correct to analyze the Department’s interest
in avoiding any costs or resource expenditures on abortion outcounts under the
third Turner prong – the impact of accommodation on prison administration. The
Supreme Court and this Court have identified institutional security and inmate
rehabilitation, but never cost, as legitimate penological goals. Turner, 482 U.S. at
91-93, 97-100; O’Lone, 482 U.S. at 350-51 (holding that “institutional order and
security” and “[r]ehabilitative concerns” are legitimate penological interests);
Timm, 917 F.2d at 1099-1100, 1102 (recognizing only internal security and equal
employment opportunities as legitimate penological concerns and considering
13 Nor is the Department somehow entitled to greater deference because it now, for the first time, insists that “safety and security concerns were the primary reason for the policy revision.” DOC Br. 24 (emphasis added). This characterization misconstrues the record. The district court found, and the evidence overwhelmingly demonstrates, that security was at best one of several considerations underlying the Policy. J.A. 625, 887 (Order, Defs.’ Reply ¶13 (“security was a factor” among “additional motivating factor[s]”)). Defendant Crawford testified that these additional concerns included costs, staffing, and the potential impact of the law banning state funding for abortion. Supra p. 9. Moreover, security was given little, if any, direct consideration at the time the Policy was implemented, or thereafter. While these undisputed facts “certainly impl[y] that Defendants did not consider security implications in implementing the Policy,” the district court nonetheless drew all inferences in the Department’s favor and fully considered each of its alleged security concerns. J.A. 626 (Order).
26

financial burdens under Turner’s third prong); see also Hamilton v. Schriro, 74 F.3d 1545, 1548-49, 1557 (8th Cir. 1996).14 This is because Turner incorporates cost containment in the third step, which weighs the fiscal impact as part of the burden that accommodating the right imposes on prison resources. 482 U.S. at 90. In contrast, consideration of costs under Turner’s first step would render the third step irrelevant and subvert the Turner test: If cost containment were a legitimate penological interest, the State could deprive inmates of constitutional rights whenever doing so conserved some prison resources. Turner does not allow such a result.
a) The Policy “Is Not Related to Any Perceived Security Risk” That the Department Proffered in the Summary Judgment Proceedings Below.
After carefully considering the particular security concerns proffered by the Department – both risks that are inherent to all outcounts and risks allegedly specific to abortion outcounts – the district court concluded that in light of the undisputed material facts, the Policy fails the first Turner prong because it is not
14 Thus, the Department’s reliance on Timm and Hamilton, see DOC Br. 22, 29, is misplaced. Both cases demonstrate that cost containment is not considered under the legitimate penological interest prong. The language the Department quotes from Hamilton discussing cost concerns as a possible justification for the challenged policy was itself a quotation from the decision below; addressed application of the Religious Freedom Restoration Act; and formed no part of this Court’s Turner analysis.
27

related to security. J.A. 627 (Order).15 For the reasons discussed below, that
conclusion is correct as a matter of both law and undisputed fact.
i. The fact that risks are inherent in all outcounts cannot justify the Policy.
“Every prisoner transport raises a variety of security concerns, for the
prisoner, the guard(s), and third parties.” J.A. 626 (Order). Accordingly, the
Department has extensive policies and practices to minimize risks to inmates,
officers, and the public. Using these safeguards, the Department’s long-standing
practice of transporting inmates for abortions has been followed consistently and
safely for at least eight years. Supra pp. 5-7. Not once has any of those transports
harmed staff or inmates, or undermined institutional security. Supra p. 7; J.A. 626-
27 (Order). It is undisputed: the Department has always accommodated inmates’
15 On appeal, security and cost containment are the only factors DOC advances as neutral and legitimate interests under the first Turner prong. As discussed infra, the district court properly analyzed cost containment under the third prong, regarding the impact of accommodation. DOC has abandoned the other two goals it advanced below as legitimate interests. First, it now proffers the alleged concern that abortion outcounts could hypothetically interfere with other medical outcounts as relevant to the third Turner prong (impact of accommodation), as did the district court. J.A. 625, 629 (Order). Second, DOC no longer argues that the Policy is justified by a penological interest based on Missouri’s statute prohibiting the use of state funds to assist with any abortion not necessary to save a woman’s life. Thus, DOC has waived this argument. See Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740-41 (8th Cir. 1985). As it should. In Webster, this Court held that Missouri’s statutory ban on “assisting” in an abortion “does not prevent state employees from arranging for abortion procedures for inmates or from transporting and escorting inmates to abortion facilities.” 851 F.2d at 1084; J.A. 628 (Order quoting same).
28

right to abortion without detriment to prison safety and security. Moreover, the Department does not, and cannot, point to any change in circumstances over the last eight years that would heighten security risks for future abortion outcounts.
In the face of this record, the Department argues that eliminating transports for abortion is a reasonable means of minimizing general security risks – by reducing the total number of outcounts. DOC Br. 26-27. This proposition is wrong as a matter of law and fact. As a matter of law, the Department recognizes that when accommodation of a right requires outcounts, it must manage security concerns. And they regularly do so to transport prisoners to court or for medical care. J.A 861 (Defs.’ Resp. Br.). The goal of avoiding the risks inherent in outcounts generally cannot, without more, justify the Policy any more than it could justify prohibiting the transports necessary to effectuate these other constitutional rights. See Salaam, 905 F.2d at 1171 (recognizing “constitutional rights should be accommodated”); Monmouth, 834 F.2d at 341-43.
As a matter of undisputed fact (and objective logic), and even giving weight to the Department’s desire to avoid risks inherent in any outcount, the Policy does not relate to that goal. First, transports for abortions represent only a miniscule fraction of the hundreds of outcounts DOC provides each month from
29

WERDCC.16 Second, refusing to transport inmates who have chosen abortion will not eliminate or reduce the outcounts required for those same inmates to receive other pregnancy-related medical care – whether prenatal care, treatment of pregnancy-related complications (including miscarriage and preterm labor), childbirth, or some combination of these. And these other pregnancy-related outcounts are likely to be more numerous and/or of longer duration. Supra pp. 4-5; J.A. 616 (Order). Further, the Department admits that the primary security concerns when transporting prisoners are related not to the purpose of the transport, but to the individual prisoner’s risk factors, such as a history of violence. J.A. 61, 136 (SOF ¶ 37, Long Dep. 122:3-14). The Policy, however, applies irrespective of a particular inmate’s security risks, or lack thereof. J.A. 81, 127 (SOF ¶ 174, Long Dep. 61:17-20). Thus, the Policy would reduce neither the number of transports, nor transports among high-risk inmates.
ii. Neither the presence of picketers, nor any other circumstance allegedly particular to abortion outcounts, justify the Policy.
Implicitly recognizing that nothing about its actual experience with abortion outcounts justifies the Policy, the Department has invented a story of apparently insurmountable security obstacles – primarily related to the presence of nonviolent
16 For roughly eight years up to the time the Department implemented the Policy, there were only seven abortion outcounts. During that same period, at WERDCC, medical outcounts alone averaged between 100 and 200 per month. J.A. at 616-617 (Order); supra pp. 3, 5.
30

picketers on public grounds near RHS. Although this was not one of the considerations at the time the Policy was formulated and implemented, see supra p. 9, it has now become the Department’s primary justification for the Policy. DOC Br. 27-30. That justification fails. As the district court concluded: “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.” J.A. 626 (Order); see also supra p. 7.
What the evidence does show is that RHS has been able to serve its clients, including DOC inmates, in a consistent, orderly, and safe manner, despite the regular presence of picketers. Since RHS opened its facility approximately eight years ago, they have received no threats, there have been no instances of vandalism, and the picketers have caused no disruptions of business or physical altercations. J.A. 734-37, 824 (Gianino Dep. 24:23-25:16, 32:21-33:11, Pls.’ Supp. SOF ¶ 7). Indeed, the picketers that the Department is ostensibly concerned about are typically present only two days a week. J.A. 735, 825 (Gianino Dep. 28:12-19, Pls.’ Supp. SOF ¶ 8). This schedule is generally as consistent as clockwork, and both RHS and local law enforcement are well informed of any planned picketing activity. Id. Hence, the presence and movement of non-patients near RHS is subject to far more monitoring and control than at other off-site medical
31

facilities.17 Thus, the Departments’ rhetorical and inflammatory characterization
of abortion outcounts as placing staff and inmates in “an uncontrolled, emotionally
volatile situation,” DOC Br. 25, is completely contrary to the record evidence.
Likewise without support is DOC’s insistence that there is a “real risk” that
an upset family member or partner might confront an inmate while at RHS, id. at
28-29, and that inmates on an abortion outcount will be more likely than pregnant
inmates on other medical outcounts to attempt an escape. Id. at 30. During no
abortion outcount has there ever been a confrontation between a DOC inmate and
another person (family or otherwise), or an attempted escape. And, as the district
court concluded, there is not even “evidence substantiating” the Department’s
speculation about an increased risk of escape during an abortion outcount. J.A.
627 (Order).18 To the contrary, the Department substantially exaggerates these
17 For example, DOC focuses on the attempts of picketers to obstruct the RHS driveway as a special security concern. But the evidence regarding the presence of picketers – obtained from DOC’s deposition of RHS’s CEO – establishes that such attempts are infrequent, easily managed, and have never resulted in dangerous or physical altercations with RHS staff or clients. In any event, there is simply no evidence that picketers ever attempted to block the driveway during any abortion outcount. J.A. 824-25, 734-37 (Pls.’ Supp. SOF ¶¶ 6-7, Gianino Dep. 24:23-25:16, 26:6-15, 32:21-33:11).
18 Nonetheless, the Department continues to argue that pregnant inmates seeking an abortion pose a greater escape risk because they presumably have fewer physical limitations than women in advanced stages of pregnancy or persons with serious health problems. DOC Br. 29. The Department’s argument is, again, utterly counter-factual: DOC regularly transports inmates with medical needs – such as preventive dental care – that pose no physical limitations whatsoever.
32

risks. As the uncontroverted evidence establishes, WERDCC staff completely
control the scheduling and timing of medical transports and do not give inmates
advance notice of when the transport will occur, J.A. 64, 372-73 (SOF ¶ 60,
Procedure SOP11-42, 2004 Procedures 1 & 6); “inmates on abortion outcounts are
restrained both during transport and upon arrival at the facility,” J.A. 627 (Order);
and inmates on abortion outcounts may enter RHS through a separate entrance not
available to the public, do not have visitors, and are separated from other patients the entire time they are at RHS. Supra p. 6.19 In this way DOC greatly reduces, if
not eliminates, both an inmate’s ability to alert others of her upcoming abortion
outcount, and the possibility of any contact with unapproved third parties during
the outcount. The record simply does not substantiate the Department’s picture of
inmates and members of the public freely commingling at RHS.
Moreover, DOC’s own witness explained that DOC officials do not evaluate security risks by reference to the degree of disability inherent in an inmate’s medical condition. Assistant Division Director Long testified that other than an extreme emergency – such as an incapacitating heart attack – the nature of the medical transport is not relevant to the security assessment and the “elective” nature of a medical transport is not viewed as a risk factor. J.A. 82, 136 (SOF ¶ 183, Long Dep. 122:3-122:25). 19 Indeed, the risk of someone knowing of, or gaining access to, an inmate on an outcount appears to be greater when inmates give birth at the local community hospital, where they are transported without restraints, stay one or more nights, and are permitted visitors. J.A. 616-17 (Order); see also J.A. 69, 151 (SOF ¶ 94, Cornell Dep. 33:7-12).
33

Finally, it would raise serious constitutional questions if the Department could justify its refusal to transport inmates to medical facilities, or for that matter the courthouse, because people in the community registered their objections by engaging in First Amendment activity near those locations. Those picketers’ right to assemble and express their views – even if others find them inflammatory – is constitutionally protected. That is because the state may not suppress speech that, while controversial, does not incite violence or imminent lawless action. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969). But just as the Constitution protects their speech against a “heckler’s veto,” Lewis v. Wilson, 253 F.3d 1077, 1082 (8th Cir. 2001), the Constitution likewise forbids the State from effectively granting the picketers a “heckler’s veto” over inmates’ right to abortion, which would be precisely the result if the Department could use the picketers to justify the Policy.20
b) The Department’s Newly Proffered Hypotheticals Have No Record Support and Are Irrelevant.
On appeal, the Department relies on yet new examples of purely hypothetical security breaches that it considered neither when implementing the
20 This Court has specifically rejected the notion that the prison context legitimizes a third-party veto. See Salaam, 905 F.2d at 1175 (where accommodating inmates’ religious exercise requests might lead to confrontation with uncooperative inmates, court concluded, “if the rights of those who would cooperate could be sacrificed in fear of those who would cause trouble . . . , officials could ignore any individual right”).
34

Policy, nor at any time thereafter. The Department now speculates, for instance, that at RHS: “individuals . . . could approach the inmate directly and converse with her”; that the use of megaphones by protestors might “impair corrections officers’ ability to hear verbal exchanges between the inmate and an interlocutor with violent intentions”; or that someone could slip the inmate drugs or other contraband “under the guise of a sidewalk counseling effort.” DOC Br. 25, 28-29. These scenarios are wholly unrealistic. There is virtually no opportunity for interaction between inmates and the public, or even other clients, while at RHS. See supra pp. 5-6. Moreover, it is inappropriate for the Department to present these hypotheticals as “undisputed facts” that were ignored by the district court, DOC Br. 29, when no such facts exist in the summary judgment record.
Similarly, the Department takes notable liberties with the record in its arguments that rely on increased protestor presence on Saturdays and on the possibility of an inmate needing a two-day abortion procedure that starts on Friday and is completed on Saturday. First, it is clear that these issues played no role in the decision to implement the Policy. Supra pp. 7-9 (identifying facts considered in implementing Policy). It is simply disingenuous to suggest that the record establishes otherwise.21 Nonetheless, the Department implies that they have had
21 Further, in the summary judgment proceedings, the Department never cited, let alone relied on, the particular days on which RHS provides two-day procedures. See DOC Br. 16, 28 (citing affidavit submitted with Plaintiffs’ original complaint
35

to, or will have to, confront hundreds of protestors during an abortion outcount.
DOC Br. 28, 30.22 But in nearly ten years, no inmate has required two transports
to obtain an abortion (which would be required only for relatively late, and
therefore infrequent, abortions). And there is no evidence that abortion outcounts
were ever on a Saturday or when hundreds of picketers were present. J.A. 825,
886-87 (Pls.’ Supp. SOF ¶¶ 8-9 (citing evidence regarding days abortion outcounts
occurred and declining presence of picketers in past year), Defs.’ Reply SOF ¶¶
10-11 (admitting same)).
Ultimately, however, the presence of protestors on particular days or the
potential need for two transports is irrelevant. The Policy is absolute – it applies to
transports for all “elective” abortion procedures, all the time. It does not restrict
but never relied on by either party in cross-motions for summary judgment). Accordingly, the Department cannot belatedly rely on this fact on appeal. See Canada v. Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997) (“On appeal, we limit our examination to those same portions of the record [presented below], not taking into account other parts of the record that [appellant] now, belatedly, calls to our attention.”). In any event, for reasons discussed infra, it is irrelevant.
22 DOC claims there is “uncontroverted evidence that when the Department revised its abortion policy, crowds of at least one hundred people protested outside the RHS clinic every Saturday.” DOC Br. 28. But nothing in the record establishes the number of protestors present on the Saturdays “when the Department revised its abortion policy,” between January and July 2005. All the record shows is that as of September 2005, picketer presence on Saturdays typically reached 100, but that number fell to thirty by April 2006. J.A. 775-84, 735 (Gianino Aff. submitted Sept 5, 2005 in unrelated case; Gianino Dep. 28:2329:6). And DOC has never asserted that it knew of, or considered, this evidence at the time it implemented the Policy.
36

transports to particular days, or prohibit them on days when increased protestor presence is expected. The Policy bears no relationship to the alleged risks – even those the Department has crafted from wholly speculative scenarios.
3. The Remaining Turner Factors Weigh in Plaintiffs’ Favor. The district court rightly concluded that consideration of each of the three remaining Turner factors – inmates’ ability to otherwise exercise their right, the effect of accommodation on prison resources, and the existence of a ready alternative at de minimis cost – also weighs strongly in favor of Plaintiffs. J.A. 628-31 (Order).
a) Plaintiffs Have No Alternative Means to Exercise Their Right. The second Turner factor inquires whether there are alternative means available to inmates to exercise the affected right. Turner, 482 U.S. at 90. Because the right at issue here is “both time-bound and procedure-specific,” Monmouth, 834 F.2d at 339, it will be completely lost if not exercised within a relatively short period of time. The Policy completely disregards this reality and leaves pregnant inmates with no alternative means to exercise their right to choose abortion. In such circumstances, the second Turner factor weighs heavily in favor of accommodating inmates’ rights. See Love v. Reed, 216 F.3d 682, 689-90 (8th Cir. 2000) (invalidating regulation after concluding that inmate “has no consistent and dependable way of exercising his right to observe his Sabbath without the
37

requested accommodation”); Monmouth, 834 F.2d at 339 (striking down abortion restriction where “no other avenues remain available for the exercise of the asserted right” (internal quotation marks omitted)).
Nonetheless, the Department inexplicably argues that an inmate can obtain an abortion if a CMS doctor determines it is necessary to protect her health. DOC Br. 31. This is no alternative at all. Plaintiffs do not claim that the Policy prohibits access to therapeutic abortions, but that it extinguishes a pregnant inmate’s constitutional right to terminate her pregnancy under any other circumstances. Equally irrelevant is the Department’s argument that other avenues of exercising the right remain available because “an inmate may obtain an elective abortion before her term of incarceration begins.” Id. (emphases added). The district court rightly rejected this self-contradicting proposition, explaining that “Turner analyzes the prison regulation, as applied to inmates, not as applied to individuals before incarceration.” J.A. 629 (Order) (citing Turner, 482 U.S. at 90). Moreover, the Department’s proposed pre-incarceration “alternative” callously ignores the reality of those inmates who – like Plaintiff Roe – discover they are pregnant only after incarceration. There is simply no dispute on this point: unless the Department provides transport, there is no alternative for inmates to obtain nontherapeutic abortions. Id.
38

b) Accommodating the Right Has No Ripple Effect on Others or on Prison Resources.
The third Turner factor considers the impact accommodation of the right has on guards, other inmates, and the allocation of prison resources. Turner, 482 U.S. at 90. As the district court found, “it is undisputed that the impact of accommodating a woman’s right to terminate a pregnancy does not increase the burden on prison resources, including guards and other inmates.” J.A. 629 (Order).
In reaching this finding, the district court appropriately considered undisputed material evidence regarding the known and estimated financial and administrative resources entailed in arranging abortion outcounts and other comparable medical care. The lower court found: 1) “abortion outcounts have no distinct or measurable impact on the ongoing prison need to schedule and reschedule many medical appointments,” some 155 per month; 2) DOC “fail[s] to present any evidence where the transport of an inmate for an abortion has hindered the medical care of another inmate”; 3) the costs associated with an abortion outcount were “infrequent” and “minimal”; 4) DOC regularly bore the costs of medical care and transport for other pregnancy related care, including some 90 childbirths per year; and 5) when “reviewing the impact abortion transports had on DOC’s costs and resources,” the Department failed to consider the “comparative costs” of providing other pregnancy-related medical care and transports – costs that DOC does not have to bear if the inmate terminates her pregnancy. J.A. 616-18;
39

629-30 (Order).23 Looking at similar facts, the Monmouth Court concluded: “Accommodation of the inmate’s choice to terminate her pregnancy under the same terms currently available to pregnant inmates opting for childbirth will impose no more, and indeed probably less, administrative and financial burdens on [prison] officials.” Monmouth, 834 F.2d at 341-42. The same is true here.
Trying to escape the import of these undisputed facts, the Department complains that the district court placed an “excessively high summary judgment evidentiary burden on Defendants.” DOC Br. 33. But it does not explain how this is so. Rather, it merely reiterates the speculation that accommodation will pose an increased drain on prison resources, and will therefore presumably interfere with transports for other medical care. But, consistent with the above findings, the Department only identifies typical overhead costs inherent to all medical transports and admits that “the cost of [abortion] transport was small in comparison with the Department’s total budget.” Id. Such minimal costs are acceptable under Turner. Turner does not contemplate that “alternatives have to be entirely cost-free; costs that are insubstantial in light of the overall maintenance of the prison are acceptable.” Salaam, 905 F.2d at 1171; Monmouth, 834 F.2d at 337 (holding “the cost of protecting a constitutional right cannot justify its total denial” (internal
23 The summary judgment record overwhelming supports each of these findings. See supra pp. 2-7 (citing record evidence establishing same).
40

quotation marks omitted)). The Department’s complaint that the court below gave inadequate consideration to these burdens thus rings hollow and falls far short of overcoming Plaintiffs’ showing that accommodation will not “have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Turner, 482 U.S. at 90.
c) A Ready and Workable Alternative to the Policy Is Available. The final Turner factor – whether there are ready alternatives that would accommodate Plaintiffs’ constitutional rights at de minimis cost to valid penological interests – likewise weighs in Plaintiffs’ favor. DOC can accommodate Plaintiffs’ right to choose abortion, as they have in the past, by simply providing abortion outcounts. This has been a workable accommodation for at least the past eight years, and the Department cannot reasonably explain why it is no longer a ready alternative to the Policy. Instead, the Department mistakenly argues that it is “legally insufficient” for Plaintiffs to seek elimination of the Policy, rather than imposition of some new form of accommodation. DOC Br. 34-35. As the district court recognized, the Department “fails to consider the full extent of the Supreme Court’s guidance in Turner.” J.A. 630 (Order). Where inmates point to an accommodation that poses only “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. (quoting Turner, 482 U.S. at 91) (internal quotation marks omitted). There is
41

no additional requirement that the proposed accommodation be something wholly new. Indeed, this Court has not hesitated simply to eliminate prison policies that posed unreasonable barriers to constitutional rights. For instance, in Williams, this Court struck down a policy prohibiting inmates from receiving certain racist publications, which prison administrators claimed was necessary to prevent violence among inmates. 116 F.3d at 354. In so doing, this Court did not require the plaintiff to identify a new alternative by which officials could accommodate his First Amendment right to these materials. Rather, it invalidated the ban because the record demonstrated no connection between receipt of the magazines in the past and the proffered security concerns. Id. at 354; see also Love, 216 F.3d at 691 (eliminating policy where doing so accommodated prisoner’s religious rights with de minimis burden to prison).
As in Williams, the practices in place prior to the challenged Policy remain a ready alternative. For reasons discussed thoroughly with respect to the first Turner prong, the record establishes that providing abortion outcounts has not compromised prison security. See supra Part I.B.2. Plainly, then, continuing these same practices cannot possibly pose more than a “de minimis cost to valid penological interests.” Turner, 482 U.S. at 90-91. Moreover, not only has transport for off-site abortion care proven a workable accommodation within DOC for many years, the federal and several state prison systems provide similar
42

accommodations to their inmates.24 In other words, providing abortion outcounts
is not only ready and workable, it is a proven alternative to an absolute ban. As the
district court properly concluded, the record below flatly contradicts the
Department’s insistence that there is no way to accommodate both the
constitutional rights of Plaintiffs and its proffered security concerns. J.A. 631
(Order).
4. Similar Decisions From Other Courts Support Affirmance.
As discussed supra p. 22, court after court has struck down prison or jail
policies obstructing inmates’ access to medical care for abortion. Particularly
instructive is the Third Circuit’s analysis of a policy that prohibited inmates from
obtaining off-site abortion care unless they were able to first obtain an authorizing
court order. Monmouth, 834 F.2d at 331-44. Like the Policy at issue here, that
restriction applied to abortions categorized as elective, but not to the many off-site
transports for health care that jail officials categorized as medically necessary. As
in this case, the jail regularly transported inmates off-site for all other pregnancy-
related care, including childbirth. Id. at 341-42. And, as here, the prohibition was
24 Federal prisons are required to offer counseling to pregnant inmates on all options, including abortion, and arrange for abortion upon an inmate’s request. 28 C.F.R. § 551.23; Bureau of Prisons Policy 6070.5. Various state prisons, including California, Illinois, Minnesota, and New Jersey, have similar policies. See Cal. Penal Code § 3405; 20 Ill. Admin. Code § 415.30(j); Minn. Dep’t of Corrections Division Directives 500.010, 500.108 (Nov. 7, 2006), available at http://info.doc.state.mn.us/DocPolicy2/html/DPW_toc.asp#HEALTH; 10A N.J. Admin. Code, § 31-13.10(a)(3), (5).
43

a blanket policy that did not take into account an inmate’s security history or other
individualized considerations. Id. at 338. In light of these facts, the Third Circuit
found the differential treatment of inmates seeking abortions and inmates seeking
all other types of medical care “simply inexplicable in terms of legitimate security
concerns,” and concluded that the policy unconstitutionally “center[ed] around the
nature of the treatment” and “in no way relate[d] to the gravity of any perceived
security risks.” Id. at 336-38. For all the reasons discussed above, the district
court’s similar analysis and conclusion based on the specific, yet analogous, facts of this case are correct.25
In contrast, the Department’s singular reliance on Victoria W. – for the
proposition that its Policy is a rational means to promote security because it seeks
to reduce “the total number of outcounts, no matter how small the reduction” – is
unavailing. DOC Br. 26-27. Victoria W., the only case to uphold a policy
25 The Department briefly argues Monmouth is unpersuasive because it did not consider security concerns and because the policy at issue lacked a health exception. DOC Br. 25-26. Both points misunderstand the Monmouth analysis and relevance. The Monmouth court, like the district court here, assumed that the state had a legitimate penological interest related to the security of off-site transports and considered – as required by the first Turner prong – whether the policy was rationally related to that interest. See 834 F.2d at 336-38. The Department’s assertion that the Monmouth policy did not contain a health exception is similarly mistaken. On appeal, the jail took the position that its policy did not apply to “medically necessary abortions,” and the Third Circuit reviewed the constitutionality of the policy as it applied to non-therapeutic abortions. 834 F.2d at 328 n.4.
44

obstructing inmates’ access to abortion,26 is unpersuasive both because of serious
errors in the court’s legal analysis, and because the policy and facts in that case are
distinguishable from those here.
The Victoria W. court implicitly acknowledged that a prison policy aimed at
preventing abortions, or having that effect, would be unconstitutional, and found
that such was not the purpose of the challenged policy, which required inmates to
obtain court orders for abortions. 369 F.3d at 488-89. Further, the court found that
any inmate asking a court to authorize an off-site abortion would obtain the
necessary order. Id. at 488. Nonetheless, the court went on to validate, as
presumptively legitimate, the policy’s goal of prohibiting as many abortion
transports as possible. The error in this reasoning is two-fold. First, it assumes
that inmates have the constitutional right to access abortion services, but fails to
recognize any corresponding obligation of prison officials to accommodate that
right. Second, if the court order requirement served a legitimate purpose only
26 Amici Senators rely to no avail on two cases in which individual prisoners were unable to obtain abortions because of excessive delays in arranging the procedures. Senators Br. 16-17. In Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991), although the Second Circuit held that negligence by prison officials in one isolated case did not amount to a constitutional violation, it did so because the prison’s “normal procedure guarantees female inmates . . . their right to choose to terminate their pregnancies.” Id. at 986. Far from validating a blanket prohibition on abortion such as the Policy, Malffucci’s analysis strongly indicates that such a ban could not withstand constitutional scrutiny. Id. Similarly, the decision in Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991), is based on a singular incident in which the negligence of various prison employees delayed an inmate’s access to abortion until it was too late. Id. at 535-36.
45

when it in fact prevented a transport, but the record demonstrated that authorization

for abortion transports was always forthcoming, then the policy served no purpose

at all when applied to inmate requests for abortion.

The factual dissimilarities between Victoria W. and this case further

undermine the Department’s reliance on that decision. In Victoria W., the policy

applied equally to all requests for “non-emergency” off-site medical care. In

contrast, here, DOC has not determined that security concerns necessitate a

restriction, let alone ban, on the wide array of non-emergency medical care for

which inmates are daily transported. Further, the facts here establish that

prohibiting abortion outcounts does not in fact eliminate the need to transport

pregnant inmates for future pregnancy-related medical care. See supra pp. 4-5

(regarding frequency of such transports). Whether no such facts were developed in

Victoria W., or that court failed to consider them, in this case their relevance to the

Turner reasonableness analysis is clear: Prohibiting abortion outcounts will do

nothing to reduce the impact of outcounts on overall prison security and resources.

*

*

*

In sum, the Department admittedly did not promulgate the Policy in

response to any identified or known repercussions from providing abortion

outcounts, and for the many years during which it has transported inmates for

abortions, none of its alleged concerns has ever materialized. Indeed, despite the

46

Department’s strained attempts to virtually reinvent the summary judgment record, they point to no record facts, and no error in the district court’s legal analysis, that require reversal, much less entitle the Department to judgment in its favor. Ultimately, the Department’s justifications for the Policy amount to nothing more than “‘piling of conjecture upon conjecture’” – a wholly insufficient basis for depriving Plaintiffs of their constitutional rights. Salaam, 905 F.2d at 1174 (quoting Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988)); see also Quinn, 983 F.2d at 119 (affirming finding below that “proffered justification for [prison officials’] actions was pretextual” where basis of alleged penological concerns was not identified at time officials acted). Because the Department’s refusal to accommodate the rights of inmates who choose to terminate their pregnancies does not “rationally” or “actually” advance a “neutral and legitimate government interest,” Salaam, 905 F.2d at 1171, it cannot stand. II. The District Court Correctly Held That the Policy Constitutes
Deliberate Indifference to Pregnant Inmates’ Serious Medical Needs. Just as the Policy is not reasonably related to legitimate penological concerns, supra Point I, the Policy – of forcing inmates to continue their pregnancies and give birth against their will – is wholly unrelated to medical needs. The Department does not even pretend that it considered the medical impact on inmates in formulating the Policy, the underlying motivations for which were transparently political. Supra pp. 7-8 (regarding origins of Policy). Indeed,
47

the Policy violates the Eighth Amendment because it constitutes deliberate indifference to pregnant inmates’ serious medical needs. The State is obligated “to provide medical care for those whom it . . . incarcerat[es].” Estelle, 429 U.S. at 103. Exhibiting “deliberate indifference” to “serious medical needs” by “[i]ntentionally denying or delaying access to medical care” violates inmates’ right to be free from cruel and unusual punishment. Id. at 104-05; see also Robinson v. Hager, 292 F.3d 560, 563-64 (8th Cir. 2002) (quoting same); Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991). Pregnancy termination fits well within the bounds of those medical needs that courts routinely safeguard under the Eighth Amendment. And, as established by undisputed medical evidence in this case, pregnancy termination constitutes a vital component of medical care for pregnant women. For these reasons, the district court correctly held that the Policy violates the Eighth Amendment. J.A. 631-32 (Order).
A. Under Relevant Eighth Amendment Jurisprudence, an Inmate Who Decides to Terminate Her Pregnancy Has a Serious Medical Need.
Access to abortion care is a “serious medical need” because an incarcerated woman denied the procedure inevitably faces irreparable consequences: continuation of the pregnancy and either miscarriage or childbirth – all against her will. Plainly, unlike many other potentially “elective” medical treatments, the decision to terminate a pregnancy “cannot be postponed, or it will be made by
48

default with far-reaching consequences.” Bellotti v. Baird, 443 U.S. 622, 643
(1979); see also J.A. 64, 207 (SOF ¶ 55, Conley Dep. 31:14-19) (agreeing that
impact of delaying treatment is relevant in decision to provide medical care to
prisoners). Indeed, the irreparable consequences of denying women the right to
access abortion are well established. See Roe v. Wade, 410 U.S. 113, 153 (1973)
(“Specific and direct harm medically diagnosable even in early pregnancy may be
involved. . . . Psychological harm may be imminent.”). Assessing this irreparable
harm in the prison context, the Third Circuit rejected the notion that the
classification of abortion as “elective” disqualifies it as a “serious medical need”:
[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.”
Monmouth, 834 F.2d at 349.27 Because the decision to terminate a pregnancy – no
less than the decision to carry to term – requires timely medical care to avoid
27 Amici Senators accuse the Monmouth Court of inappropriately confusing Fourteenth Amendment abortion jurisprudence with Eighth Amendment jurisprudence. Senators Br. 19 & n.19. However, that part of the Monmouth decision did not consider abortion jurisprudence for the purpose of interpreting Eighth Amendment standards, but to illustrate the serious and permanent medical consequences – long recognized by the Court – of pregnancy and childbirth.
49

serious and permanent health consequences, “the categorical denial of elective,
nontherapeutic abortions constitutes deliberate indifference to serious medical
needs.” Monmouth, 834 F.2d at 349. See also Barron, 92 F. Supp. 2d at 696
(citing Monmouth with approval).28
This Court has relied on Monmouth in likewise rejecting the notion that
Eighth Amendment serious medical needs analysis can be reduced to
distinguishing “elective” and “medically necessary” care. In Johnson v. Bowers,
this Court cited Monmouth in support of the proposition that the mere
28 The State does not refute Monmouth’s analysis. And Amici Senators’ various arguments to discredit Monmouth fail. First, their view that Victoria W. is more persuasive, Senators’ Br. 11-18, 20, 22-26, ignores the plain error in Victoria W.: the Fifth Circuit’s assumption that Turner applied to Eighth Amendment claims. See Victoria W., 369 F.3d at 485 & n.45. Turner is unquestionably not the standard for Eighth Amendment claims. See Johnson, 543 U.S. at 511 (“[W]e have not used Turner to evaluate Eighth Amendment claims of cruel and unusual punishment in prison. We judge violations of that Amendment under the ‘deliberate indifference’ standard.”). Amici Senators’ nearly exclusive reliance on the district court’s Eighth Amendment analysis in Victoria W. is equally unavailing since the Fifth Circuit did not adopt that reasoning and, in affirming, applied the wrong standard (i.e., applied Turner to Eighth Amendment claims). Second, that Monmouth preceded the Supreme Court’s decision in Casey, 505 U.S. 833, is irrelevant. See Senators’ Br. 18. Casey, which addressed the standard for Fourteenth Amendment reproductive rights claims, neither touched on Eighth Amendment analysis nor questioned the serious medical and health implications of forcing women to carry to term. 505 U.S. at 846-54. Finally, their reliance on Gibson, Senators Br. 16-17, is also misplaced. The plaintiff’s claim in that case was rejected not for failure to show a serious medical need, but because the negligent actions of individual prison officials did not amount to “deliberate indifference.” 926 F.2d at 536-37. See also supra note 26.
50

“classification” of medical care “as ‘elective’ . . . does not abrogate the prison’s duty” to provide that care where denying it would have irreparable consequences. 884 F.2d at 1056; see also id. at 1054, 1056 (holding that indefinitely delaying “elective” surgery to correct left-hand nerve injury constituted denial of care for serious medical need even though inmate was “right-handed and experience[d] no pain from the injury,” because without surgery, the injury would constitute a “permanent handicap” restricting his day-to-day activities); Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *3 (4th Cir. Aug. 12, 1997) (unpublished) (relying on Johnson and Monmouth in recognizing that “proper eighth amendment inquiry should involve looking beyond labels and examining the substance of the claim”); Garrett, supra, at *2-*3 (holding that district court erred in holding “denial of ‘elective’ surgery cannot amount to a deprivation of necessary medical treatment,” where surgery delayed so long that hernia became inoperable); Delker v. Maass, 843 F. Supp. 1390, 1400 (D. Or. 1994) (“[T]he words ‘elective surgery’ are not a talisman insulating prison officials from the reach of the Eighth Amendment.”).29
Thus, as this Court and others have recognized, when the denial of treatment for a particular medical condition causes irreparable harm, it is a “serious medical
29 DOC thus rests to no avail on the conclusory statement that because “elective” abortions are not “medically necessary,” they do not constitute a “serious medical need.” DOC Br. 38.
51

need,” regardless of whether prison officials characterize it as “elective.”30
Because an inmate denied an abortion will forever suffer the consequences –
medical, physical, and emotional – of continued pregnancy and childbirth, she has
a serious medical need. J.A. 632 (Order). The Department’s rejoinder – that the
Policy is constitutional because it does not contravene “concepts of ‘dignity,
civilized standards, humanity and decency,” Estelle, 429 U.S. at 102 – is
groundless. DOC Br. 38. Longstanding precedent, as well as the undisputed
record evidence here, see infra Point II.B., establish that access to abortion care is
“central to personal dignity and autonomy,” in a way “unique to the human
condition.” Casey, 505 U.S. at 851-52. Though quoting Estelle, the Department
ignores its core principle: that the Constitution forbids treatment of prisoners that
30 Nor, as Amici Senators suggest, Senators Br. 11-12, 19-20, do courts, including this Court, limit serious medical needs to emergency or extreme medical conditions. See, e.g., Ellis v. Butler, 890 F.2d 1001, 1003 n.1 (8th Cir. 1999) (“[A] medical condition need not be an emergency in order to be considered serious under Estelle.”); see also Brief of American College of Obstetricians and Gynecologists et al. in Support of Appellees (ACOG Br.). Moreover, the vast body of Eighth Amendment jurisprudence illustrates that inmates are constitutionally entitled to receive treatment for a broad range of conditions where denial of care has consequences that are similar to, or less serious than, the consequences of denying women access to abortion. See, e.g., Hartsfield v. Colburn, 371 F.3d 454, 456-58 (8th Cir. 2004) (dental care to treat tooth infection is serious medical need); Board v. Farnham 394 F.3d 469, 478-83 (7th Cir. 2005) (right to toothpaste to meet serious medical need and for regular dental hygiene); ACOG Br. (listing cases). These cases, as well as the undisputed evidence discussed infra Point II.B, likewise belie Amici Senator’s similar argument that a pregnant woman in need of an abortion has a condition “lacking in similarity and intensity to the other medical conditions” found to be serious medical needs. Senators Br. 15-16 (citing Victoria W. district court opinion).
52

“result[s] in pain and suffering which no one suggests would serve any penological purpose.” Estelle, 429 U.S. at 103. Yet the Policy, in compelling Plaintiffs to assume the risks and burdens of pregnancy and childbirth against their will, does just that. Given the unique challenges and vulnerabilities faced by incarcerated women, see Brief of CLAIM et al. in Support of Appellees, the Department’s willful disregard of these consequences is particularly “repugnant to the Eighth Amendment.” Estelle, 429 U.S. at 102.
B. Undisputed Evidence Demonstrates That Plaintiffs Have a Serious Medical Need.
Expert medical opinion and relevant medical standards establish that access to abortion care is necessary to meet the serious medical needs of a woman who does not want to continue her pregnancy. This is in no small part because, as explained in Dr. Sokol’s uncontested expert report, women face increased risks of serious medical complications and death throughout pregnancy. J.A. 423-24 (Sokol Rep. ¶¶ 1, 3-4). Hence, essential medical care for pregnant women includes obstetrical care throughout pregnancy and delivery; treatment for complications of pregnancy; and “procedure[s] to induce abortion” for those women who want to end a pregnancy. J.A. 424 (Sokol Rep. ¶ 3).
Moreover, while both induced abortion and childbirth are safe when provided by skilled medical personnel, induced abortion carries substantially less risk of death and serious medical complications. “[A] woman is at least ten times
53

more likely to die from continuing a pregnancy through childbirth than from induced abortion.” J.A. 424 (Sokol Rep. ¶ 4.) These increased risks of continuing a pregnancy are even greater where the pregnancy is “high-risk,” such as when the woman lacks access to prenatal care, has a history of substance abuse, suffers hypertension, or develops complications of pregnancy, such as gestational diabetes. These increased risks are very real for incarcerated women. As the Department admits, many pregnant inmates at WERDCC have high-risk pregnancies. Supra pp. 10-11.
Further, as set forth by Amici American College of Obstetricians and Gynecologists et al. (ACOG), the standards of care established by the leading national medical groups recognize that abortion is an essential component of pregnancy care, and that there is no medical justification for denying an abortion to a woman who wants to end her pregnancy. See ACOG Br. 31 Likewise, under NCCHC guidelines – which DOC incorporates in its health policies – pregnant inmates’ care must be “in accordance with their expressed desires regarding their pregnancy, whether they elect to keep the child, use adoption services, or have an abortion.” Supra p. 12. The import of these ACOG and NCCHC standards is
31 Amici ACOG obviously do not suggest that abortion is indicated as a treatment for every pregnancy. Rather, these groups recognize that the option of abortion must be available for all pregnant women, whereas denying women this component of standard care is medically inappropriate.
54

plain in the Department’s own guidelines for meeting inmates’ serious medical

needs, which require it to provide “the level of care that is comparable to [the]

community standard of practice.” Id.; J.A. 63, 380 (SOF ¶¶ 47-48, Patient Guide to Med. Servs.)32 Thus, the Policy prohibiting abortion is inconsistent with

national, correctional, and DOC medical standards.

*

*

*

For a woman who does not want to continue her pregnancy, it is undisputed

that induced abortion “can safely reduce, by a substantial degree, the risks” to her

health and life. J.A. 425 (Sokol Rep. ¶ 6). Nonetheless, the Department deprives

inmates of abortion care, thereby forcing them to take on the greater health risks,

and the need for other medical care, inherent in continuing a pregnancy. In so

doing, the Policy manifests deliberate indifference to Plaintiffs’ serious medical

needs. Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (finding Eighth

Amendment violation where defendants knew of “objectively serious medical need

. . . yet deliberately disregarded it”).

32 Indeed, besides abortion, the Department does not prohibit any other particular medical care. Even if CMS characterizes particular medical care as “elective,” the physicians providing care to DOC inmates retain the discretion to authorize that treatment. See supra p. 4. Thus, the inability of pregnant inmates to ever obtain elective abortions – either on- or off-site – conflicts with the Department’s own claim of meeting community standards of practice and allowing case-by-case consideration of all medical requests. DOC Br. 12-13.
55

CONCLUSION
For the foregoing reasons this Court should affirm the decision below.
/s/ Diana Kasdan Talcott Camp Charu A. Chandrasekhar American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Telephone: 212 549-2633 Facsimile: 212-549-2652
Thomas M. Blumenthal, MBEN 25601, EDMo 2652
165 North Meramec Ave. St. Louis, MO 63105 Telephone: 314-727-2266 Facsimile: 314-727-2101 Cooperating Attorney American Civil Liberties Union
of Eastern Missouri
Anthony E. Rothert, Legal Director MBEN 44827, EDMo 518779
James G. Felakos, Cooperating Attorney MBEN 56356, Federal Bar # JF6965
American Civil Liberties Union of Eastern Missouri
4557 Laclede Ave St. Louis, MO 63108 Telephone: 314-361-3635 Facsimile: 314-361-3135
56

CERTIFICATE OF SERVICE AND COMPLIANCE I hereby certify that the text, including footnotes, of the foregoing document, excluding the Summary and Request for Oral Argument, the Table of Contents, the Table of Authorities, this Certificate of Service and Compliance, and the Addendum, contains 13,980 words of proportional spacing as determined by the automated word count of the Microsoft Word 2002 processing system and has 14point font size, and that the CD-ROM submitted with the instant brief has been scanned for viruses and is virus-free. I further certify that two true and correct copies of this brief and a labeled CD-ROM containing this brief were mailed, postage prepaid, this 30th day of November, 2006, via Federal Express next day delivery, to: Michael Pritchett Missouri Assistant Attorney General Missouri Office of the Attorney General Post Office Box 899 Jefferson City, MO 65102
/s/ Diana Kasdan Counsel for Plaintiffs
57

ADDENDUM Letter from Sen. Chuck Gross to Larry Crawford (Jan. 18, 2005)........................ A1 Memo from Patricia Cornell to Steve Long (July 7, 2005) ................................... A2 Memo from Steve Long to Cyndi Prudden (July 19, 2005) .................................. A4 Memo from Sheila Scott to Institutional Services Policy and Procedure
Manual Holders (Aug. 4, 2005) .................................................................. A5 IS11-58 Policy, Pregnancy Counseling (Sept. 5, 2005) ........................................ A6 Expert Report of Robert James Sokol, M.D. ......................................................... A8
UNPUBLISHED OPINIONS 1. Garrett v. Elko, 120 F.3d 261, 1997 WL 457667 (4th Cir. Aug. 12, 1997) 2. Doe v. Arpaio, No. 2004-009286, 2005 WL 2173988 (Ariz. Super. Ct. Aug.
25, 2005) 3. Roe v. Leis, No. C-1-00-651, 2001 WL 1842459 (S.D. Ohio Jan. 10, 2001)
58

 
 Appeal No. 06-3108

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

JANE ROE, Appellee, v.
LARRY CRAWFORD, et al., Appellants.

Appeal from the United States District Court, Western District of Missouri, Central Division
The Honorable Dean Whipple, Chief Judge

REPLY BRIEF OF APPELLANTS

JEREMIAH W. (JAY) NIXON Attorney General

Michael Pritchett Missouri Bar No. 33848 Emily A. Dodge Missouri Bar No. 53914 Assistant Attorneys General

Post Office Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

Fax:

(573) 751-9456

ATTORNEYS FOR APPELLANTS

TABLE OF CONTENTS Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The Department’s policy does not impose an undue burden on prisoners’ ability to choose abortion and the policy is reasonably related to the Department’s legitimate penological interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. The Department’s policy not to transport prisoners for abortions that are not medically necessary is consistent with the plaintiff class’s Eighth Amendment right to be free from cruel and unusual punishment because no serious medical need is involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Certificate of Service and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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TABLE OF AUTHORITIES Cases: Beard v. Banks, 126 S.Ct. 2572 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-10 Camberos v. Branstad, 73 F.3d 174 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 20 Canada v. Union Elec. Co, 135 F.3d 1211 (8th Cir. 1997) . . . . . . . . . . . . . . . . . 14 Dulany v. Carnahan, 132 F.3d 1234 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . 11, 20 Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 8 Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 8 Harris v. McRae, 100 S.Ct. 2671 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Herlein v. Higgins, 172 F.3d 1089 (8th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . 16 Hudson v. Palmer, 104 S.Ct. 517 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Huelsman v. Civic Center Corp., 873 F.2d 1171 (8th Cir. 1989) . . . . . . . . . . . . . 14 Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Overton v. Bazzetta, 123 S.Ct. 126 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10 Pell v. Procunier, 107 S.Ct. 2800 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Planned Parenthood of Southeastern Pennsylvania v. Casey,
112 S.Ct. 2791 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7 Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Thornburgh v. Abbott, 109 S.Ct. 1874 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16
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Turner v. Safley, 107 S.Ct. 2254 (1987) . . . . . . . . . . . . . . . . . . . . . . 6-9, 13, 15-17 Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . 7, 11 Washington v. Harper, 110 S.Ct. 1028 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997) . . . . . . . . . . . . . . . . 10, 17, 18
Rules: Fed. R. App. P. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Other: American Heritage Dictionary 1260 (2d College Ed.) . . . . . . . . . . . . . . . . . . . . . 23 C Lopez et al., Variations in chemokine receptor and cytokine expression during
pregnancy in multiple sclerosis patients, 12 MULTIPLE SCLEROSIS 421-27 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Pregnancy and Breast Cancer Risk (visited Dec. 6, 2006) available at: www.cancer.gov/cancertopics/factsheet/Risk/pregnancy . . . . . . . . . . . . . . 21 Pregnancy and Breast Cancer Risk http://ctep.info.nih.gov/resources/gcig/news072004.html . . . . . . . . . . . . . . 21 Sandra Vukusic et al., Pregnancy and Multiple Sclerosis (the PRIMS study): clinical predictors of post-partum relapse, 127 BRAIN 1353-60
3

(2004), available at: http://brain.oxfordjournals.org/cgi/content/abstract/awh152v1 . . . . . . . 21, 22
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ARGUMENT I.
The Department’s policy does not impose an undue burden on prisoners’ ability to choose abortion and the policy is reasonably related to the Department’s legitimate penological interests.
Plaintiffs first argue that the right to elective abortion is a substantive due process right, as well as a privacy right, that survives incarceration. They concede, however, that “liberty of movement” and the Fourteenth Amendment right to travel are fundamentally inconsistent with incarceration. (Appellee’s Br. at p. 18). Likewise, the Fourteenth Amendment right to choose abortion is inherently inconsistent with incarceration, as discussed in Appellants’ Brief at pp. 21-24.
Plaintiffs, citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2807 (1992), contend that an abortion decision involves a “uniquely personal” right. (Appellee’s Br. at 20). In Casey, the Supreme Court first recognized that decisions relating to marriage, procreation, contraception, family relationships, and child rearing involve “the most intimate and personal choices a person may make in a lifetime,” but stated further that these considerations “cannot end” the legal analysis of abortion rights. 112 S.Ct. at 2807. The reason for this is that abortion has consequences not only for the woman electing to terminate her pregnancy, but for
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society. Id. Although the wish to terminate a pregnancy “may originate within the zone of conscience and belief” (see id.), the impact of abortion on others should be considered in determining the scope of abortion rights. The impact on the safety and rights of corrections officers and other inmates should be considered in determining the scope of inmate abortion rights. See also Thornburgh v. Abbott, 109 S.Ct. 1874, 1884 (1989). There is also an impact on society because Plaintiffs’ asserted right to elective abortion conflicts with important penological interests, as discussed in Appellant’s Brief.
In footnote 10, Plaintiffs intimate that under the policy, Department officials decide whether an individual inmate may carry her pregnancy to term. (Appellee’s Br. at 20, n. 10). This is inaccurate – a physician determines whether an abortion is medically indicated and the Department does not interfere with that professional medical judgment. The policy was applied consistently to inmates for whom abortion was not medically necessary. There is no evidence that any Department official coerced or pressured an inmate into carrying a pregnancy to term.
Plaintiffs then suggest that the policy should be analyzed under the undue burden standard articulated in Casey, 112 S.Ct. 2791, 2819 (1992), rather than Turner v. Safley, 107 S.Ct. 2254 (1987). The district court properly determined that Casey is not the appropriate test to apply to the policy. App. 623. The scope of
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constitutional rights asserted by inmates necessarily reflects the unique circumstances and difficulties of the prison setting. Turner, 107 S.Ct. at 2259-60; Victoria W. v. Larpenter, 369 F.3d 475, 483 (5th Cir. 2004).
Even if the undue burden test established in Casey did apply here, Defendants would still be entitled to judgment as a matter of law. The policy does not impose an undue burden on the plaintiff class’s ability to choose abortion. Under Casey, though the government may not impose an undue burden on a woman’s ability to decide whether to have an abortion, the state “need not [remove] obstacles not of its own creation.” 112 S.Ct. at 2819. Indigency is one example of an obstacle not created by the state, although individuals may be poor through no fault of their own. See Casey, 112 S.Ct. at 2819, citing Harris v. McRae, 100 S.Ct. 2671, 2686 (1980); see also Harris, 100 S.Ct. at 2688 (1980). The obstacles to Plaintiffs in obtaining abortions – their choices to commit felonies, and, in some cases, further choices to violate the terms of probation or parole – are of Plaintiffs’ own creation, and were not imposed by the Department.
Plaintiffs argue that, if this Court agrees with the district court that it is the Turner standard that applies, the policy is an unconstitutional regulation of the asserted right to choose elective abortion. Under Turner, the first consideration is whether the asserted constitutional right survives incarceration. Turner, S.Ct. at 2261,
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2264; Overton, 123 S.Ct. at 2168. If the right does not survive incarceration, the analysis ends here. Gerber v. Hickman, 291 F.3d 617, 620, 621 (9th Cir. 2002).
Plaintiffs cite Washington v. Harper, 110 S.Ct. 1028 (1990), in support of their argument that inmates’ abortion rights survive incarceration. Even if this is so, a prison regulation or policy that might otherwise impinge on an inmate’s constitutional right will survive a challenge if the regulation is reasonably related to legitimate penological interests. Turner v. Safley, 107 S.Ct. 2254, 2261; Goodwin v. Turner, 908 F.2d 1395, 1398-1400 (8th Cir. 1990). Prisoners retain constitutional rights that are not inconsistent with the legitimate penological objectives of the correctional system. Hudson v. Palmer, 104 S.Ct. 517, 523 (1984). The Court in Harper recognized the prison system’s important interests in combating the danger inmates pose to others and in ensuring the safety of prison staff. 110 S.Ct. at 1039. Just as the challenged policy in Harper was rationally related to these legitimate penological objectives, the Department’s policy is rationally designed to further its compelling interest in security. See 110 S.Ct. at 1038.
The evidence in the record was more than sufficient to demonstrate that the Department’s policy is rationally related to its legitimate interest in security. In Beard v. Banks, 126 S.Ct. 2572 (2006), the Supreme Court held that a prison superintendent’s deposition testimony and affidavit provided adequate justification
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for the challenged policy in that the testimony set forth a valid, rational connection between denying photographs and periodicals to a class of inmates and the penological goal of behavior modification. 126 S.Ct. at 2578-79. This testimony warranted granting summary judgment in favor of the Pennsylvania Department of Corrections at the first stage of the Turner analysis; the additional justifications of security and fire prevention were not needed to uphold the policy. Beard, 126 S.Ct. at 2578-79. In the instant case, like the deposition testimony of the official in Beard, the deposition testimony of Steve Long, Acting Director of the Division of Adult Institutions at the time the policy change was contemplated and adopted, demonstrated that the policy was adopted because of security and safety concerns and explained how the policy rationally furthers the legitimate penological functions articulated. App. at 681, 690 (Dep. of Long at 39, 73-75). Mr. Long’s deposition testimony was supported by a Department memorandum contemporaneous with the policy change. (App. 288, 853, 891). Although Plaintiffs contend that security was “at best one of several considerations” in the policy’s adoption (see Appellee’s Br. at 26, n. 13), as in Beard v. Banks, Defendants are entitled to summary judgment whether or not additional penological goals and interests used as a basis for summary judgment argument are ultimately held sufficient to validate the challenged policy. 126 S.Ct. at 2578-79. Mr. Long’s testimony, memorandum, and other evidence
9

demonstrate a valid, rational connection between the policy and the Department’s compelling penological interest in security.
Plaintiffs’ reliance on Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993), which reviewed a district court’s factual determination after a trial, is misplaced. 983 F.2d at 117, 119. In contrast with Quinn, in the instant case, contemporaneous, written evidence shows that inmates were denied elective abortions due to security and safety concerns and, as distinguished from Quinn and Williams v. Brimeyer, 116 F.3d 351, 353-54 (8th Cir. 1997), the Department’s policy has been applied consistently.
Plaintiffs’ assertion that Defendants’ position is tantamount to demanding “blind” acceptance of its security concerns (Appellee’s Br. at 26) is incorrect. Defendants simply argue that there was more than adequate evidence to support prison officials’ judgment that outcounts for elective abortions should be discontinued for security reasons, and that Plaintiffs failed to meet their burden of disproving the validity of the policy. See Overton v. Bazzetta, 123 S.Ct. 126, 132 (2003). Plaintiffs do not challenge the Department’s general policy against providing transportation and security for elective procedures, implemented for security reasons, of which the policy not to transport inmates for elective abortions is a logical extension. The policy is neither arbitrary nor irrational. See Victoria W. v. Larpenter, 369 F.3d 475, 486-87 (5th Cir. 2004).
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Plaintiffs repeatedly emphasize their view that elective abortions are medically necessary (see, e.g., Appellee’s Br. at 32) and do not pose greater security risks than other medical outcounts. Only elective, non-medically necessary abortions are at issue in this case. The law simply does not accord an inmate’s desire for particular medical treatment equal status with medically necessary care. See Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Plaintiffs argue that the policy prohibiting outcounts for non-therapeutic abortions for security reasons is not justifiable because that policy will not reduce the overall number of trips outside the prison. Pregnant inmates will still be transported to give birth and also when other medical needs arise that cannot be addressed inside the prison walls. But the plaintiffs’ argument is logically flawed. When physicians have determined a double mastectomy is not medically necessary or appropriate, the desire of an inmate with breast cancer to undergo that procedure need not be acceded to, even where the elective procedure would eliminate the need for outcounts for chemotherapy or radiation treatment. Eliminating outcounts for elective abortions reduces security risks. The need to transport inmates for necessary medical care does not detract from the policy’s rational relationship to legitimate security concerns, even if a series of medical outcounts may be necessary to address certain medical needs.
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Moreover, the evidence in the record shows the existence of additional security risks associated with abortion outcounts qualitatively different from those associated with medical outcounts. See Appellant’s Br. at 14-17. A further illustration of the different nature of the security risks involved in abortion outcounts is that, if there were substantial security problems associated with a particular health care provider or facility, the Department would have the option to transport inmates needing outside medical care to a different location and would have many available options. In contrast, it is undisputed that there is no facility closer than St. Louis that provides abortions to inmates. Seeking an alternate abortion provider is not a reasonably available option.
Plaintiffs discount the Department’s security concerns and the evidence supporting them, contending that there is little risk of escape or interference by third parties because WERDCC’s patient transport procedure provides that inmates should not be told of the date, time, or location of an off-site medical appointment. Appellee’s Br. at 33; App. 373. However, surgical procedures or administration of anesthetics often require a prior period of abstention from food or water; a prisoner might conclude that her abortion outcount was imminent if access to food or water was withdrawn or ask for an explanation of this withdrawal. It is also a matter of public record that inmates are taken to RHS’ clinic in St. Louis for abortion
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outcounts. Family members and others in communication with an inmate seeking abortion, particularly those who are paying for her abortion, would be aware the procedure would occur within a relatively short period of time. Because the abortion outcount is tentative until RHS has received payment, there might well be communication between an inmate and persons outside the prison that an outcount was scheduled to occur in the near future.
Plaintiffs contend that because no escape or violence occurred during past abortion outcounts, prison officials’ professional judgments about security risks should not be considered. However, in Turner, the Supreme Court recognized that prison officials must retain the “ability to anticipate security problems.” 107 S.Ct. at 2262 (emphasis added). Prison officials need not refrain from adopting securitybased regulations until a tragedy has occurred; the Department has a duty to protect inmates and staff, and a compelling interest in safety and security.
Plaintiffs suggest that the evidence of protestor activity at the RHS clinic should not be considered because to do so would grant demonstrators a “heckler’s veto,” citing Lewis v. Wilson, 253 F.3d 1077, 1082 (8th Cir. 2001)(Appellee’s Br. at 34). However, Lewis stood for the proposition that the “mere possiblity” of a violent reaction to speech, as opposed to conduct, was not a constitutional basis for restricting plaintiff’s speech, absent evidence of intent to provoke a violent reaction
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or “personally abusive epithets” (fighting words) directed at a particular individual. 253 F.3d at 1081-82. The Department’s policy here is not based on concerns about the content of protestors’ speech; rather, there was evidence of specific protestor actions that raised security concerns. In addition, prison officials were justifiably concerned about risks inherent in escorting an inmate through or near a crowded public setting. (See Appellant’s Br. at 27-28).
In a footnote, Plaintiffs assert that the Department did not discuss the “particular days” on which RHS performs abortion procedures that require two days, and argue that Defendants cannot rely on this fact on appeal, citing Canada v. Union Elec. Co, 135 F.3d 1211 (8th Cir. 1997). (Appellee’s Br. at 35, n. 21). Canada is distinguishable because appellant had failed to respond to the summary judgment motion. 135 F.3d at 1213. In contrast, the Department raised the problematic nature of two-day abortions in summary judgment proceedings below. (App. 849, 889). This Court may properly consider Plaintiffs’ affidavit filed with the district court and included in the joint appendix with Plaintiffs’ consent. Fed. R. App. P. 10(a); cf. Huelsman v. Civic Center Corp., 873 F.2d 1171, 1175 (8th Cir. 1989) (affidavit not part of the original district court record would not be considered).
In the prison context, the elective termination of inmate pregnancies is fraught with consequences for prison staff, other inmates, for the penal system, and for
14

society. The evidence in this case demonstrated that transporting inmates outside the prison walls for elective abortions posed significant safety and security risks. The policy not to transport inmates for non-therapeutic abortions is rationally related to legitimate penological interests.
Plaintiffs disagree that means of exercising abortion rights remain available to inmates. Under the second Turner factor, prison officials should be accorded latitude where a regulation substantially restricts one particular manner of exercising a constitutional right, but alternative means of exercising the right remain open to inmates. Turner, 107 S.Ct. at 2262; Pell v. Procunier, 107 S.Ct. 2800, 2806 (1974). The Department’s policy allows inmates to be transported for abortions that are medically necessary due to a threat to the mother’s health or life.
In addressing the third Turner factor, the impact accommodating elective abortions will have on guards and other inmates, as well as resource allocation, Plaintiffs focus mainly on the financial cost of the journey to St. Louis. But, in addition to mere financial costs, transporting inmates for elective abortions exposes corrections officers and pregnant inmates to safety and security risks absent or more readily preventable inside prison and such transports impose additional burdens on accompanying corrections officers. Transporting inmates for elective abortions would have a significant ripple effect on use of WERDCC’s limited resources to
15

preserve security. The evidence showed an adverse impact on corrections officers from increased stress as a result of travel to St. Louis and from working longer shifts or overtime to accommodate medically unnecessary outcounts. App. 126, 150, 859, 864. The necessity of devoting substantial corrections staff time to accommodate an individual prisoner’s asserted right is evidence that accommodation of that right may have a significant ripple effect on corrections officers, inmates, and the allocation of prison resources. See Herlein v. Higgins, 172 F.3d 1089, 1091 (8th Cir. 1999).
Prison officials are also concerned about the potential adverse impact on the rights of other inmates. See Turner, 107 S.Ct. at 2262-63. Accommodating elective abortions consumes prison resources that could otherwise be used for medically necessary outcounts. App. 284, 288. Transporting inmates for non-medically necessary abortions could potentially require an outcount for needed medical care to be rescheduled. Where the asserted right is exercised at a significant cost to the liberty and safety of corrections officers and inmates, the third Turner factor weighs in favor of upholding the prison regulation. See Thornburgh v. Abbott, 109 S.Ct. 1874, 1884 (1989). In response to this evidence, Plaintiffs referenced some of the Department’s security procedures, but did not point to facts that would undermine prison officials’ expert opinion that outcounts for elective abortions pose unacceptable risks to safety and security, impose increased stress on officers, and can
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potentially interfere with other inmates’ receipt of necessary medical care. On this record, the district court should not have entered summary judgment against Defendants.
Plaintiffs suggest that the final Turner factor need not be considered in this case because the proposed accommodation need not be wholly new and the Department could simply return to providing outcounts for elective abortions as it had in the past. (Appellee’s Br. at 42-43). Plaintiffs appear to argue that they need not demonstrate alternative means of accommodating elective abortion – other than eliminating the policy – or that returning to the former policy of providing transportation and security for elective abortion would come at a de minimus cost to penological interests, because this Court has invalidated certain prison policies that presented unreasonable barriers to constitutional rights, citing Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997). (Appellee’s Br. at 42). But if a prison regulation is not reasonably related to a legitimate penological interest, that regulation will be invalidated under the first Turner factor. Turner, 107 S.Ct. at 2262. Where the relationship to the penological interest is so attenuated the policy is irrational, a prison regulation cannot be upheld. Id.
Brimeyer is factually inapposite to this case. In Brimeyer, there was binding precedent that the challenged policy banning all materials from a particular religious
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group was unconstitutional, prison officials were unable to point to any evidence that the materials caused racial tension or security problems, and prison officials considering the materials unanimously determined inmates should be able to receive them. 116 F.3d at 353-54. Thus, the judgment of prison officials did not weigh in favor of the challenged policy. This Court, reviewing a district court’s factual determinations following a trial, nevertheless stated in Brimeyer that whether the challenged rejection of the materials was an exaggerated response was a question “not free from doubt.” Id. at 352, 354. In contrast, the Department consistently applied its policy, which was based on the professional judgment of prison officials and supported by evidence of security concerns associated with abortion outcounts.
The Department’s policy does not violate the plaintiff class’s Fourteenth Amendment rights. Even if the right to elective abortion survives incarceration, there was more than sufficient evidence in the record to show that the policy was rationally related to the Department’s penological interest in security and reducing security risks to corrections officers, inmates, and members of the public. Accommodating elective abortions would have a significant ripple effect on the safety and liberty of corrections officers and inmates. Finally, Plaintiff have been unable to meet their burden of proposing an alternative means of accommodating elective abortion and cannot demonstrate that providing transportation and security for elective abortion
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outcounts would have a de minimus impact based on the evidence in the record. Accordingly, Defendants are entitled to judgment as a matter of law.
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II. The Department’s policy not to transport prisoners for abortions that are not medically necessary is consistent with the plaintiff class’s E ighth Amendment right to be free from cruel and unusual punishment because no serious medical need is involved. Plaintiffs contend that abortion “is a serious medical need” even in the absence of a treating physician’s judgment that termination of a particular pregnancy was medically indicated due to a threat to the health or life of the mother. (Appellee’s Br. at 48). Plaintiffs then assert that the Department’s policy constitutes deliberate indifference to that serious medical need. This Court has held that no “serious medical need” exists absent a physician’s diagnosis that treatment is required or unless the need is “so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). Although an inmate has an Eighth Amendment right to receive medically necessary care, the Eighth Amendment does not bestow on her any right to receive a particular or requested course of treatment. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Physicians remain free to exercise their medical judgment in determining an appropriate course of treatment for a prisoner. Id. Holding abortion to be a serious medical need where no treating
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physician has determined that an abortion is medically necessary would be inconsistent with Eighth Circuit precedent, as well as logically inconsistent.
As discussed in Appellant’s Brief, prenatal care is provided to all pregnant inmates. (Appellant’s Br. at 12-13, 37). Plaintiffs contend that some pregnancies may pose health risks for an individual. (Appellee’s Br. at 54). This is where the treating physician’s professional judgment comes into play. Continuing a pregnancy to term has proven health benefits. According to the National Cancer Institute, pregnancy and childbirth significantly reduce the risk of breast cancer and ovarian cancer. Pregnancy and Breast Cancer Risk (visited Dec. 6, 2006) available at: www .cancer.gov/cancertopics/factsheet/Risk/pregnancy; see also http://ctep.info.nih.gov/resources/gcig/news072004.html (visited Dec. 6, 2006)(large study published in medical journal found reduced ovarian cancer risk for women who had given birth versus women who had never born a child, showing increased protection with additional births and with incidence of childbirth past age 35). Pregnancy has been positively correlated with marked reductions in the relapse rate of women with multiple sclerosis, especially during the second and third trimesters. Sandra Vukusic et al., Pregnancy and Multiple Sclerosis (the PRIMS study): clinical predictors of post-partum relapse, 127 BRAIN 1353-60 (2004), available at: http://brain.oxfordjournals.org/cgi/content/abstract/awh152v1 (visited Dec. 6, 2006).
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Pregnancy also appears to have a positive impact on rheumatoid arthritis due to pregnancy related changes in the body’s immune response. See C Lopez et al., Variations in chemokine receptor and cytokine expression during pregnancy in multiple sclerosis patients, 12 MULTIPLE SCLEROSIS 421-27 (2006) (positive impact of pregnancy on T cell-mediated autoimmune diseases including multiple sclerosis and rheumatoid arthritis), see supra BRAIN website for article link.
Plaintiffs also assert that elective abortions are the only elective medical treatment that the Department of Corrections completely prohibits. They contend that for all elective procedures except abortion, "[e]ven if CMS characterizes particular medical care as ‘elective,’ the physicians providing care to DOC inmates retain the discretion to authorize treatment." Appellees’ Brief at 55, n. 32. However, the deposition testimony that seems to form the basis for Plaintiffs’ contention ultimately does not support this assertion, because Dr. Conley testified that where CMS administration and treating physicians disagree on whether a procedure is medically needed or simply elective, the medical judgment of the treating physician controls. App. 650 (Dep. of Conley at 33), 655 (Dep. of Conley at 53), 656 (Dep. of Conley at 57). Similarly, if the attending physician determined an inmate had a medical need for an abortion, the Department would transport her whether or not anyone else
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believed the procedure was “elective.” App. 695 (Dep. of Long at 95); App. 670-71 (Procedure IS 11-58, III.C, attached as Dr. Conley Dep. Ex. 3).
This deference to the judgment of the attending physician also fully addresses the concerns of the amici medical organizations. These amici characterize the Department’s position to be that a non-therapeutic abortion cannot constitute a serious medical need because such abortions are "elective." They then cite several cases in support of their argument that an "elective" medical treatment can still be a serious medical need. The amici, however, misread the Department ’s argument. The conclusion that non-therapeutic abortions are not serious medical needs is not based on any designation of the procedure as an "elective" one1 but on the medical determination of the treating physician that the procedure is not medically necessary. A procedure that is not medically necessary cannot be a serious medical need. If, on the other hand, the treating physician determines that a prisoner does have a medical
1The defendant Corrections officials also note that they are using the term “elective” in a different sense than are the plaintiffs, the amici, and the courts whose decisions they cite. The Corrections officials are using “elective” as a synonym for “non-therapeutic,” which means “[h]aving healing or curative powers,” American Heritage Dictionary 1260 (2d College Ed.) (conversing definition of “therapeutic” due to the prefix “non”), or, in other words, to mean not medically necessary. Plaintiffs, amici, and the decision they cite use “elective” in the sense of a procedure that, while healing or curative, is not necessary at this moment (i.e., is not an emergency).
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need for an abortion and directs that an abortion be performed, the abortion will be provided, with the Department providing transportation.
The Department does not interfere with physicians’ medical judgment. If there were a medical reason for a prisoner to have an abortion, the policy would permit it. The policy does not deny Plaintiffs necessary medical care and does not display deliberate indifference to the serious medical needs of pregnant inmates. For these reasons, the policy does not violate the Eighth Amendment and the district court should have entered summary judgment in Defendants’ favor.
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CONCLUSION For the reasons discussed above and in the Main Brief, Appellants urge this Court to reverse the district court’s entry of summary judgment against them and to remand this case to the district court with instructions to enter judgment in their favor.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRICHETT Assistant Attorney General Missouri Bar No. 33848
EMILY A. DODGE Assistant Attorney General Missouri Bar No. 53914 Post Office Box 899 Jefferson City, MO 65102 Phone: (573) 751-3321 Fax: (573) 751-9456 ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE I hereby certify that the text of the foregoing document, excluding the Table of Contents, Table of Authorities, and this Certificate of Compliance, contains 4298 words of proportional spacing as determined by the automated word count of the WordPerfect 9 word processing system used and has 14-point size, and that the diskette submitted with the instant brief has scanned for viruses and is virus-free. I further certify that two true and correct copies of this brief and a 3 1/2 inch, labeled diskette containing this brief were mailed, postage prepaid, this day of December, 2006, to:

Thomas M. Blumenthal 165 North Meramec Ave., Sixth Floor St. Louis, MO 63105
James G. Felakos American Civil Liberties Union of
Easter Missouri 4557 Laclede Avenue St. Louis, MO 63108

Diana Kasdan Jennifer Nevins Talcott Camp Chakshu Patel American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004

Assistant Attorney General 26

 
 No. 06-3108
IN THE
United States Court of Appeals for the Eighth Circuit

JANE ROE, individually and on behalf of all others similarly situated, Plaintiff-Appellee,
v. LARRY CRAWFORD, Director of the Missouri Department of Corrections; and CYNTHIA PRUDDEN, Acting Superintendent, Women’s Eastern Reception,
Diagnostic and Correctional Center, in her official capacity, Defendants-Appellants.
Appeal from the United States District Court For the Western District of Missouri, Central Division

BRIEF FOR CHICAGO LEGAL ADVOCACY FOR INCARCERATED MOTHERS, JOHN HOWARD ASSOCIATION OF ILLINOIS, LEGAL SERVICES FOR PRISONERS WITH CHILDREN, NATIONAL ASSOCIATION OF SOCIAL
WORKERS, NATIONAL ASSOCIATION OF SOCIAL WORKERS—MISSOURI CHAPTER, STOP PRISONER RAPE, AND WOMEN’S PRISON ASSOCIATION AS
AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE AND AFFIRMANCE

Dated: December 11, 2006

Carl Micarelli Alison Mikkor Terrianne Muenzen DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, N.Y. 10022 (212) 909-6000 Counsel for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Each of the amici curiae herein is a not-for-profit organization. None has any parent corporation. None has any capital stock held by a publicly traded corporation.

TABLE OF CONTENTS
STATEMENT OF INTEREST..................................................................................1
SUMMARY OF ARGUMENT .................................................................................4
ARGUMENT .............................................................................................................5
I. The Policy Jeopardizes the Rehabilitation of Women Prisoners by Overriding the Autonomous Decisions They Have Made About Their Own Well-Being...............................................................................7
A. The Legitimate Penological Interest in Rehabilitation Is Achieved by Instilling Self-Sufficiency and Independence in Prisoners. ............................................................................................7
B. The Policy Directly Undermines the Self-Sufficiency and Independence of Pregnant Inmates...................................................10
II. The Policy Places an Extreme Burden on Women Prisoners and Their Families...........................................................................................13
A. Factors Beyond a Prisoner’s Control Make It Difficult to Maintain the Parent-Child Relationship From Prison. .....................13
B. Women Prisoners Are Often Barred by Law from Parenting the Children to Whom They Gave Birth. .........................................17
C. The Challenge of Parenting from Prison Results in Significant Harm to Some Women Prisoners and Makes Rehabilitation More Difficult...................................................................................19
III. The Policy Exacerbates the Existing Obstacles to a Woman Prisoner’s Successful Reentry Into Society. ............................................21
A. Women in Prison Already Face Substantial Obstacles With Respect to Supporting Themselves and Their Families. ..................21
1. Women Prisoners Face Serious Economic and Educational Barriers to Self-Sufficiency..................................22
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2. The Majority of Women Prisoners Must Also Overcome Mental Health Conditions, Substance Abuse, and Experiences of Sexual and Physical Abuse..............................23
B. The Policy Exacerbates These Existing Obstacles to Successful Community Reentry. ......................................................25
CONCLUSION ........................................................................................................30
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TABLE OF AUTHORITIES Federal Cases
Bellotti v. Baird, 443 U.S. 622 (1979).....................................................................12 Planned Parenthood v. Casey, 505 U.S. 833 (1992)..................................................6 Roe v. Wade, 410 U.S. 113 (1973) ............................................................................6 Thornburgh v. American College of Obstetricians and Gynecologists,
476 U.S. 747 (1986) ...............................................................................................7 Turner v. Safley, 482 U.S. 78 (1987).....................................................................6, 7
Federal Statutes 21 U.S.C. § 862a ......................................................................................................27 42 U.S.C. § 13661....................................................................................................26 42 U.S.C. § 1437d(l)(8) ...........................................................................................27 42 U.S.C. § 675(5) ...................................................................................................17 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89,
111 Stat. 2115 .......................................................................................................17 Fed. R. App. P. 29....................................................................................................32 Fed. R. App. P. 32....................................................................................................32
State Statutes Mo. Ann. Stat. § 211.447 .........................................................................................17
Other Authorities Patricia Allard, The Sentencing Project, Life Sentences: Denying Welfare
Benefits to Women Convicted of Drug Offenses (2002), available at http://www.soros.org/initiatives/baltimore/articles_publications/ publications/lifesentences/03-18-03atriciaAllardReport.pdf ...............................27
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American Civil Liberties Union, Break the Chains, & Brennan Center at NYU School of Law, Caught in the Net: The Impact of Drug Policies on Women and Families (2004), available at http://www.aclu.org/drugpolicy/ gen/23513pub20050315.html ...............................................................................19
Amnesty International, Not Part of My Sentence: Violations of the Human rights of Women in Custody, AMR 51/001/1999 (1999), available at http://web.amnesty.org/library/Index/engAMR510011999 .................................24
James Austin et al., National Council on Crime and Delinquency, Female Offenders in the Community: An Analysis of Innovative Strategies and Programs (1992), available at http://www.nicic.org/pubs/1992/ 010786.pdf............................................................................................9, 19, 24, 28
Allen J. Beck and Paige Harrison, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 214646, Sexual Violence Reported by Correctional Authorities, 2005 (2006), available at http://www.ojp.usdoj.gov/bjs/ abstract/svrca05.htm .............................................................................................24
Barbara Bloom et al., National Institute of Corrections, U.S. Department of Justice, Gender-Responsive Strategies: Research, Practice and Guiding Principles for Women Offenders (2003), available at http://www.nicic.org/pubs/2003/018017.pdf ....................... 10, 19, 20, 22, 24, 29
Jennifer Clarke, et al., Reproductive Health Care and Family Planning Needs Among Incarcerated Women, 96 Am. J. Pub. Health 834...................................29
Robert W. Dumond, The Impact and Recovery of Prisoner Rape (2001), available at http://www.spr.org/pdf/Dumond.pdf ................................................11
Natasha A. Frost et al., Women’s Prison Association, Hard Hit: The Growth in the Imprisonment of Women (2006), available at http:// www.wpaonline.org/institute/hardhit/index.htm..................................................29
Lawrence A. Greenfeld & Tracy L. Snell, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 175688, Women Offenders (2000), available at http://www.ojp.usdoj.gov/bjs/abstract/wo.htm.....7, 22, 25, 26, 28, 30
J. Creasie Finney Hairston, Prisoners and Families: Parenting Issues During Incarceration (2002), available at http://www.urban.org/uploadedPDF/ 410628_PrisonersandFamilies.pdf .....................................................16, 18, 19, 20
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Ronnie Halperin & Jennifer L. Harris, Parental Rights of Incarcerated Mothers with Children in Foster Care: A Policy Vacuum, 30 Feminist Studies 339 .........................................................................................15, 17, 18, 23
Caroline Wolf Harlow, U.S. Department of Justice, Bureau of Justice Statistics, Education and Correctional Populations (2003), available at http://www.ojp.usdoj.gov/bjs/abstract/ecp.htm..............................................22, 26
Amy E. Hirsh et al., Center for Law and Social Policy, Every Door Closed: Barriers Facing Parents With Criminal Records (2002), available at http://www.clasp.org/publications/every_door_closed.pdf ...............18, 26, 27, 28
Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (1996), available at http://hrw.org/reports/1996/Us1.htm..............24
Doris J. James & Lauren E. Glaze, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 213600, Mental Health Problems of Prison and Jail Inmates (2006), available at http://www.ojp.usdoj.gov/bjs/abstract/ mhppji.htm......................................................................................................23, 28
Candace Kruttschnitt & Rosemary Gartner, Women's Imprisonment, 30 Crime & Just. 1 (2003) ..........................................................................9, 27, 29
Susan F. McClanahan, et al., Pathways into Prostitution Among Female Jail Detainees and Their Implications for Mental Health Services, 50 Psychiatric Services 1606 (1999) ....................................................................11
Christopher J. Mumola, U.S. Department of Justice, Bureau of Justice Statistics, Incarcerated Parents and Their Children, NCJ 182335 (2000), available at http://www.ojp.usdoj.gov/bjs/abstract/iptc.htm..............15, 16, 22, 23
National Association of Social Workers, Social Work Speaks (7th ed. 2006) .........3
Marsha Rosenbaum, Women: Research and Policy, Part I, in Substance Abuse, A Comprehensive Textbook (3d ed. 1997)..............................................25
Rachel Roth, Justice Denied: Violations of Women’s Reproductive Rights in the United States Prison System (2004), at http://www.prochoiceforum .org.uk/psy_ocr10.asp...........................................................................................12
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Jeremy Travis et al., Urban Institute, Justice Policy Center, Families Left Behind: The Hidden Costs of Incarceration and Reentry (2005), available at http://www.urban.org/uploadedPDF/310882_families_left_behind .pdf ......................................................................................................15, 16, 17, 26
David B. Wexler, Therapeutic Jurisprudence and Readiness for Rehabilitation, Univ. of Ariz. Legal Studies Discussion Paper No. 06-32 (2006), available at http://www.law.arizona.edu/faculty/FacultyPubs/ Documents/Wexler/ALS06-32.pdf.......................................................................12
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STATEMENT OF INTEREST All parties have consented to the filing of this brief. The amici submitting this brief are a diverse group of not-for-profit social service, advocacy, and professional organizations concerned in various ways with assisting incarcerated or recently incarcerated women. These organizations have extensive and longstanding experience with the difficulties that women prisoners face in maintaining family ties while in prison and in seeking to reintegrate themselves into society after release. The amici submit this brief to highlight the devastating impact that Missouri’s challenged policy will have on women prisoners and to explain how the policy seriously undermines the important penological interest in rehabilitation. Chicago Legal Advocacy for Incarcerated Mothers (“CLAIM”) provides legal services to imprisoned mothers and their children. CLAIM offers law classes to educate mothers to make sound decisions about their children’s placement and to empower women to take steps to protect their parental rights. Through legal aid, CLAIM also enables mothers to obtain guardianship for their children by trusted relatives or friends, avoid foster care placement when possible, enforce motherchild visitation rights, divorce abusive spouses, and reunite with their children upon release.

The John Howard Association of Illinois (“JHA”) has advocated for people in prison, jail, and juvenile correctional facilities for more than a century. JHA promotes fair, humane, and effective correctional policies; educates and counsels incarcerated people, their families, and members of the public; and actively monitors facilities through scheduled visits to inspect conditions.
Legal Services for Prisoners With Children (“LSPC”) is a not-for-profit organization serving incarcerated parents and their family members, and it focuses primarily on women prisoners and their families. LSPC provides legal advice and referrals to prisoners and their loved ones around family law matters, including parental rights. As part of its mission, LSPC seeks to improve medical care for prisoners, help incarcerated mothers maintain ties to their children, assist incarcerated survivors of domestic violence, and support incarcerated women who are advocating for reform within the prison community.
The National Association of Social Workers (“NASW”), established in 1955, is the largest association of professional social workers in the world, with 150,000 members and chapters throughout the United States and in Puerto Rico, Guam, and the Virgin Islands. The Missouri Chapter of NASW has more than 2,400 members. With the purpose of developing and disseminating standards of social work practice while strengthening and unifying the profession as a whole, NASW provides continuing education, enforces the NASW Code of Ethics,
2

conducts research, publishes books and studies, promulgates professional criteria, and develops policy statements on issues of importance to the social work profession. Among these is the NASW policy statement, Correctional Social Work, which recognizes that female prisoners present unique situations requiring intervention, including pregnancy. It directs that social workers must advocate for prisoners’ access to health care, medication, treatment, and support. Social Work Speaks 69 (7th ed. 2006). Social workers fill the majority of clinical positions in the detention and corrections field, id., and thus are uniquely qualified to speak to the needs of the prison inmate population.
Stop Prisoner Rape (“SPR”) seeks to put an end to sexual violence against people in all forms of detention everywhere in the United States. SPR seeks to ensure government accountability for prisoner rape, change ill-informed public attitudes toward sexual assault behind bars, and promote access to resources for survivors of this type of violence.
Women’s Prison Association (“WPA”), founded in 1845, is the nation’s oldest service and advocacy organization working exclusively with women involved in the criminal justice system and their families. WPA provides direct assistance to approximately 2,500 women and their families each year. WPA offers services in prisons and in the community in response to five key areas of need: livelihood, housing, family, health and well-being, and criminal justice
3

compliance. WPA stresses self-reliance through the development of independent living skills, self-empowerment and peer support, and client involvement in the community.
SUMMARY OF ARGUMENT Through its policy of refusing to provide or transport women for medical care to terminate their pregnancies (“the Policy”), the Missouri Department of Corrections (“DOC”) compels women in its custody to continue their pregnancies to term against their will. As a result, the Policy imposes real hardships on these women while they are in prison and creates significant challenges for them that will continue even once they have served their sentence in full. Given the lifetime of repercussions that flow from the decision of whether or not a woman will carry her pregnancy to term, the person who will ultimately bear responsibility for these consequences—the woman herself—should be the one to make this decision, not DOC or the State of Missouri. At a minimum, limitations on a prisoner’s constitutional rights must be reasonably related to a legitimate penological interest. Barring women in prison from making independent choices about their pregnancies does not serve any such interest and indeed undermines the key penological interest in rehabilitation. Rehabilitation, long a principal objective of the criminal justice system, relies in large measure on an ex-offender learning to stand on her own two feet and to make
4

independent decisions about her own well-being. The Policy, however, is directly contrary to this key aspect of rehabilitation, as it deprives each pregnant inmate of the ability to effectuate one of the most deeply personal and life-affecting choices a woman may make in her life: the decision whether or not to carry a pregnancy to term. Additionally, the Policy undercuts pregnant inmates’ efforts at rehabilitation by imposing on them, against their will, the extremely difficult role of being parents from prison. The Policy also continues to threaten women’s efforts at successful rehabilitation by exacerbating the many obstacles that they face when they are released from prison and reenter society.
The District Court correctly held that the Policy is unconstitutional because it advances no legitimate penological interest and deprives prisoners of care for a serious medical need. Because the Policy impermissibly deprives the plaintiff class members of their constitutional rights, and, moreover, because it hinders their prospects of successful rehabilitation and reentry, it cannot be permitted to stand.
ARGUMENT Women prisoners cannot obtain abortion services inside any DOC facility, and DOC will not transport them off-site for such care. As a result, the Policy compels a prisoner to continue her pregnancy, even when she has decided not to carry it to term. Because the Policy absolutely denies a woman her right to terminate her pregnancy, it violates her rights under the Fourteenth Amendment.
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See Planned Parenthood v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973). But even if the Policy is judged under the more deferential standard applied to prisoners’ constitutional claims in Turner v. Safley 482 U.S. 78, 89 (1987), it cannot stand. Turner allows a prison policy to infringe constitutional rights that survive incarceration only if the policy reasonably relates to a legitimate penological interest. The Policy challenged here simply does not. Far from relating to a legitimate penological interest, the Policy affirmatively undermines one of the central and long-recognized goals of incarceration: the rehabilitation and successful reentry of prisoners into society. See, e.g., Turner, 482 U.S. at 9899.
The Policy undercuts the goal of rehabilitation in at least three ways. First, while rehabilitation relies in large part on a woman becoming self-sufficient and empowered to make decisions on her own behalf, the Policy takes away a woman’s ability to effectuate one of the most fundamental decisions that she has ever made about her life. Second, in many cases, the Policy imposes on women prisoners the enormous burden of parenting from prison, subjecting them to new psychological and financial pressures. Third, by compelling a prisoner to carry her pregnancy to term against her will, the Policy compounds the obstacles a prisoner faces upon her reentry into society.
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I. THE POLICY JEOPARDIZES THE REHABILITATION OF WOMEN PRISONERS BY OVERRIDING THE AUTONOMOUS DECISIONS THEY HAVE MADE ABOUT THEIR OWN WELL-BEING.
As the Supreme Court has recognized, “[f]ew decisions are more personal
and intimate, more properly private, or more basic to individual dignity and
autonomy than a woman’s decision . . . whether to end her pregnancy.”
Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 772
(1986). The Policy takes this deeply personal decision away from women, and in
doing so makes women less prepared to benefit from the rehabilitative programs
available to them.
A. The Legitimate Penological Interest in Rehabilitation Is Achieved by Instilling Self-Sufficiency and Independence in Prisoners.
The rehabilitation of prisoners has long been recognized as a legitimate and
important penological interest. See, e.g., Turner, 482 at 98-99 (evaluating role of
marriage in penological interest in rehabilitation).1 Indeed, DOC has made
1 Turner also recognized institutional security and punishment as legitimate penological interests. With regard to punishment, DOC does not and cannot contend that forcing a woman to carry a child to term and become a mother is an appropriate form of punishment or part of her lawfully imposed sentence. With regard to institutional security, Appellees’ brief discusses at length why the security justifications proffered by DOC are not rationally related to the Policy. Amici also note that pregnant prisoners do not pose any obvious security risk that requires that they be denied access to abortion services. Most women prisoners have been incarcerated for nonviolent crimes, and as a group they do not present a heightened risk of violent behavior. See Lawrence A. Greenfeld & Tracy L. Snell, U.S. Dep’t of Just., Bureau of Just. Stat., NCJ 175688, Women Offenders 5 (2000)
(continued)
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rehabilitation one of its central missions, recognizing that the development of selfsufficiency and independence in prisoners is central to the process. The DOC has established a Division of Offender Rehabilitative Services that seeks to “enhance offender self-sufficiency, reduce re-incarceration, and improve public safety.” Missouri Reentry Process, at DOC website, http://www.doc.mo.gov/reentry/ MissouriReentryProcess.htm (last visited Dec. 11, 2006). One of the goals of the Division is:
to ensure gender responsive programs are available to female offenders that provide health, mental health, self esteem, parenting, academic education, vocational education, substance abuse and life skills assistance to enhance their opportunities for successful transition back into society. Offender Rehabilitative Services: Women’s Programs, at DOC website, http://www.doc.mo.gov/division/rehab/women.htm (last visited Dec. 11, 2006). These DOC policies and procedures are consistent with social research findings on the factors that contribute to the successful rehabilitation of prison inmates. Placing an ex-offender in a position where she is empowered to make important decisions about her own well-being is a vital part of the rehabilitative
(less than 9% of felony convictions of women were for violent offenses). Thus, prohibiting female inmates from obtaining abortion care simply because it must be obtained off site bears no real relationship to the actual security risks posed by this particular population of inmates.
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process. Based on interviews with women who had been released from prison, researchers have found that “women who succeed afterward said that they had made the conscious decision to control their own lives.” Candace Kruttschnitt & Rosemary Gartner, Women’s Imprisonment, 30 Crime & Just. 1, 54 (2003) (citing Mary Eaton, Women After Prison (1993)). Similarly,
empowerment is critical to understanding how women make a successful transition into society. Empowerment for these women meant gaining intrapersonal, interpersonal, and social power that enabled them to make efficacious choices for everyday life. Id. (citing Patricia O’Brien, Making it in the “Free World”: Women in Transition from Prison (2001)). Precisely because independent decision-making is so important to a woman’s reintegration into society, the programs of many community groups who work with ex-offenders, including those of several of the amici, are designed to foster opportunities for women to make decisions on their own behalf. A report of the National Council on Crime and Delinquency found that the most successful community programs for women offenders returning to the community are those that stress accountability and seek to teach them coping and decision-making skills. See James Austin et al., Nat’l Council on Crime & Delinquency, Female Offenders in the Community: An Analysis of Innovative Strategies and Programs 21 (1992). For example, Women’s Prison Association’s Residential Alternative to
9

Incarceration Program, Hopper Home, stresses independent living skills. Women’s Prison Association has found that when a woman feels empowered to make everyday decisions about her life, her chances of successfully reintegrating into the community increase. A central component to this skill is being able to rely on one’s own values and navigate the most basic stresses of life.
B. The Policy Directly Undermines the Self-Sufficiency and Independence of Pregnant Inmates.
In contrast to DOC’s overall rehabilitative mission and the findings of those who study and assist offenders who are working toward rehabilitation, the Policy undermines independent decision-making by pregnant inmates. Policies and practices that take away women’s ability to make important life decisions for themselves exacerbate the emotional and psychological conditions that in many cases contributed to the criminal behavior for which they were incarcerated. As a Department of Justice study recognized, “retraumatizing people by placing them in environments that reinforce helplessness, scapegoating, isolation, and alienation must be viewed as antitherapeutic, dangerous, immoral and a violation of basic human rights.” Barbara Bloom et al., U.S. Dep’t. of Just., Nat’l. Inst. of Corrections, Gender-Responsive Strategies: Research, Practice and Guiding Principles for Women Offenders 60 (2003) (citation omitted).
Indeed, the majority of women in prison are survivors of sexual or physical abuse. See infra pp. 23-24. Depriving these women of the opportunity to make
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decisions about their own well-being can be especially traumatizing and harmful. Experiences of abuse are marked by the victims’ lack of control, and taking away women’s ability to make decisions about their own lives can aggravate the sense of trauma and lack of control survivors of abuse already feel. See, e.g., Robert W. Dumond, The Impact and Recovery of Prisoner Rape 9 (2001); see also Susan F. McClanahan et al., Pathways into Prostitution Among Female Jail Detainees and Their Implications for Mental Health Services, 50 Psychiatric Services 1606, 1613 (1999) (concluding that victims of childhood sexual abuse need long-term mental health services to “come to terms with their victimization and restore a sense of a mastery and control over their lives”). The Policy not only disregards these repercussions but compounds them: it creates yet another instance in which a survivor of abuse will be denied control over her personhood.
Unnecessarily limiting a woman prisoner’s ability to make decisions on her own-behalf, as the Policy does, can also derail the process of rehabilitation more generally. As one scholar explains:
Treating an offender with respect, according the offender ‘voice’, and genuinely attending to (‘validating’) that voice are key elements. Offenders are accordingly more likely to be primed for undertaking rehabilitative efforts if those elements are in place. If they are not—if the offender feels he or she was mistreated, ignored or got a raw deal—the rehabilitative prospects may be dramatically lessened.
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David B. Wexler, Therapeutic Jurisprudence and Readiness for Rehabilitation, Univ. of Ariz. Legal Studies Discussion Paper No. 06-32, at 3 (2006). By denying pregnant prisoners any input into a decision that will impact their well-being for the rest of their lives, the Appellants’ Policy jeopardizes the rehabilitation of each of those women in precisely the way that Wexler discusses.
Moreover, the harm that the Policy poses in this respect is particularly grave, since by prohibiting a woman from exercising her decision not to continue a pregnancy while she is in prison, the Policy often will deny her the opportunity to ever effectuate her choice and subject her to forced parenthood: “[T]he abortion decision is one that simply cannot be postponed, or it will be made by default with far-reaching consequences.” Bellotti v. Baird, 443 U.S. 622, 643 (1979). The sentences of the vast majority of women prisoners are far longer than the short period of time within which a woman can effectively, safely and legally obtain the medical care necessary to end a pregnancy. Rachel Roth, Justice Denied: Violations of Women’s Reproductive Rights in the United States Prison System, (2004), at http://www.prochoiceforum.org.uk/psy_ocr10.asp (last visited Dec. 11, 2006). As a result, if women are denied access to abortion services while they are in prison, an overwhelming number of them will be prevented from ever safely terminating their pregnancies.
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In all of the ways detailed above, by denying pregnant inmates the ability to decide whether or not to carry a pregnancy to term, the Policy purposelessly deprives them of a critical component of the self-determination that is central to their effective rehabilitation. II. THE POLICY PLACES AN EXTREME BURDEN ON WOMEN PRISONERS AND
THEIR FAMILIES. The Policy also places a substantial hurdle in pregnant inmates’ path to rehabilitation by foisting on them the enormous demands that come with parenting from prison. A combination of practical and legal barriers impose extreme obstacles to parenting from prison. To add the consequences of forced childbearing on top of these hurdles will subject pregnant inmates to enormous— and, in some cases, insurmountable—obstacles to their successful rehabilitation and to maintaining parent-child relationships. A. Factors Beyond a Prisoner’s Control Make It Difficult to
Maintain the Parent-Child Relationship From Prison. A host of factors over which a prisoner has no control make it difficult to parent from prison. At the most fundamental level, the physical restrictions that are inherent to incarceration sharply circumscribe a prisoner’s opportunity to develop and maintain contact with her child. The majority of mothers in prison are denied any type of regular, physical contact with their children. As a result,
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prisoners are prohibited from providing their children with the daily nurturing, affection, and care that children need.
From the time a prisoner gives birth, DOC policies and regulations make it difficult for her to bond with her newborn. DOC policies provide no additional time for a prisoner to stay with the newborn after she gives birth, and in fact require that the woman return to the facility within days of the birth. See DOC, Newborn Custodian/Guardian Consent and Authorization Form (indicating that a non-prisoner custodian or the Missouri Department of Family Services must assume custody of every newborn child immediately following birth). Neither WERDCC nor any other DOC facility for women has a nursery or other residential program that allows a newborn to live with his or her mother. See Response to Interrogatory #16 (JA 275-76).
DOC rules also preclude close contact between women prisoners and their children by limiting the number, length and frequency of the visits that a prisoner may receive. See WERDCC SOP 13-3.1, Offender Visitors (Aug. 1, 2005). DOC, like many other departments of corrections, has only limited visitation programs for children of incarcerated mothers. See, e.g., id. at 7, 15 (visiting sessions specifically for women prisoners and their children are offered only once a month, are not open to all prisoners with children, and prisoners must apply in advance to participate).
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DOC also imposes many of the same requirements on child and infant visitors to prison as it does on adult visitors, which can complicate visits between mothers and their children. For instance, a woman may request only one special visit with her newborn child. After that, she will not be able to see the infant at all until a complete “approved visiting application with a social security number” is submitted on the child’s behalf. Id. at 17-18.
In addition to the obstacles to parenting that prison policies impose on incarcerated mothers, there is a serious practical barrier to women receiving regular visits from their children: on average, women prisoners are housed more than 160 miles away from the place where their children live. Jeremy Travis et al., Urban Inst., Just. Policy Center, Families Left Behind: The Hidden Costs of Incarceration and Reentry 1 (2005); see also Christopher J. Mumola, U.S. Dep’t. of Just., Bureau of Just. Stat., NCJ 182335, Incarcerated Parents and Their Children 1, 5 (2000) (60% of parents in prison are held more than 100 miles from their last place of residence). These distances can make a child’s visits to a mother in prison prohibitively expensive and impossible to arrange within regular visiting hours.
Visits also depend entirely on the willingness and ability of the child’s caretaker to arrange them and to work within the restrictions governing prison visits. Ronnie Halperin & Jennifer L. Harris, Parental Rights of Incarcerated Mothers with Children in Foster Care: A Policy Vacuum, 30 Feminist Studies 339,
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342 (2004). Prison visits are not costless; they require money to pay for transportation, for meals and vending machine snacks during visits, and sometimes overnight lodging. J. Creasie Finney Hairston, Prisoners and Families: Parenting Issues During Incarceration 45 (2002). In some cases, a child’s guardian is unable to cover these costs. In others, guardians simply refuse to arrange visits or any other forms of contact between children and their mothers in prison. Id. at 46. If a guardian takes this stance, there is little that the mother can do from within prison to change the guardian’s decision.
Often, all of these factors interact to make it impossible for a mother to receive visits from her children while she is in prison, and the sad reality is that the majority of mothers in state prison have never been visited by their children. Mumola, supra, at 5.
Short of actual visits between mother and child, it can be difficult for incarcerated parents to maintain any kind of contact with their children. A Department of Justice study reports that more than 10% of mothers have had no contact at all with their children since being incarcerated. Id. Again, the reasons are often beyond the prisoner’s control. Prison rules often limit the number and frequency of phone calls and letters a prisoner can make and receive. Travis et al., supra, at 1. In addition, the high surcharges levied by many prisons and their telephone service providers make collect phone calls between a mother in prison
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and her child prohibitively expensive. Id. Contact by mail—a poor substitute for actual visits in any event—is also not an option if the children involved are young or unable to read and write.
B. Women Prisoners Are Often Barred by Law from Parenting the Children to Whom They Gave Birth.
The limitations imposed on a women’s ability to parent from prison not only make it difficult to create and maintain the mother-child relationship; they also often work in tandem with legal restrictions to force the termination of the mother’s parental rights altogether. For this reason, in many cases, the Policy will force women to give birth to children whom they will be legally prohibited from raising.
In particular, the Adoption and Safe Families Act of 1997, Pub. L. No. 10589, 111 Stat. 2115 (codified as amended in scattered sections of Title 42, U.S.C.) (“ASFA”), generally requires the state to petition to terminate the parental rights of a mother whose child has been in foster care for 15 of the past 22 months—and thereby make the child available for adoption—unless the child is in the care of a relative or friend. See 42 U.S.C. § 675(5)(E) (2006); Halperin & Harris, supra, at 344. Missouri has also enacted a nearly identical provision authorizing such petitions as a matter of state law. See Mo. Rev. Stat. § 211.447 (2006).
17

As an initial matter, the average prison stay of most women prisoners is longer than the 22 month period within which termination procedures are required to begin. Hairston, supra, at 47. While ASFA grants some discretion to state courts and child welfare agencies to consider the specific circumstances of each parent’s case, in practice they often do not exercise such discretion, they apply time deadlines strictly, and they regard adoption as the only way to meet ASFA’s goal of promoting “permanency” for the child. Amy E. Hirsh et al., Center for Law and Social Policy, Every Door Closed: Barriers Facing Parents With Criminal Records, 64-65 (2002).
Moreover, child welfare agencies often set formal requirements that a parent must fulfill in order to receive an exception from ASFA’s termination provisions. To avoid having their rights terminated in many cases, imprisoned mothers must participate in case planning, remain involved in their children’s lives, and demonstrate their commitment and ability to reform. Halperin & Harris, supra, at 340. These are extremely difficult conditions to fulfill while incarcerated for a variety of reasons, including physical distance, lack of ability to communicate with the case worker and the child, and prisoners’ limited access to specific programs. Id. at 343. As a result, a woman often has no meaningful opportunity to prevent the permanent termination of her parental rights and the adoption of her children by strangers.
18

C. The Challenge of Parenting from Prison Results in Significant Harm to Some Women Prisoners and Makes Rehabilitation More Difficult.
The practical and legal barriers that prevent a woman from maintaining a close relationship with her child while she is in prison can be psychologically and emotionally devastating for her. Hairston, supra, at 47 (“Incarcerated mothers cite separation from their children as one of the most difficult aspects of imprisonment.”); see also ACLU et al., Caught in the Net: The Impact of Drug Policies on Women and Families 49 (2004) (“Incarcerated mothers experience significant emotional trauma when separated from their children, contributing to depression, loneliness and despair.”); Bloom et al., supra, at 56 (“Many of these women felt enormous guilt about being absent from their children’s lives and worry about whether they would regain custody of their children following their release.”). The extreme emotional trauma that women in prison suffer as a result of being separated from their children leads to substantial anxiety that can give rise to depression and other mental health problems. Hairston, supra, at 47; see also Austin et al., supra, at 4.
Barriers to maintaining relationships with their children not only inflict severe mental distress on women prisoners but also hurt their chances of rehabilitation. A study from the Department of Justice’s National Institute of Corrections determined that
19

there is significant evidence that the mother-child relationship may hold significant potential for community reintegration. Incarcerated women tend to experience a sense of isolation and abandonment while in prison because of their inability to keep their families together. Research demonstrates that recidivism is less likely among both male and female offenders who maintain ties to their families and communities during incarceration. Bloom et al., supra, at 57. Similarly, another researcher in the field of corrections
found that “research on female offenders identified family process variables as the
strongest predictors of female offenders’ success and . . . found family
relationships to have a significant influence on relapse prevention among
parolees.” Hairston, supra, at 43.
In light of the challenges that come with being a parent from prison and the
likelihood in many cases that a woman will not legally be permitted to parent a
child, the Policy places pregnant prisoners who have decided to terminate their
pregnancies in an untenable position. A woman who chooses to terminate her
parental rights, must nevertheless suffer the permanent injury of having been
forced to carry a pregnancy to term against her will. A woman—having been left
no option but to carry to term—who chooses to maintain her legal rights over her
newborn will be subject to the significant distress that comes from being separated
(perhaps permanently and by law) from her child, which in itself is a psychological
injury that can derail her rehabilitation.
20

* * * Taken together, these practical and legal barriers can be devastating to an incarcerated mother’s ability to care for and form intimate relationships with her existing children and to her ability to succeed in her own rehabilitation. In light of these consequences it is difficult—indeed, impossible—to imagine a legitimate reason DOC imposes a Policy of forcing unwanted parenthood on pregnant inmates. III. THE POLICY EXACERBATES THE EXISTING OBSTACLES TO A WOMAN PRISONER’S SUCCESSFUL REENTRY INTO SOCIETY. When a woman is released from prison, she faces a number of challenges as she tries to reestablish herself in the community. The obstacles to successful reentry that she already faces are amplified by the Policy, which demands that a woman also take into account a child that she was forced to bear while in custody. A. Women in Prison Already Face Substantial Obstacles With
Respect to Supporting Themselves and Their Families. The vast majority of incarcerated women come to prison from disadvantaged social and economic backgrounds and carry with them experiences of past abuse and mental illness. Together, these factors make it very difficult for women prisoners to support themselves and their existing families, both while they are incarcerated and when they are released.
21

1. Women Prisoners Face Serious Economic and Educational Barriers to Self-Sufficiency.
Women prisoners face direct barriers to financial self-sufficiency in the form of low educational attainment and high unemployment rates. Approximately 40% of women in state prisons across the country have not graduated from high school, and more than 13% of women prisoners in state facilities have not completed school beyond the eighth grade. Caroline Wolf Harlow, U.S. Dep’t. of Just., Bureau of Just. Stat., NCJ 195670, Education and Correctional Populations 5 (2003). Prior to going to prison, many women prisoners were unemployed or worked at low paying jobs. Only about four of every ten women in state prison were employed full time prior to their arrest and almost 40% of women in state prison had an income of less than $600 per month before their incarceration. Greenfeld & Snell, supra, at 8.
It is hard enough for women to support themselves with little or no steady income, but most women prisoners also already have children who rely on them for support. More than 70% of women in prison have children, id. at 7, and the number of children with a mother in prison nearly doubled in the eight years between 1991 and 1999, Mumola, supra, at 2. Many of these women are single parents who must shoulder the burden of raising their children alone. Close to half of women prisoners with children were the only parent living with their children in the month before their arrest. Id. at 4; see also Bloom et al., supra, at 56. Once a
22

woman enters a state correctional facility, she often must bear sole responsibility for arranging care for the children. Fewer than three out of ten mothers in state prison reported that their children lived with their father during their incarceration (in contrast, nine in ten fathers in state prison reported that their children were living with their mother). Mumola, supra, at 4. While most children are taken in by their grandparents or another family member, approximately 10% of children with mothers in prison go into foster care. See id., at 4; see also Halperin & Harris, supra, at 340. Regardless of where a child is placed, a mother’s incarceration is a difficult situation for all involved, since the mother is unable to raise her children or provide them with steady financial support as long as she is incarcerated.
2. The Majority of Women Prisoners Must Also Overcome Mental Health Conditions, Substance Abuse, and Experiences of Sexual and Physical Abuse.
Most women prisoners also have some form of serious mental health condition. A study by the Department of Justice determined that an estimated 73% of women in state prisons and 60% of women in federal prisons currently have a verifiable mental health condition. Doris J. James & Lauren E. Glaze, U.S. Dep’t. of Just., Bureau of Just. Stat., NCJ 213600, Mental Health Problems of Prison and Jail Inmates 4 (2006). (This is much higher than the rate at which incarcerated men suffer from mental health problems. See id., at 1.)
23

In many cases, women prisoners’ mental health conditions are linked to sexual and physical abuse that they experienced. As many as 88% of incarcerated women have been the victims of prior sexual or physical violence. Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons 23 (1996) [hereinafter HRW Report]; see also Austin et al., supra, at 5 (earlier study found that over half of all female offenders had been victims of physical abuse and 36% had been sexually abused). Many of those women now suffer from a significant mental disorder. Bloom et al., supra, at 53.
Sexual abuse of women prisoners by corrections staff has also been widely documented across the country. See Allen J. Beck & Paige M. Harrison, U.S. Dep’t. of Just., Bureau of Just. Stat., NCJ 214646, Sexual Violence Reported by Correctional Authorities, 2005 14 (2006) (54 complaints of sexual misconduct between staff and inmates in Missouri were made in 2005); Amnesty International, AMR 51/001/1999, “Not Part of My Sentence”: Violations of the Human Rights of Women in Custody (1999). While there are no precise statistics on the number of women who have become pregnant as a result of sexual misconduct by corrections’ staff, several pregnancies resulting from rapes by staff members have been reported at facilities for women across the country. See HRW Report 105, 162, 201, 276, 347, 425 (1996) (documenting cases of prisoners impregnated by correctional employees in all six of the state systems investigated in the report).
24

Furthermore, many women in prison—who already face the combined challenge of dealing with a history of abuse and an existing mental health problem—must also grapple with problems relating to substance abuse and addiction. Researchers have suggested a direct relationship between abuse experienced by women and problematic drug use. See Marsha Rosenbaum, Women: Research and Policy, Part I, in Substance Abuse, A Comprehensive Textbook 654-665 (3d ed. 1997). But no matter what the specific reasons that an individual woman may have begun to abuse drugs, the overall number of women prisoners with a substance abuse problem is high. Roughly six out of ten women in state prison used drugs in the month before their offense, and five out of ten women prisoners describe themselves as daily users of drugs. Greenfeld & Snell, supra, at 9.
The damaging trio of serious mental illness, a history of sexual or physical abuse, and substance abuse present substantial challenges to women’s ability to support themselves and their families. Together, these factors make it even more difficult for women prisoners to overcome the economic and educational barriers to becoming self-sufficient that they already face.
B. The Policy Exacerbates These Existing Obstacles to Successful Community Reentry.
The difficulties that an incarcerated woman faces in supporting herself and her family and in overcoming past harms to her physical and emotional well-being
25

do not evaporate at the end of her sentence. When women are released from prison, they are confronted with new and additional challenges related to finding work, housing and a means of support while being labeled as ex-offenders. These challenges become more difficult to meet when a newly released woman must also assume responsibility for the care and support of a child.
Most women leave prison with few marketable skills and minimal education, making it difficult to find employment. See Hirsh et al., supra, at 11; see also Greenfeld & Snell, supra, at 8; Harlow, supra, at 1, 5. In addition, many employers refuse to hire persons with criminal records, which “typically create an employment barrier for the rest of their lives.” Hirsh et al., supra, at 14, 18-19. Legal prohibitions also prevent ex-offenders from joining certain professions and holding particular occupational licenses. Id. at 14; Travis et al., supra, at 7.
Moreover, the close to 40% of women offenders who are currently serving time for a drug offense, see Greenfeld & Snell, supra, at 5, Table 11, are barred from federally subsidized housing and other vital benefits that could help cover their basic living expenses and those of their families when they are released. Applicants who have engaged in certain types of criminal activity, including drug offenses, cannot live in Section 8 low-income housing, see 42 U.S.C. § 13661, and family members who are currently living in such housing face eviction if they
26

permit a woman who has been convicted of these crimes to live with them, see id. § 1437d(l)(8); see also Hirsh et al., supra, at 42.
Similarly, unless the state affirmatively passes legislation to opt out of the ban, women with felony drug convictions for conduct after August 22, 1996 are barred for life from receiving the benefits offered under the Temporary Assistance for Needy Families and Food Stamps programs. 21 U.S.C. § 862a(a)(1); see also Hirsh et al., supra, at 29. Missouri is one of the states that has elected to entirely deny benefits to former prisoners, and, thus, the federal lifetime ban on welfare benefits for former prisoners applies to women reentering the Missouri community from DOC custody. See Patricia Allard, The Sentencing Project, Life Sentences: Denying Welfare Benefits to Women Convicted of Drug Offenses 3, Table 1 (2002).
For those women who obtain custody of their children on release, it is often difficult to overcome these barriers to getting on their feet financially while trying to support and care for a child. See Kruttschnitt & Gartner, supra, at 55-56. This is so not only because of the financial resources necessary to raise a child but also because the obligations associated with parenting can themselves compete with the steps a woman ex-offender must take to become self-sufficient. For instance, the difficulty of finding adequate child care can make it hard for a released woman to find regular and well-paid work. Id., at 55. In other cases, the programs and
27

criteria a woman is required to fulfill in order to avoid the termination of her parental rights may conflict with the time she is required to spend in other programs to qualify for government benefits or to meet the conditions of her parole. See Hirsh et al., supra, at 64.
The Policy also makes it more difficult for former prisoners to successfully reintegrate into the community by compounding the psychological barriers to rehabilitation that they must grapple with upon their release. Many women prisoners are not emotionally prepared to take all of the steps they need to in order to become self-sufficient. See generally Austin et al., supra; Greenfeld & Snell, supra; James & Glaze, supra. In many cases, a woman must surmount a preexisting mental health condition, the aftermath of being physically or sexually abused, and a substance abuse problem, all at the same time.
By inflicting on a woman prisoner the additional emotional injury that results from being compelled to carry a pregnancy to term against her will, the Policy makes these obstacles all the more difficult to surmount. First, even if a woman does not seek custody of the child, she must deal with the emotional aftermath of being forced to give birth against her will. Alternatively, if a woman wants to regain custody of her child but is barred from doing so by ASFA and the related provisions of the state’s family law, the devastating psychological effects can seriously undermine her rehabilitation. Researchers have noted the strong
28

correlation between the termination of parental rights and increased rates of recidivism among women offenders. See, e.g, Bloom et al., supra, at 57. Even for women who choose to and are able to obtain custody of their children after they are released from prison, the Policy still extracts an emotional toll: “Relationships with children, which are a source of both stress and self-esteem while in prison, can be difficult to reestablish for women upon their release.” Kruttschnitt & Gartner, supra, at 56 (citation omitted).
* * * For all these reasons, the resulting injury to each individual woman prisoner harmed by the Policy will be devastating. Prison regulations such as the Policy are coming to have an impact on more and more women because of the rapid growth in the incarceration rate of women in the past three decades. A study by the Women's Prison Association determined that “[t]he number of women serving sentences of more than a year grew by 757 percent between 1977 and 2004— nearly twice the 388 percent increase in the male prison population.” Natasha A. Frost et al., Women’s Prison Ass’n., Hard Hit: The Growth in the Imprisonment of Women 9 (2006). As the ranks of women in prison have grown, so too has the number of women who have to make decisions about childbearing from prison. Nine percent of women are pregnant when they enter into custody. Bloom et al., supra, at 57; see also Jennifer G. Clarke et al., Reproductive Health Care and
29

Family Planning Needs Among Incarcerated Women, 96 Am. J. Pub. Health 834 (2006) (nationally between 6% and 10% of incarcerated women are pregnant at any point in time); Greenfeld & Snell, supra, at 8 (earlier study estimates that 5% of women in state prisons are pregnant when admitted). If prison regulations such as the Policy are validated, these women could each be forced to carry their pregnancies to term against their will, causing each of them and their existing families substantial harm and threatening the success of their efforts at rehabilitation.
CONCLUSION The Missouri Policy undermines the penological goal of rehabilitation without any legitimate justification, and it arbitrarily and needlessly imposes hardship and suffering on incarcerated women and their families. The Policy violates both the Fourteenth Amendment’s protection of liberty interests and the Eighth Amendment’s prohibition on cruel and unusual punishments, and it was properly enjoined. Amici respectfully urge the Court to affirm the District Court’s judgment.
30

Dated: December 11, 2006

Respectfully submitted,
/s/ Carl Micarelli__________________ Carl Micarelli Alison Mikkor Terrianne Muenzen2 DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, N.Y. 10022 (212) 909-6000
Attorneys for Amici Curiae Chicago Legal Advocacy for Incarcerated Mothers, John Howard Association, Legal Services for Prisoners with Children, National Association of Social Workers, National Association of Social Workers—Missouri Chapter, Stop Prisoner Rape, and Women’s Prison Association

2 Rosa Castello, whose admission to the Bar of the State of New York is pending, also assisted in the preparation of this brief.
31

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) because this brief contains 6,994 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 in 14-point Times New Roman. The CD ROM submitted with this brief has been scanned for viruses and is virus-free.

Dated: December 11, 2006

/s/ Carl Micarelli_____________________ Carl Micarelli
Attorney for Amici Curiae

32

 
 No. 06-3108
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
JANE ROE, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
V.
LARRY CRAWFORD, Director of the Missouri Department of Corrections, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Missouri, Central Division
BRIEF FOR AMICI CURIAE THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, THE AMERICAN MEDICAL
WOMEN’S ASSOCIATION, AND THE AMERICAN PUBLIC HEALTH ASSOCIATION IN SUPPORT OF PLAINTIFFS-APPELLEES
Kimberly A. Parker Counsel of Record
Jessica L. Waters WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Ave., N.W. Washington, D.C. 20006 (202) 663-6000
Counsel for Amici Curiae

TABLE OF CONTENTS
Page TABLE OF AUTHORITIES....................................................................................iii
STATEMENT OF INTEREST OF AMICI CURIAE............................................... 1
SUMMARY OF ARGUMENT................................................................................. 2
ARGUMENT............................................................................................................. 3
I. Access to Abortion Care, No Less Than Other PregnancyRelated Care, is a Serious Medical Need for Pregnant Women ..................... 4
A. Denying Access to Abortion Care Prevents a Woman from Obtaining Pregnancy-Related Care that Can Reduce Risks to Her Health and Life ................................................................ 5
B. DOC’s Policy Increases Health Risks to Women Who Decide to Terminate Their Pregnancies, Even If They Are Released While Still Pregnant ....................................................... 9
C. Denying Pregnant Women the Ability to Decide Whether or Not to Terminate a Pregnancy is Inconsistent with Good Medical Judgment and with Standard Medical Care ................11
1. Major Medical Groups Support Access to Abortion Care for Incarcerated Women...................................................11
2. Major Medical Schools and Professional Associations Teach Medical Professionals the Importance of Abortion Care as Part of the Standard of Care for Pregnant Women.....................................13
3. Leading Penal Standards Treat Abortion Care as a Serious Medical Need...............................................................16

II. DOC’s and Its Amici’s Characterization of Abortion as “Elective” Does Nothing to Undermine the Fact That It is a Serious Medical Need ...................................................................................18 A. Abortion Care is a Serious Medical Need ..........................................19 B. Providing Access for Abortion Care Does Not Afford Incarcerated Women Greater Rights than NonIncarcerated Women ...........................................................................23
CONCLUSION........................................................................................................ 27 CERTIFICATE OF COMPLIANCE PROOF OF SERVICE
ii

TABLE OF AUTHORITIES

CASES

Page(s)

Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991) ................................................21

Boyd v. Knox, 47 F.3d 966 (8th Cir. 1995)..............................................................20

Brock v. Wright, 315 F.3d 158 (2d Cir. 2003).........................................................19

Camberos v. Branstad, 73 F.3d 174 (8th Cir. 1995) ................................................. 3

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) ......................................................................................23

Delker v. Maass, 843 F. Supp. 1390 (D. Or. 1994).................................................19

Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999).........................................4, 10

Ellis v. Butler, 890 F.2d 1001 (8th Cir. 1989).....................................................4, 19

Estelle v. Gamble, 429 U.S. 97 (1976) ................................................................3, 23

Farrow v. West, 320 F.3d 1235 (11th Cir. 2003) ....................................................20

Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997)................................................... 4

H.L. v. Matheson, 450 U.S. 398 (1981)...................................................................10

Harrison v. Barkley, 219 F.3d 132 (2d Cir. 2000) ..................................................21

Hartsfield v. Colburn, 371 F.3d 454 (8th Cir. 2004)...............................................20

Henderson v. Harris, 672 F. Supp. 1054 (N.D. Ill. 1987).......................................21

Hewett v. Jarrard, 786 F.2d 1080 (11th Cir. 1986) ................................................20

Johnson v. Bowers, 884 F.2d 1053 (8th Cir. 1989)...........................................19, 22

Johnson v. Busby, 953 F.2d 349 (8th Cir. 1991) ....................................................... 3

iii

Koehl v. Dalsheim, 85 F.3d 86 (2d Cir. 1996) ........................................................21
McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) ...............................................................................................22
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) ................................................................4, 22, 24
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ...............................................................................................24, 25
Roberson v. Bradshaw, 198 F.3d 645 (8th Cir. 1999).............................................20
Roe v. Crawford, 439 F. Supp. 2d 942 (W.D. Mo. 2006) ......................................... 2
Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977)...........................................................23 Warren v. Fanning, 950 F.2d 1370 (8th Cir. 1991) .................................................. 3
Washington v. Dugger, 860 F.2d 1018 (11th Cir. 1989).........................................19
Women’s Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136 (D.R.I. 1982) ........................................................................................10
Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985), aff’d, 484 U.S. 171 (1987) .....................................................................................................10
OTHER AUTHORITIES Accreditation Council for Graduate Medical Education, Program
Requirements for Residency Education in Obstetrics and Gynecology (2005), available at http://www.acgme.org/ acWebsite/downloads/RRC_progReq/220pr705.pdf ....................................14
American Academy of Pediatrics and American College of Obstetricians and Gynecologists, Guidelines for Perinatal Care (5th ed. 2002).................................................................................................25
iv

American College of Obstetricians and Gynecologists, Special Issues in Women’ s Health, Health and Health Care of Incarcerated Adult and Adolescent Females (2005) ......................................................8, 13
American College of Obstetricians and Gynecologists, You and Your Baby: Prenatal Care, Labor and Delivery, and Postpartum Care, available at http://www.acog.org/publications/patient_ education/ab005.cfm (last visited Dec. 6, 2006)...........................................25
American College of Obstetricians and Gynecologists Statement of Policy, Abortion Policy (reaffirmed July 2004)............................................11
American Diabetes Association, Gestational Diabetes, available at http://www.diabetes.org/gestational-diabetes.jsp (last visited Dec. 6, 2006) ................................................................................................... 7
American Medical Women’ s Association, Policy Statement: Abortion (2000), available at http://www.amwa-doc.org/index.cfm? objectId=0A5BF4D4-D567-0B25-58C7E8584C98D43B........................5, 12
American Public Health Association Policy Statement: Safeguarding the Right to Abortion as Reproductive Choice (1989)..................................12
American Public Health Association Policy Statement: Support for Sexual and Reproductive Health and Rights in the United States and Abroad (2003), available at http://www.apha.org/legislative/policy/policysearch/index.cfm? fuseaction=view&id=1251 (2003) (reaffirming 1989 policy) ......................12
American Public Health Association, Standards for Health Services Correctional Institutions (2003)........................................................13, 25, 26
Andrea P. MacKay, et al., Pregnancy-Related Mortality From Preeclampsia and Eclampsia, 97 Obstetrics & Gynecology 533 (2001) .............................................................................................................. 9
Ashton, D., Prematurity-Infant Mortality: the Scourge Remains, 16 Ethn. Dis. 58 (2006) ........................................................................................ 9
Association for Reproductive Health Professionals Model Curriculum (2d ed. 2004)............................................................................................13, 14
v

Association of Professors of Gynecology and Obstetrics, Women’ s Health Care Competencies for Medical Students: Taking Steps to Include Sex and Gender Differences in the Curriculum (2005), available at http://wheocomp.apgo.org/competencytopic.cfm?topicid=32..................................................................................... 15
Bartlett, Linda A., et al., Risk Factors for Legal Induced AbortionRelated Mortality in the United States, 103 Obstetrics & Gynecology 729 (2004).................................................................................10
Clarke, Jennifer G., MD, et al., Reproductive Health Care and Family Planning Needs Among Incarcerated Women, 96 Am. J. of Public Health 834 (May 2006) ........................................................................ 8
Council on Resident Education in Obstetric and Gynecology, Educational Objectives: A Core Curriculum in Obstetrics and Gynecology (8th ed. 2005), available at http://www.gynob. emory.edu/pdf/creogeducationalobjectives.pdf (last visited Dec. 6, 2006) .................................................................................................15
Cunningham, F. Gary, et al., Williams Obstetrics (22d ed. 2005) ........................7, 8
Elam-Evans, Laurie D., et al., Abortion Surveillance-United States, 1999, in Surveillance Summaries, 51 MMWR (No. SS-9) (Centers for Disease Control and Prevention, Nov. 29, 2002), available at http://www.cdc.gov/mmwr/PDF/SS/SS5109.pdf ....................... 5
Federal Bureau of Prisons Policy: Birth Control, Pregnancy, Child Placement, and Abortion 6070.05(2) ......................................................17, 18
Finer, Lawrence B., et al., Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, 37 Perspectives on Sexual and Reproductive Health 110 (2005), available at http://www.guttmacher.org/pubs/journals/3711005.pdf ...............................22
Freudenberg, Nicholas, Adverse Effects of U.S. Jail and Prison Policies on the Health and Well-Being of Women of Color, 92 Am. J. of Public Health 1895 (2002) .............................................................. 9
vi

Grimes, D., Estimation of Pregnancy-Related Mortality Risk by Pregnancy Outcome, United States, 1991-1999, 194 Obstetrics & Gynecology 92 (2006)................................................................................. 6
Guttmacher Institute, Facts on Induced Abortion in the United States (May 2006), available at http://www.guttmacher.org/pubs/ fb_induced_abortion.pdf .............................................................................6, 7
Jiang, H.J., et al., Care of Women in U.S. Hospitals, 2000, HCUP Fact Book No. 3, AHRQ Publication No. 02-0044 (Agency for Healthcare Research and Quality, 2002), available at http://www.ahrq.gov/data/hcup/factbk3/factbk3.pdf ...................................... 7
Knight, Marian & Emma Plugge, Risk Factors for Adverse Perinatal Outcomes in Imprisoned Pregnant Women: A Systematic Review, 5 BMC Public Health 11(2005).......................................................25
Knight, Marian & Emma Plugge, The Outcomes of Pregnancy Among Imprisoned Women: A Systematic Review, 112 BJOG: An International Journal of Obstetrics & Gynecology 1467 (2005)..................... 8
National Commission on Correctional Health Care, Position Statement: Women’ s Health Care in Correctional Settings (2005), available at http://www.ncchc.org/resources/ statements/womenshealth2005.html .............................................9, 16, 17, 26
Pregnancy-Related Deaths Among Hispanic, Asian/Pacific Islander, and American Indian/Alaska Native Women - United States, 1991-1997, 50 MMWR (No. 18) (Centers for Disease Control and Prevention, May 11, 2001), available at http://www.cdc. gov/mmwr/PDF/WK/MM5018.pdf................................................................. 6
vii

STATEMENT OF INTEREST OF AMICI CURIAE1 The American College of Obstetricians and Gynecologists (ACOG), a non-profit educational and professional organization founded in 1951, is the leading professional association of physicians who specialize in the health care of women. Its more than 50,000 members, including 974 physicians in Missouri, represent approximately 90% of all board-certified obstetricians and gynecologists practicing in the United States. The American Medical Women’s Association (AMWA), founded in 1915, is an organization of women physicians and medical students dedicated to women’s health and the advancement of women in medicine. AMWA works to advance its goals at the local, national, and international level. The American Public Health Association (APHA) is the oldest, largest, and most diverse organization of public health professionals in the world. The Association works to protect all Americans, their families, and communities from preventable, serious health threats, and strives to ensure that community-based health promotion and disease prevention activities and preventative health services are universally available. Amici urge this court to affirm the judgment of the District Court for the
1 Pursuant to Fed. R. App. P. 29(a), Counsel for Amici has contacted the parties and obtained consent to file this brief.
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Western District of Missouri in favor of the plaintiffs.
SUMMARY OF ARGUMENT As the United States District Court for the Western District of Missouri correctly found, the Missouri Department of Corrections’ (“DOC”) policy prohibiting pregnant inmates from choosing abortion by refusing to transport them off-site for this medical care violates the Eighth Amendment. Roe v. Crawford, 439 F. Supp. 2d 942, 953 (W.D. Mo. 2006). Abortion care, no less than other types of pregnancy-related care, is a serious medical need, and the intentional denial of such care constitutes unconstitutional deliberate indifference. DOC’ s policy – which is, in essence, a policy of forced childbirth – prevents a woman from obtaining pregnancy-related care that can reduce the risks to her health and life, and ignores the unique health risks faced by pregnant incarcerated women. The health risks associated with continuing a pregnancy and childbirth, or of delaying abortion care, are significant for any pregnant woman, but, as DOC acknowledges of its own inmate population, the risks are often greater for incarcerated women. It is precisely because of these risks that expert professional medical groups, such as amici, leading medical schools, and other penal systems consider abortion care standard, essential health care that must be available to all women. DOC’ s policy ignores this medical expertise and is at odds with community standards. Finally, DOC’ s argument that “elective” abortion care
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cannot constitute a serious medical need ignores the case law directly on point and erroneously conflates the Eighth Amendment “ serious medical need” standard with a medical emergency standard.
ARGUMENT It is well-settled and undisputed that the Missouri Department of Corrections is obligated to “ provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976), and that a DOC policy or practice that fails to treat an inmate’ s “ serious medical need” runs afoul of the Eighth Amendment. Estelle, 429 U.S. at 106; Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991). The DOC argues that abortion care is not a serious medical need. But, as the policies, practices, and clinical experience of amici medical and public health groups demonstrate, abortion care, no less than other pregnancyrelated care, is a serious medical need and a basic component of health care for pregnant women. This Court has held that a medical need is “ serious” if it is “ 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.” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (quoting Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991)); see also Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (a serious medical need is one “ a reasonable doctor or
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patient would find important and worthy of comment or treatment” ). Abortion care clearly meets this standard. This Court has recognized that medical conditions that are far from emergent or life threatening can amount to serious medical needs. See, e.g., Ellis v. Butler, 890 F.2d 1001, 1003 n.1 (8th Cir. 1989) (“ We note that a medical condition need not be an emergency in order to be considered serious under Estelle.” ). And, as the Third Circuit has held, “ 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.’ ” Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 349 (3d Cir. 1987); see also Doe v. Barron, 92 F. Supp. 2d 694, 696-697 (S.D. Ohio 1999) (enjoining correctional facility from denying inmate access to abortion services and citing Lanzaro with approval). This Court should adopt the same standard. I. Access to Abortion Care, No Less Than Other Pregnancy-Related Care,
is a Serious Medical Need for Pregnant Women Unless she miscarries, a pregnant woman faces two options: carrying her pregnancy to term or ending it. Just as a woman who plans to continue her pregnancy needs medical treatment – to care for herself and her fetus in utero, as well as to deliver safely at term – a woman who chooses to terminate her pregnancy likewise needs medical attention. There is no medical basis for treating pregnancy termination as less serious than other pregnancy-related care.
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A. Denying Access to Abortion Care Prevents a Woman from Obtaining Pregnancy-Related Care that Can Reduce Risks to Her Health and Life
Preventing a woman from accessing abortion services denies her care that can significantly reduce the risks to her health and life that are posed by continuing a pregnancy through childbirth. Expert Report of Robert James Sokol, M.D., Civ. No. 05-4333-CV-C-DW (W.D. Mo., Feb. 9, 2006) (Sokol Report) ¶ 6 (JA 425). Pregnancy causes increased risk of serious medical complications and even, in some cases, death. American Medical Women’ s Association, Policy Statement: Abortion (2000), available at http://www.amwa-doc.org/index.cfm?objectId= 0A5BF4D4-D567-0B25-58C7E8584C98D43B (AMWA Policy Statement: Abortion) (“ Pregnancy . . . involves medical risk for a patient, ranging from minor physical inconveniences to death itself.” ); Sokol Report ¶ 1 (JA 423). The risk of death associated with carrying a pregnancy through childbirth is substantially higher than the risk of death associated with induced abortion: a woman is at least 10 times more likely to die from continuing a pregnancy through childbirth than from an induced abortion. Laurie D. Elam-Evans et al., Abortion SurveillanceUnited States, 1999, in Surveillance Summaries, 51 MMWR (No. SS-9) 3, 7, 28 (Table 19) (Centers for Disease Control and Prevention, Nov. 29, 2002), available at http://www.cdc.gov/mmwr/PDF/SS/SS5109.pdf (for period 1991 to 1997, average case-fatality rate for known legal abortion was 0.6 deaths per 100,000
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legal abortions); Pregnancy-Related Deaths Among Hispanic, Asian/Pacific Islander, and American Indian/Alaska Native Women - United States, 1991-1997, 50 MMWR (No. 18) 361, 361, 362 (Table 1) (Centers for Disease Control and Prevention, May 11, 2001), available at http://www.cdc.gov/mmwr/PDF/WK/ MM5018.pdf (for period 1991 to 1997, pregnancy-related mortality ratio for overall population of 11.5 deaths per 100,000 live births); see also Grimes, D., Estimation of Pregnancy-Related Mortality Risk by Pregnancy Outcome, United States, 1991-1999, 194 Obstetrics & Gynecology 92-94 (2006) (using national statistics to estimate mortality risk of various pregnancy outcomes from 1991-99 and finding that the “ relative risk associated with live birth was 12.4 times higher” than the risk of death “ associated with legal abortion” ); Guttmacher Institute, Facts on Induced Abortion in the United States (May 2006), available at http://www. guttmacher.org/pubs/fb_induced_abortion.pdf (“ The risk of death associated with childbirth is about 12 times as high as that associated with abortion” ); Sokol Report ¶ 4 (JA 424).
While the risk of serious medical complications associated with induced abortion is low, the risk of health complications from continuing a pregnancy to term is considerably higher. A woman planning to give birth has roughly forty times the risk of hospitalization for a complication compared to a woman undergoing abortion. H.J. Jiang et al., Care of Women in U.S. Hospitals, 2000,
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HCUP Fact Book No. 3, AHRQ Publication No. 02-0044, at 9, 36, 37 (Agency for
Healthcare Research and Quality, 2002), available at http://www.ahrq.gov/data/
hcup/factbk3/factbk3.pdf (in 2000, nearly four million women gave birth, and there
were about 374,000 hospitalizations for complications separate from delivery
among women with pregnancies going to term, a rate of about 9%; in contrast,
there were about 1.3 million abortions and about 3,100 hospitalizations for
complications from abortions, a rate of 0.2%); Guttmacher Institute, Facts on
Induced Abortion, supra, at 2 (“ fewer than 0.3% of abortion patients experience a
complication that requires hospitalization.” ); Sokol Report ¶ 4 (JA 424).
Some women have preexisting conditions, such as heart, kidney, or liver
disease, which can be exacerbated by pregnancy. Other women’ s health is
threatened by conditions caused by the pregnancy itself. For example:
• It is estimated that over 3% of live births in the United States are complicated by diabetes, with over 90% of these women having gestational diabetes (defined as having high blood sugar (glucose) levels during pregnancy without a prior history of diabetes). F. Gary Cunningham, et al., Williams Obstetrics 1170 (22d ed. 2005); American Diabetes Association, Gestational Diabetes, available at http://www.diabetes.org/gestationaldiabetes.jsp (last visited Dec. 6, 2006) (estimating that gestational diabetes affects 4% of pregnant women). Women with gestational diabetes are at increased risk for health complications, such as postpartum cardiovascular complications. Williams Obstetrics 1176. They also face an increased lifetime risk of diabetes.
• Approximately 5% of pregnancies are complicated by preeclampsia, a hypertensive disorder of pregnancy. Id. at 765. Women with severe preeclampsia can face serious deterioration of a number of organs and organ systems, including renal failure, blindness, severe cardiovascular
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disturbances, pulmonary edema (fluid accumulation and swelling in the lungs), rupture of the liver, seizures, and stroke. Id. at 770-778. • Approximately 1 in 200 deliveries result in placental abruption, the complete or partial separation of the placenta from the uterine wall. Id. at 811. Maternal risks associated with abruption include massive blood loss, disseminated intravascular coagulation (the failure of the clotting mechanism at the site of bleeding), and renal failure. Id. at 811-816. Incarcerated pregnant women, because of their disadvantaged backgrounds, may face even greater risks during pregnancy than women in the general population. ACOG, Special Issues in Women’ s Health, Health and Health Care of Incarcerated Adult and Adolescent Females 89 (2005); Jennifer G. Clarke, MD, et al., Reproductive Health Care and Family Planning Needs Among Incarcerated Women, 96 Am. J. of Public Health 834, 836 (May 2006) (finding that 54% of incarcerated women in study did not have health insurance and 11.1% were homeless when they entered the correctional facility); see also Marian Knight & Emma Plugge, The Outcomes of Pregnancy Among Imprisoned Women: A Systematic Review, 112 BJOG: An International Journal of Obstetrics & Gynecology 1467 (2005) (imprisoned pregnant women considered a high risk group due to deprived socioeconomic backgrounds, and to greater likelihood of smoking, excessive alcohol use, and abuse of illegal drugs than general population); National Commission on Correctional Health Care, Position Statement: Women’ s Health Care in Correctional Settings (2005), available at http://www.ncchc.org/resources/statements/womenshealth2005.html (“ Owing to
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their past medical histories, incarcerated women tend to have complicated and
high-risk pregnancies.” ).2 Indeed, DOC admits that many of the pregnant inmates
at its facility have high-risk pregnancies. SF ¶¶ 71-72, 106-108 (JA 66, 70-71).
B. DOC’s Policy Increases Health Risks to Women Who Decide to Terminate Their Pregnancies, Even If They Are Released While Still Pregnant
DOC’ s policy denying incarcerated women access to abortion increases
health risks for all inmates who decide to end their pregnancies, including those
who leave prison still pregnant. Many such inmates will be too advanced in
pregnancy to obtain an abortion by the time they are released. But even for those
women who are able to end their pregnancies upon release, DOC’ s policy would
necessarily force treatment delays. Such delay significantly increases the medical
risk associated with abortion. While abortion is, as noted above, very safe, the
2 Women of color may face even greater risks, as they comprise a disproportionate percentage of the incarcerated population and are also at increased risk of some pregnancy-related complications such as preeclampsia, eclampsia, and pre-term birth – all of which are associated with increased lifetime risks to the woman’ s health. See Nicholas Freudenberg, Adverse Effects of U.S. Jail and Prison Policies on the Health and Well-Being of Women of Color, 92 Am. J. of Public Health 1895 (2002) (women of color are disproportionately more likely to be incarcerated than white women); Andrea P. MacKay et al., Pregnancy-Related Mortality From Preeclampsia and Eclampsia, 97 Obstetrics & Gynecology 533 (2001) (finding that black women were 3.1 times more likely to die from preeclampsia or eclampsia than white women); D. Ashton, Prematurity–Infant Mortality: the Scourge Remains, 16 Ethn. Dis. 58 (2006) (finding that AfricanAmerican women are disproportionately likely to experience pre-term birth).
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risks associated with abortion increase as the pregnancy advances; for each week
the procedure is delayed, the risk of serious medical complications increases, and
the risk of death increases by nearly 40%. Sokol Report ¶ 5 (JA 424-25); see also
Linda A. Bartlett et al., Risk Factors for Legal Induced Abortion-Related Mortality
in the United States, 103 Obstetrics & Gynecology 729 (2004) (increased risk of maternal death associated with abortions at increased gestational age).3 Thus, for
those women who are not able to end their pregnancies until after they are released
from prison, DOC’ s policy imposes additional unwarranted and unnecessary health
risks as a result of the forced delay in care.
C. Denying Pregnant Women the Ability to Decide Whether or Not to Terminate a Pregnancy is Inconsistent with Good Medical Judgment and with Standard Medical Care
DOC’ s policy is inconsistent with generally accepted principles of
reproductive health care, as well as its own standards. By DOC’ s own admission,
it strives to provide “ the level of care that is comparable to [the] community
standard of practice.” SF ¶¶ 47-48 (JA 63). The applicable “ community
3 See also H.L. v. Matheson, 450 U.S. 398, 412 (1981) (“ Time is likely to be of the essence in an abortion decision.” ); Zbaraz v. Hartigan, 763 F.2d 1532, 1537 (7th Cir. 1985) (“ [D]elays of a week or more . . . increase the risk of abortion to a statistically significant degree[.]” (quoting Women’ s Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1146 (D.R.I. 1982)), aff’ d, 484 U.S. 171 (1987); Doe v. Barron, 92 F. Supp. 2d 694, 696 (S.D. Ohio 1999) (delay in abortion care for incarcerated woman “ will unnecessarily increase the health risks imposed on Plaintiff” ).
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standards” for both non-incarcerated and incarcerated women – demonstrated by the policies of major medical groups, medical school curricula, and the polices of other penal institutions – establish that abortion care is a serious medical need. Abortion care is simply a basic part of pregnancy-related care, and it is recognized as such by the major medical groups and institutions that treat pregnant women and train others to do so.
1. Major Medical Groups Support Access to Abortion Care for Incarcerated Women
As reflected in their recommendations, the major medical groups dedicated to women’ s health recognize abortion care as essential, standard health care for pregnant women. Amicus ACOG, the leading professional organization of physicians who provide health care for women, has long supported access to abortion care for all women. See ACOG Statement of Policy, Abortion Policy 2 (reaffirmed July 2004) (“ ACOG supports access to care for all individuals, irrespective of financial status, and supports the availability of all reproductive options.” ). Amicus AMWA, an organization of women physicians, medical students, and residents whose mission is to support policies and programs that improve women’ s health, likewise supports access to abortion care for all women: “ [T]he American Medical Women’ s Association has adopted the position that the decision to continue or interrupt a pregnancy belongs to the pregnant woman, in consultation with her physician.” AMWA Policy Statement: Abortion, supra.
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Likewise, amicus APHA, the oldest and largest organization of public health professionals in the world, has continually reaffirmed its “ commitment to . . . the right of women to choose abortion” and “ accessible, affordable, and safe abortion services for all women.” APHA Policy Statement: Safeguarding the Right to Abortion as Reproductive Choice (1989); APHA Policy Statement: Support for Sexual and Reproductive Health and Rights in the United States and Abroad (2003), available at http://www.apha.org/legislative/policy/policysearch/ index.cfm?fuseaction=view&id=1251 (2003) (reaffirming 1989 policy).
These same expert groups have recognized that incarcerated women, no less than non-incarcerated women, need access to a full range of reproductive health care. For example, ACOG recommends that “ pregnancy counseling and abortion services” be available for all incarcerated women and that “ incarcerated females of all ages should receive reproductive health care, including adequate prenatal or abortion services, per ACOG guidelines.” ACOG, Special Issues in Women’ s Health: Health and Health Care of Incarcerated Adult and Adolescent Females 89, 97 (2005). The APHA has also authored guidance for the reproductive health treatment of incarcerated women. Stating that “ jail and prison health programs must provide the services and facilities necessary to meet women’ s health care needs,” and noting the prevalence of high risk pregnancies among incarcerated women, APHA’ s position is that “ women prisoners must have access to . . .
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abortion counseling and services upon request.” APHA, Standards for Health Services Correctional Institutions 108 (2003).
DOC’ s policy of prohibiting access to abortion care is thus wholly inconsistent with the recommendations of the expert medical groups dedicated to women’ s health.
2. Major Medical Schools and Professional Associations Teach Medical Professionals the Importance of Abortion Care as Part of the Standard of Care for Pregnant Women
Medical schools and professional associations charged with training the next generation of health care providers teach students that abortion is part of standard medical care for women. A 2003 survey found that one-third of medical schools include abortion training in their pre-clinical curricula, and over 40 percent of schools offered a clinical abortion experience. Association for Reproductive Health Professionals (ARHP) Model Curriculum, Module 1, at 13 (2d ed. 2004).
Likewise, model medical school curricula developed by expert medical associations underscore that abortion training is a core part of medical school training precisely because it is part of basic pregnancy-related health care for women. For example, the Association for Reproductive Heath Professionals (ARHP) Model Curriculum, recognizing that 34 percent of women will have an abortion before 45 years of age, includes an entire module on abortion training. ARHP Model Curriculum, Module 7, at 7 (2d ed. 2004). Students are expected to
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be able to conduct counseling sessions on pregnancy options, including abortion, and to be able to perform abortion procedures. Id., Module 7, at 6. This model curriculum has become well accepted; the first edition of the curriculum was authored by AMWA, and was ultimately incorporated into elective courses and clerkships4 in at least 24 medical schools in the United States. Id., Module 1, at 11. The Accreditation Council for Graduate Medical Education (ACGME) Program Requirements for Residency Education in Obstetrics and Gynecology likewise state that, unless a resident has religious or moral objection, “ access to experience with induced abortion must be part of residency education.” ACGME Program Requirements for Residency Education in Obstetrics and Gynecology (2005), available at http://www.acgme.org/acWebsite/downloads/RRC_progReq/ 220pr705.pdf .
Other professional organizations have issued guidelines or model curricula recommending that students and physicians be able to counsel and refer women for the full range of pregnancy options. For example, the Association of Professors of Gynecology and Obstetrics (APGO), an academic medicine organization dedicated to women’ s health care education and faculty development in medical schools, has developed the Women’ s Health Care Competencies for Medical Students: Taking
4 A clerkship is a part of medical school training that allows students to work directly with patients under the supervision of a faculty member.
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Steps to Include Sex and Gender Differences in the Curriculum. Designed to be used as a template for medical schools when implementing curricula, the Competencies recommend that students be able to describe methods of pregnancy termination, discuss complications, and perform non-directive counseling. APGO, Women’ s Health Care Competencies for Medical Students: Taking Steps to Include Sex and Gender Differences in the Curriculum (2005), available at http:// wheocomp.apgo.org/competency-topic.cfm?topicid=32. Likewise, the Council on Resident Education in Obstetric and Gynecology (CREOG) Core Curriculum in Obstetrics and Gynecology recommends that physicians be able to counsel pregnant women on all options available to them, and if they themselves do not perform abortions, refer patients for abortion care. CREOG, Educational Objectives: A Core Curriculum in Obstetrics and Gynecology (8th ed. 2005), available at http://www.gynob.emory.edu/pdf/creogeducationalobjectives.pdf (last visited Dec. 6, 2006).
3. Leading Penal Standards Treat Abortion Care as a Serious Medical Need
DOC’s policy prohibiting abortion access is also at odds with the policies of prison health care accreditation groups and other penal systems. For example, the National Commission on Correctional Health Care (NCCHC), whose mission is to “ improve the quality of health care in jails, prisons and juvenile confinement facilities,” has established standards for health care in prisons and jails. NCCHC
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takes the position that “ Correctional institutions should be required to meet recognized community standards for women’s services as promoted by standards set by NCCHC.” NCCHC, Position Statements: Women’s Health Care in Correctional Settings (2005), available at http://www.ncchc.org/resources/ statements/womenshealth2005.html. NCCHC recognizes the expertise of professional associations such as ACOG, and recommends that prisons and jails develop policies based on the recommendations of these expert groups. Id. With respect to reproductive health specifically, NCCHC has said, “ Considering women’s special reproductive health needs, the frequency of repeating certain tests, exams, and procedures (e.g., Pap smears, mammograms) should be based on guidelines established by professional groups such as . . . the American College of Obstetricians and Gynecologists, and should take into account age and risk factors of the female correctional population.” Id. (emphasis added). In keeping with ACOG guidance, NCCHC standards on pregnancy counseling state: “ Pregnant women are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy, whether they elect to keep the child, use adoption services, or have an abortion.” Pregnancy Counseling, NCCHC P-G-10 (JA 261-62).
The Missouri DOC contracts with Correctional Medical Services (“ CMS” ) for the provision of care to all inmates, and CMS is, as mandated by contract with
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DOC, NCCHC accredited. CMS states that, to the “ best of [its] ability,” it adheres to NCCHC standards, SF ¶¶ 42-45 (JA 62-63), and yet it flatly denies pregnant women abortion care.
The Federal Bureau of Prisons’ (“ BOP” ) policies also recognize that the decision of whether to continue a pregnancy is one that belongs to the woman. BOP policies therefore reflect that inmates must have access to counseling about all pregnancy options, and can be transported for abortion services, if that is their decision. See BOP Policy: Birth Control, Pregnancy, Child Placement, and Abortion 6070.05(2)c (1996), available at http://www.bop.gov/DataSource/ execute/dsPolicyLoc (“ A pregnant inmate will be offered medical, religious, and social counseling to aid her in making a decision whether to carry the pregnancy to full term or to have an elective abortion.” ); Policy 6070.05(7)a (“ The inmate has the responsibility to decide either to have an abortion or to bear a child.” ); Policy 6070.05(7)c (“ In all cases, however, whether the Bureau pays for the abortion or not, the Bureau may expend funds to escort the inmate to a facility outside the institution to receive the procedure.” ).
Thus, Appellants’ policy of denying abortion care for inmates flies in the face of the recommendations of the medical associations dedicated to women’s health, and is inconsistent with community standards of basic reproductive health care.
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II. DOC’s and Its Amici’s Characterization of Abortion as “Elective” Does Nothing to Undermine the Fact That It is a Serious Medical Need DOC and its amici argue that “ elective, medically unnecessary abortions”
are not serious medical needs because “ there is no medical need for a procedure that is not medically necessary.” Appellants’ Br. 38; see also Br. of Amici Curiae Senator Chuck Gross and Senator Delbert Scott (Amici Senators Br.) 16, 19. In doing so, they ignore the case law directly on point and seemingly confuse the Eighth Amendment “ serious medical need” standard with a medical emergency standard.
A. Abortion Care is a Serious Medical Need DOC attempts to distinguish abortion care from other pregnancy-related care, arguing that abortion is an elective, medically unnecessary procedure, and “ by definition, there is no medical need for a procedure that is not medically necessary.” Appellants’ Br. 38. This position is, however, flatly contradicted by applicable precedent: this Circuit has explicitly held that “ a medical condition need not be an emergency in order to be considered serious under Estelle,” Ellis, 890 F.2d at 1003 n.1 (emphasis added), and that the mere characterization of a medical need as “ elective” does not negate the serious nature of a medical need. Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989). Other Circuits have also made clear that an inmate need not “ demonstrate that he or she experiences pain that is at the limit of human ability to bear, nor do we require a showing that his or
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her condition will degenerate into a life-threatening one.” Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003); id. at 164, n.3 (“ Merely because a condition might be characterized as ‘cosmetic’ does not mean that its seriousness should not be analyzed using the kind of factors enumerated in our jurisprudence and employed here.” ); Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir. 1988) (stating that “ it is clear” that under Estelle, “ the medical need of the prisoner need not be life threatening” to state an Eighth Amendment claim); Delker v. Maass, 843 F. Supp. 1390, 1399 (D. Or. 1994) (“ [P]rison officials may not systematically ignore more subtle conditions merely because those conditions are not imminently lifethreatening.” ).
Demonstrating this principle, this Circuit has repeatedly found that nonemergency care can constitute a serious medical need because the condition resulted in pain or loss of function. See, e.g., Hartsfield v. Colburn, 371 F.3d 454, 456-458 (8th Cir. 2004) (reversing grant of summary judgment for prison officials on inmate’ s claim that nearly two-month delay in dental care violated Eighth Amendment); Roberson v. Bradshaw, 198 F.3d 645, 646 (8th Cir. 1999) (reversing grant of summary judgment for prison official and contract physician on inmate’ s claim that defendants were deliberately indifferent to serious medical need of special diet and medication to treat diabetes mellitus); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (affirming denial of summary judgment on qualified immunity
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grounds for prison dentist who delayed oral surgery referral for inmate suffering from impacted wisdom tooth). The Eighth Circuit is not alone: non-emergency medical care is routinely recognized to constitute a serious medical need. See, e.g., Farrow v. West, 320 F.3d 1235, 1243-1245, 1249 (11th Cir. 2003) (reversing grant of summary judgment for prison defendants on inmate’ s claim that 15 month delay in provision of dentures constituted deliberate indifference to serious medical need); Hewett v. Jarrard, 786 F.2d 1080, 1086-1087 (11th Cir. 1986) (three day refusal to provide medical attention for injured shoulder was a “ reckless disregard” of medical needs); Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (“ because a tooth cavity will degenerate with increasingly serious implications if neglected over sufficient time, it presents a ‘serious medical need’ within the meaning of our case law.” ); Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir. 1996) (reversing district court’ s dismissal of inmate’ s claim that deprivation of his prescription eyeglasses and denial of medical attention for deteriorating eye condition constituted Eighth Amendment violation); Boretti v. Wiscomb, 930 F.2d 1150, 1154-1156 (6th Cir. 1991) (holding that physical and mental suffering experienced by inmate denied dressings for wound that did not become infected and healed properly could constitute Eighth Amendment violation); Henderson v. Harris, 672 F. Supp. 1054, 1059 (N.D. Ill. 1987) (treatment for hemorrhoids was a
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serious medical need because “ Plaintiff's medical needs were diagnosed by a
physician as requiring treatment (medication, ointment and daily sitz baths.)” ).
Abortion care, as a standard component of pregnancy-related care, likewise
constitutes a serious medical need. The “ 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.’ ” Lanzaro, 834 F.2d at 349.5 This
Circuit, relying on Lanzaro, has likewise held that “ classification of . . . surgery as
5 Amici Senators, relying on a Guttmacher Institute study, argue that because not all women base their decisions to have an abortion on health reasons, abortion cannot be a serious medical need. Amici Senators’ Br. 27-32. As an initial matter, amici mischaracterize the results of the study. Amici Senators state that 7% of women cited personal health or fetal problems as one reason for choosing abortion. In fact, 7% cited health or fetal problems as the most important reason for choosing abortion, whereas 13% cited problems with fetal health and 12% cited problems with their own physical health as one of the reasons for choosing abortion. See Lawrence B. Finer et al., Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, 37 Perspectives on Sexual and Reproductive Health 110 (2005), available at http://www.guttmacher.org/pubs/ journals/3711005.pdf. Even putting aside this inaccuracy, however, amici’ s argument still falls flat. Whether or not women cited a medical complication or problem as motivating their decision to terminate a pregnancy, abortion care has a major impact on the woman’ s health and thus constitutes a serious medical need.
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‘elective’ . . . does not abrogate the prison's duty, or power, to promptly provide necessary medical treatment for prisoners.” Johnson v. Bowers, 884 F.2d at 1056.
The denial of abortion care forces a woman to continue a pregnancy to term. Even complication-free pregnancies place a severe strain on a woman’ s health for the duration of the pregnancy and beyond, as her body undergoes intense physiological changes during pregnancy, labor, and delivery; it is a “ medical condition that significantly affects an individual’ s daily activities.” McGuckin v. Smith, 974 F.2d 1050, 1059-1060 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Moreover, as discussed supra, pregnancy complications can lead to increased risks to women’ s health and have life-long medical implications. Forcing a woman who wants to terminate a pregnancy to bear these risks cannot be tolerated under the Eighth Amendment. See Todaro v. Ward, 565 F.2d 48, 51 (2d Cir. 1977) (“ the Eighth Amendment forbids not only deprivations of medical care that produce physical torture and lingering death, but also less serious denials which cause or perpetuate pain. To assert otherwise would be inconsistent with contemporary standards of human decency” ).
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B. Providing Access for Abortion Care Does Not Afford Incarcerated Women Greater Rights than Non-Incarcerated Women
DOC’ s amici rely heavily on cases involving denials of public funding for abortion for non-incarcerated women to argue that granting incarcerated women abortion access affords them greater rights than non-incarcerated women. Amici Senators’ Br. 20-23. But this argument ignores the reality of incarceration. As the Supreme Court has recognized, it is precisely because an inmate has been deprived of her liberty that she “ must rely on prison authorities to treat [her] medical needs; if the authorities fail to do so, those needs will not be met.” Estelle, 429 U.S. at 103 (emphasis added); see also DeShaney v. Winnebago County Dep’ t of Soc. Servs., 489 U.S. 189, 199-200 (1989) (“ when the State by the affirmative exercise of its power so restrains an individual’ s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e.g., food, clothing, shelter, medical care, and reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause” ). The state’ s obligations to incarcerated women thus differ sharply from its obligations to women in the free world. Lanzaro, 834 F.2d at 341 (“ Whatever the government’ s constitutional obligations to the free world, those obligations often differ radically in the prison context.” )
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While the state can erect policies that prefer or encourage childbirth, it is well-settled that the state cannot, pre-viability, prohibit abortion. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (“ Before viability, the State’ s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’ s effective right to elect the procedure.” ). DOC’ s policy, of course, does exactly that: because inmates must rely on DOC for medical care, the policy denying access to abortion care prohibits inmates’ access to pre-viability abortions, and essentially forces pregnant inmates who remain incarcerated throughout their pregnancy (or who are released too late to obtain abortions) to carry their pregnancies to term. While the state may “ prefer” childbirth for all women, the policy’ s ban on pre-viability abortion results in forced childbirth for inmates, which goes well beyond the constitutionally permissible expression of a state preference for that outcome. See Casey, 505 U.S. at 878-879 (while a state may “ promote the State’ s profound interest in potential life . . . a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” ).
Moreover, for incarcerated women, a policy that “ prefers” childbirth by banning abortion not only subjects them to the health risks outlined above, but also has significant health consequences precisely because they reside in the penal system. It is well accepted that prenatal care and an enhanced, healthy diet during
24

pregnancy are critical for ensuring a healthy outcome for both the woman and the baby she will eventually deliver. See American Academy of Pediatrics and ACOG, Guidelines for Perinatal Care 77-82 (5th ed. 2002); see also ACOG, You and Your Baby: Prenatal Care, Labor and Delivery, and Postpartum Care, available at http://www.acog.org/publications/patient_education/ab005.cfm (last visited Dec. 6, 2006); APHA, Standards for Health Services Correctional Institutions, supra, at 108 (noting importance of prenatal care, including appropriate screening tests, and diet for incarcerated women). Yet, incarcerated women are forced to depend on the limited prenatal care and the poor nutritional diet available in prisons. See Marian Knight & Emma Plugge, Risk Factors for Adverse Perinatal Outcomes in Imprisoned Pregnant Women: A Systematic Review, 5 BMC Public Health 11(2005) (more than 30% of imprisoned pregnant women received inadequate prenatal care). Finally, being forced to continue a pregnancy while incarcerated often means that women will not be allowed to breast-feed and bond with the baby beyond the few hours immediately after childbirth, nor will they receive the postpartum physical and psychological care they may need. APHA, Standards for Health Services Correctional Institutions, supra, at 108 (recommending that prisons and jails provide an inmate time with her infant after delivery); NCCHC, Position Statement: Women’ s Health Care in Correctional Settings (2005), available at
25

http://www.ncchc.org/resources/statements/ womenshealth2005.html (“ Pregnant inmates have high levels of psychological distress, yet often do not receive counseling and support services. Likewise, screenings for postpartum physical and psychiatric complications often are not performed.” ).
Thus, DOC’ s argument that abortion care is not medically necessary ignores both existing precedent – making clear that a condition need not be emergent to amount to a serious medical need – and the medical realities of incarceration for pregnant women.
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CONCLUSION For the foregoing reasons, and those stated in the briefs of Appellees and its other amici, the decision of the United States District Court for the Western District of Missouri should be affirmed.
Respectfully submitted. Kimberly A. Parker Jessica L. Waters WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Ave., N.W. Washington, D.C. 20006 (202) 663-6000
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C)(i) and Local Rule 32A(c), (d)(2), I hereby certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)(A) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface, 14-point Times New Roman. I further certify that this brief was prepared using Word 2000 (9.0.3821 SR-1), that this brief text, including footnotes and excluding the Table of Contents, Table of Authorities, Certificate of Service, and this Certificate of Compliance, contains 5,925 words as calculated by its automated word count feature, and that the CD-ROM submitted with the instant brief has been scanned for viruses by Symantec Antivirus (version 10.0.2.2000; virus definition file 12/10/2006 rev. 7) and is virus-free.
______________________ Jessica L. Waters December 11, 2006

CERTIFICATE OF SERVICE
I, Jessica L. Waters, hereby certify that I have on this 11th day of December, 2006, caused two copies of the foregoing Brief For Amici Curiae The American College of Obstetricians and Gynecologists, The American Medical Women’ s Association, and The American Public Health Association in Support of PlaintiffsAppellees to be served upon the following parties by overnight courier at the following addresses:
Diana Kasden ACLU Foundation 125 Broad Street, 18th Floor New York, New York 10004
Michael Pritchett Missouri Assistant Attorney General Missouri Office of the Attorney General Post Office Box 899 Jefferson City, MO 65102
______________________ Jessica L. Waters

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

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.
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 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
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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 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.”).
III. 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, 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
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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.”).
1During oral argument, Roe conceded the applicable test in the prison context is still Turner. We agree, and for completeness, we address the issue.
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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
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 91-92.
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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. Id.
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
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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 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.3 Although logically analogous, the
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
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“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
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.
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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
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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
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).
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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
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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
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 omitted)).
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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
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.
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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
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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
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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.
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.
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IV. CONCLUSION Although the district court erred in finding the MDC policy invalid under the
Eighth Amendment, the MDC policy cannot be maintained under the Fourteenth Amendment in light of Turner. The judgment of the district court is affirmed.
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 Crawford v. Roe, 546 U.S. 959 (2005)
126 S.Ct. 477 Supreme Court of the United States Larry CRAWFORD, et al., applicants,
v. Jane ROE. No. 05A333. | Oct. 17, 2005.
Opinion

Application for a stay presented to Justice THOMAS and by him referred to the Court denied. Temporary stay entered October 14, 2005, vacated.
Parallel Citations 126 S.Ct. 477 (Mem), 163 L.Ed.2d 361, 74 USLW 3270
	  

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