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
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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
1

During 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 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.”).
2

The 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. 

-5-

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
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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
3

The “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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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
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).

4

The MDC’s contention that inmates removed from the facility for abortion

outcounts are more likely to attempt an escape than inmates transported for other

medical outcounts is less convincing. In contrast to inmates transported for labor and

delivery, inmates on abortion outcounts are always physically guarded both during

transport and at the facility.

Additionally, for the reasons stated previously, the MDC’s argument that the

MDC policy results in cost reductions by lessening the number of outcounts is without

sufficient evidentiary support. 

5

Although Monmouth County Corr. Instit. Inmates v. Lanzaro, 834 F.2d 326

(3d Cir. 1987), supports Roe’s case in other respects, Monmouth County officials did

not assert security as a justification for its policy. See id. at 336 & n.15. 

-8-

“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
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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
6

The MDC asserts the policy regarding elective abortions represents nothing

more than a specific application of a general policy regarding elective procedures.

The record belies this claim and demonstrates that abortion is treated differently than

other elective procedures. For example, although treatment for a particular injury may

be classified as elective, the attending physician may override the policy and authorize

the outcount. Conversely, under the MDC policy regarding abortions “[o]utcounts for

elective abortions will no longer be authorized.” (emphasis added).

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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
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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
7

Incarceration 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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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
8

We recognize that, although upheld on appeal, the Fifth Circuit did not

expressly adopt this same reasoning. See Victoria W., 369 F.3d at 489-90. The Fifth

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

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

her to receive an elective abortion. 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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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
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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
9

These 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. 

-16-

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.
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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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