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Jail Policy Barring Abortion Without Court Order Upheld

The Fifth Circuit Court of Appeals upheld a Louisiana jail's policy prohibiting elective medical procedures, including abortions, without a court order. It also concluded that plaintiff failed to sufficiently show the requisite culpability and causation.

When Victoria W. began serving a sentence in the Terrebonne Criminal Justice Complex in Louisiana on July 28, 1999, a physical examination revealed she was pregnant. Nine days later, an ultrasound established that the pregnancy was fifteen weeks, two days along.

Victoria requested an abortion as soon as she learned she was pregnant. Pursuant to the jail's general, unwritten, policy that prisoners seeking elective medical procedures must obtain a court order allowing transport or temporary release. Victoria was told she needed to obtain a court order to get an abortion.

This required her attorney to motion the trial court for the order. However, Victoria's attorney balked, apparently for moral reasons" and did not file a motion until September 8, 1999. When he did, rather than seeking release or transport in order to obtain an abortion" counsel sought Victoria's release from the remainder of her sentence based on the prison's inadequate prenatal care." He also failed to have Victoria brought to to the courtroom for the hearing. When Victoria later confronted him about failing to request release or transport for an abortion, counsel told her that he did the best he could.

On October 13, 1999, Victoria was released but this was too late to obtain a legal abortion in Louisiana. She carried the child to term and placed it with adoptive parents.

Victoria then brought suit in federal court challenging the jail's court order policy. Both parties moved for summary judgment and the court denied Victoria's motion and granted summary judgment to defendants.

Applying the Reasonable Relationship Test" of Turner v. Safley, 482 U.S. 78, 107 S.Ct 2254 (1987) the Fifth Circuit upheld the district court's order, concluding that the policy of requiring judicial approval of elective medical procedures is reasonably related to legitimate penological interests. The policy was not promulgated with deliberate indifference to its consequences and was not the direct cause of Victoria's injury.

The court noted that Victoria relied heavily upon Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) which held that a similar court order policy was not reasonably related to a legitimate penological interest." However, the court distinguished Monmouth, finding that it rested on different facts" and, therefore, was not controlling.

The court also agreed with the district court that prison officials were not deliberately indifferent to Victoria's medical needs, concluding that her attorney's action, not the policy, denied Victoria an abortion." Therefore, Victoria failed to sufficiently show the requisite culpability and causation. See: Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004).

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Related legal case

Victoria W. v. Larpenter

[52] There is no material dispute that Victoria has shown the first two elements of municipal liability an official policy implemented by policy makers. The district court concluded without difficulty that Victoria demonstrated these elements.*fn48 Defendants make no serious challenge to these findings on appeal, and we assume them to be present.

[53] A.

[54] 1.

[55] There is no material challenge to the general policy requiring inmates to obtain court orders allowing elective medical procedures, defended here as an effort to ensure inmate security and avoid unnecessary liability. These are legitimate government interests.*fn49 There is a valid, rational connection between these interests and a policy requiring prisoners to obtain a court order allowing non-emergency medical procedures performed outside of the prison. The policy secures a focus upon each off-site transport for elective procedures, transfers which place the prisoner in a less-secure environment and increase the chance of escape. The transfers also require prison officials to escort the prisoner to the medical facility, some of which are an hour away in New Orleans, reducing prison resources and decreasing internal security. Finally, under Louisiana law, the Parish is exposed to liability claims arising from the acts of escaped prisoners.*fn50 To minimize the risks posed by non-emergency off-site transfers, there is nothing unreasonable in the Parish's insistence upon judicial approval.*fn51 The policy places an unbiased judge between the prison officials and inmates seeking off-site transport for purely elective procedures.

[56] Elective treatment is not prohibited, although not available within the prison. Rather, an inmate can receive the treatment by following a set procedure. Warden Null testified that scheduling a hearing and receiving a court order are not difficult in the Parish. That assertion is born out by the facts of this case; Victoria's lawyer filed a motion that was reviewed by a judge and set for hearing on the following day - all within the time for a legal abortion.

[57] 2.

[58] Viewing the policy as applied to Victoria, it remains reasonably related to legitimate penological interests. Victoria asserts various reasons why the policy serves no legitimate penological interest, but they alone or in sum do not prove the policy unreasonable under Turner .

[59] First, Victoria notes that she was repeatedly released from the prison without a court order for other medical care, and there is no evidence that security concerns are greater for an abortion than for regular medical care. This assertion does not account for the distinction between required medical care, like the prenatal care provided Victoria, and elective medical procedures.*fn52 The policy aims to reduce the total number of off-site transports and thereby reduce the effects on prison resources, inmate security, and potential liability. Victoria's assertion also ignores the fact that her prenatal medical care could be handled locally, while her abortion could only be handled over an hour away in New Orleans during a three-day stay. Requiring a court order for an elective procedure that requires a round trip to and three-day stay in New Orleans is reasonable.

[60] Second, Victoria contends that the prison would have lost no resources by transporting her to the abortion clinic because Victoria was willing to pay for the procedure and the cost of the guard. This fact mitigates one concern underlying the policy - the resources lost by the prison - but it ignores the fact that the prison is still either short-handed or out the cost of added personnel. It also forgets that the policy's simple means of reducing potential liability of the Parish is avoiding unnecessary transports.

[61] Third, Victoria maintains that contrary to the finding of the district court, there were alternatives available other than the court order policy. She claims, for example, that the Parish could simply have modified the policy to exclude abortions. But this fact is not dispositive; as the Court has noted, Turner does not provide a "least restrictive means" test.*fn53 The burden is on Victoria to show "an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests."*fn54 Her alternative does not account for the avoidance of liability attained by transporting prisoners for elective procedures only by court order. She concedes that her alternative would not even allow the prison to require a release of liability before transporting an inmate for an abortion. In any case, a ready alternative is only some evidence affecting the reasonable relationship standard; it is not dispositive.*fn55 Here the policy is rationally connected to the legitimate penological objectives served - inmate security, avoidance of liability, and prison resources. It is neither arbitrary nor irrational.

[62] Finally, Victoria relies heavily on Monmouth County Correctional Institutional Inmates v. Lanzaro ,*fn56 which held that a similar court order policy was not reasonably related to a legitimate penological interest. Monmouth , however, rested on different facts than this case. The prison in Monmouth had a specific policy governing abortions that were not medically necessary.*fn57 The policy required inmates who wanted a non therapeutic abortion to first acquire a court order releasing the inmate on her own recognizance.*fn58 A court order allowing supervised release was not an option.*fn59 The prison did not subject any other forms of elective medical care to the court order policy; "rather, it appears to be an option created solely to address inmate requests for elective, nontherapeutic abortions."*fn60 The plaintiffs claimed that the court order policy impermissibly impeded their freedom to choose an abortion and constituted cruel and unusual punishment.*fn61 They sought a preliminary injunction barring the enforcement of the court order policy, which the district court granted. The Third Circuit reviewed the facts to determine whether the plaintiffs demonstrated a reasonable probability of eventual success in the litigation.*fn62

[63] Following oral argument in Monmouth , the Supreme Court issued Turner , which the Monmouth court applied. The sole government interest asserted by the county was the "unspecified, yet insurmountable, administrative and financial burdens [that] will result if the County is required to provide access to and funding for elective, nontherapeutic abortions."*fn63 The court found this unspecified assertion was not a legitimate government interest because "courts have been reluctant to consider costs to the institution a major factor in determining whether a constitutional violation [exists]."*fn64 Because the only interest asserted was economic, the court refused to recognize it as a legitimate interest and found the policy unreasonable under Turner .*fn65 The court went on to find that even assuming a legitimate government interest, the policy was impermissible nonetheless because it was not reasonably related to a legitimate penological interest. The court explained that the policy focused on the nature of the treatment and not on the gravity of any security risk.*fn66 As such, the court held the policy to be an impermissible burden on a woman's right to choose an abortion.

[64] The facts of this case deal with a materially different policy, government interest, and penological concern. While the policy in Monmouth applied only to abortions, the policy at issue here governs all elective medical procedures. The Monmouth policy 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. But the Parish's policy leaves the decision to the inmate and her attorney; an inmate may seek an order granting a custodial release. Critically, the options allowed by the Parish's policy, unlike the policy in Monmouth , ensure that a pregnant inmate who wants an abortion will obtain a court order.

[65] Furthermore, the county in Monmouth alleged only monetary and administrative burdens as the legitimate government interests supporting the policy; here, by contrast, the policy seeks to ensure inmate security and avoid unnecessary liability. There is no dispute that inmate security and avoidance of liability are legitimate government interests; the only question is whether these interests are reasonably related to the policy. In Monmouth the court did not find a rational relationship because, among other things, other prisoners were transported for elective care without a court order. The unequal application of the policy made it arbitrary and irrational. But the Parish's policy does not focus on the nature of the treatment; instead, it seeks a judicial screen of prisoner transports for elective medical care, with its attendant focus on a disinterested decision. The policy's aim is to maximize inmate security and avoid liability. Nothing suggests that its purpose or effect was to deter abortions. We are not persuaded that Monmouth controls this case.

[66] To the contrary, because the policy is reasonably related to legitimate penological interests, we find that it was constitutionally permissible.

[67] B.

[68] An otherwise innocuous municipal policy will support liability if it is promulgated with deliberate indifference to its known or obvious consequences.*fn67 If deliberate indifference is shown, Victoria must also show a direct link between the policy and her injury. As the policy itself does not violate federal law, "rigorous standards of culpability and causation must be applied"*fn68 to ensure that the Parish is not held liable for the acts of others. The facts of the case demonstrate that Victoria cannot meet either of these burdens.

[69] Victoria contends that because the prison officials knew she wanted an abortion and continued to implement the policy, they were deliberately indifferent to her constitutional rights, and that but for the policy, she would have received an abortion.

[70] As often noted, demonstrating deliberate indifference to prove municipal liability is not easy.

[71] Deliberate indifference of this sort is a stringent test, and "a showing of simple or even heightened negligence will not suffice" to prove municipal culpability.*fn69

[72] Deliberate indifference here is an objective standard.*fn70 For example, continued adherence to an officer training program that has proven inadequate in preventing tortious conduct may establish deliberate indifference.*fn71

[73] On these facts, there is no deliberate indifference. Far from illustrating a continued adherence to a policy that has violated constitutional rights in the past, the policy and the Defendants' actions in this novel situation demonstrate effort to respond to Victoria's medical needs. She received prenatal care three times during the first nine days of her imprisonment, confirming her pregnancy and providing the details necessary to properly evaluate the situation. Byerly wrote the Warden explaining the situation and asking for guidance on the Monday following Victoria's August 6 ultrasound. The Warden contacted the Sheriff's attorney, and then informed Byerly that Victoria needed to obtain a court order. Once Byerly knew the protocol, he arranged a meeting in his office with Victoria, the prison's head nurse, and himself. He explained the court order policy to Victoria. He allowed her to use his telephone to call her attorney.

[74] When her attorney appeared confused by Victoria's request, Byerly spoke directly to her attorney and explained the policy to him. Because there were no abortion clinics in the Parish and because the prison could not itself perform the abortion, Byerly gave Victoria access to directories and a phone to enable her to locate and call various abortion clinics in New Orleans to shop price and service availability. When Byerly heard nothing from Victoria's attorney, he again notified the Warden and noted that the situation was time-sensitive. The Sheriff's attorney wrote a letter to Victoria and the Warden personally delivered it to her. The letter told Victoria that the prison had not heard from her attorney and reminded her of the need for a court order. It went further, alerting Victoria to the possibility that her attorney might be having moral qualms about the representation. Victoria was allowed to telephone her attorney and make the necessary arrangements. Four days later, Byerly again reminded Victoria of the policy.

[75] Victoria's attorney filed a motion, which the judge reviewed and set for hearing the next day on September 9, 1999, well within the legal time period for obtaining an abortion. Prison officials transported Victoria to a holding cell at the courthouse, although neither the judge nor her attorney asked for her to be brought to the courtroom.*fn72 Despite Victoria's request of her lawyer, he did not ask for a court order releasing Victoria for an abortion. Rather, he asked for an early release due to inadequate prenatal care. This was the attorney's choice, not the Parish's. The judge testified that if the attorney had asked that Victoria be present, he would have allowed it. The judge also testified that he asked Mr. Marcello whether the motion was for an early release or for a temporary release for medical care, and Mr. Marcello stated that the motion was for an early release. There is no evidence that the court would have denied Victoria's motion to receive a medical procedure to which she had a constitutional right. But the judge did not have the chance to rule on such a motion because the attorney chose instead to seek an early release. The Parish's policy, being a condition of Victoria's incarceration, burdened her access to an abortion, but the policy functioned properly and the balance was reasonable.

[76] These facts demonstrate that the Parish did not promulgate its policy with deliberate indifference to its known or obvious consequences. This was the first time an inmate requested an abortion in the Parish. The prison officials and medical staff reasonably applied the policy. The various communications and meetings show that the prison assisted Victoria in navigating the policy, and she did so successfully.

[77] The facts also preclude a showing that the policy was the direct cause of her injury. That the policy itself was reasonable, as we have explained, in turn affects the question of causation. But regardless of the policy's requirements, it functioned properly in this case. Her attorney's action, not the policy, denied Victoria an abortion.

[78] In her summary judgment motion below and in her causation argument here, Victoria focuses upon traditional tort law. Although tort principles inform our causation analysis, her reasoning ignores the uniqueness of municipal liability for claims against instruments of local government brought under § 1983. Causation analysis for municipal liability must accommodate the insistent rule that the local government unit be the actor; it must not be held liable under respondeat superior . The facts of this case show that the policy was reasonable and the frustration of Victoria's choice to abort was neither predictable nor the policy's doing. Victoria's appeal to Louisiana tort law misses the mark.

[79] V.

[80] We conclude that on facts about which there is no genuine dispute, insisting upon judicial authorization and providing prompt access to it was reasonably related to legitimate penological interests. The requisite culpability and causation have not been sufficiently shown. The policy was reasonable and causation is not present. The claims must fail and we must affirm the summary judgment in favor of Defendants.


Opinion Footnotes

[82] *fn1 United States Steel Corp. v. Darby , 516 F.2d 961, 962-63 (5th Cir. 1975); United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962).

[83] *fn2 Victoria testified that she had previously retained Mr. Marcello to represent her daughter in a tort case, but Victoria terminated the representation.

[84] *fn3 During his deposition, Mr. Marcello testified that Victoria asked him for an early release because of the prison's inadequate prenatal care. Victoria disputes this assertion, and we assume the truth of Victoria's assertion for the purpose of our summary judgment review.

[85] *fn4 Will v. Michigan Dep't of State Police , 491 U.S. 58, 70-71 (1989) (explaining that an action against a government official is tantamount to a suit against the government itself); Brandon v. Holt , 469 U.S. 464, 471-72 (1985) (same); Ashe v. Corley , 992 F.2d 540, 541 n.1 (5th Cir. 1993) (same).

[86] *fn5 Johnson v. Louisiana , 351 F.3d 616, 621 (5th Cir. 2003).

[87] *fn6 42 U.S.C. § 1983.

[88] *fn7 Bush v. Viterna , 795 F.2d 1203, 1209 (5th Cir. 1986).

[89] *fn8 Id.

[90] *fn9 Baker v. McCollan , 443 U.S. 137, 146 (1979); see also Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443, 450 (5th Cir. 1994) (en banc).

[91] *fn10 Monell v. Dep't of Social Serv. of New York , 436 U.S. 658, 690 (1978).

[92] *fn11 Id . at 691-92.

[93] *fn12 Id . at 691.

[94] *fn13 Bd. of the County Comm'rs of Bryan County, Oklahoma v. Brown , 520 U.S. 397, 404 (1997); see also Piotrowski , 237 F.3d at 578 & n.17.

[95] *fn14 Canton, Ohio v. Harris , 489 U.S. 378, 385 (1989).

[96] *fn15 Bryan County , 520 U.S. at 405.

[97] *fn16 Roe v. Wade , 410 U.S. 113, 153 (1973); Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 846 (1992).

[98] *fn17 Casey , 505 U.S. at 874 ("The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.").

[99] *fn18 Id . at 877.

[100] *fn19 U.S. CONST. amend. VIII.

[101] *fn20 Estelle v. Gamble , 429 U.S. 97, 102 (1976); Wilkerson v. Utah , 99 U.S. 130, 136 (1878).

[102] *fn21 Estelle , 429 U.S. at 102 ( quoting Jackson v. Bishop , 404 F.2d 571, 579 (8th Cir. 1968)).

[103] *fn22 Id . at 103-04.

[104] *fn23 Id . at 104.

[105] *fn24 Id . at 106.

[106] *fn25 See Lawson v. Dallas County , 286 F.3d 257, 262 (5th Cir. 2002).

[107] *fn26 Overton v. Bazzetta , 123 S. Ct. 2162, 2167 (2003).

[108] *fn27 Turner v. Safley , 482 U.S. 78, 85 (1987) ("Our task . . . is to formulate a standard of review for prisoners' constitutional claims that is responsive both to the policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.") (internal quotation marks omitted).

[109] *fn28 Id . at 84-85.

[110] *fn29 Id . at 84.

[111] *fn30 Id . at 84-85.

[112] *fn31 Id . at 89.

[113] *fn32 Id . at 89-91.

[114] *fn33 Overton , 123 S. Ct. at 2168. Turner explained that the logical connection between the regulation and the goal must not be so remote that the policy is arbitrary and capricious. Turner , 482 U.S. at 89-90.

[115] *fn34 Id .

[116] *fn35 Turner , 482 U.S. at 91.

[117] *fn36 Overton , 123 S. Ct. at 2168.

[118] *fn37 Turner , 482 U.S. at 91-93.

[119] *fn38 Id .

[120] *fn39 Id . at 97-99.

[121] *fn40 Id . at 97.

[122] *fn41 Id . at 98-99.

[123] *fn42 Id . at 99.

[124] *fn43 Thornburgh v. Abbott , 490 U.S. 401, 408 (1989); Jones v. N.C. Prisoners' Labor Union, Inc. , 433 U.S. 119, 129-31 (1977); Pell v. Procunier , 417 U.S. 817, 822 (1974) (cited with approval in Turner ).

[125] *fn44 Bell v. Wolfish , 441 U.S. 520, 556-62 (1979).

[126] *fn45 Overton , 123 S. Ct. at 2170.

[127] *fn46 Block v. Rutherford , 468 U.S. 576, 588 (1984) (holding prison's policies of denying contact visits to pretrial detainees and random shakedown searches of cells to not violate due process because of valid, rational connections between the regulations and security).

[128] *fn47 Because Plaintiff has not shown a federal rights deprivation, as we will explain, we need not reach Victoria's argument regarding the district court's decision to grant the individual defendants' qualified immunity. See Wilson v. Layne , 526 U.S. 603, 609 (1999); Steadman v. Texas Rangers , 179 F.3d 360, 367 n.9, 369 (5th Cir. 1999).

[129] *fn48 The district court explained: The Court has little trouble concluding that the court order policy at issue in this case constitutes an official policy . . . for section 1983 purposes. . . . Sheriff Larpenter acknowledges that "[i]t is an unwritten policy that when an inmate requests elective surgery, the inmate is advised to seek permission from the District Court, either pro se or through counsel, by filing the appropriate documents to obtain an order setting forth the parameters for the procedure, i.e., who will pay the guards, if necessary, where the procedure will be performed, etc." The Court also found that the medical staff, through Ed Byerly, was complicit in executing the policy.

[130] *fn49 Block v. Rutherford , 468 U.S. 576, 586 & n.8 (1984) (finding that internal security of detention facilities is a legitimate government interest); Wilson v. State , 576 So. 2d 490, 493 (La. 1991) (holding that a custodian of a prisoner may be held liable for injuries caused by an escaped prisoner if the escape results from the negligent management of the prison).

[131] *fn50 LA. REV. STAT. § 15:811(A) (authorizing the sheriff to release prisoners in limited circumstances); Wilson , 576 So. 2d at 493.

[132] *fn51 See Overton , 123 S. Ct. at 2168-69 (policy decreasing the total number of visitors and thereby minimizing possibility of misconduct and effect on prison resources was rationally related to internal security).

[133] *fn52 It is clear that Victoria believes that any desired abortion, regardless of the reason, is an emergency medical situation. As a result, Victoria does not believe a policy governing elective procedures should have applied to her. However, while an abortion is time-sensitive and unique in its constitutional protection, a non-therapeutic abortion is not a medical emergency. The prison reserves emergency transport for conditions such as heart attacks, severe hemorrhaging, and labor pains less than seven minutes apart. A woman's desire for a non therapeutic abortion does not fit this category. Victoria presents no reason why a non-therapeutic abortion must qualify as an emergency. The constitutional right to choose to abort one's pregnancy does not necessarily categorize it as an emergency. Accordingly, the Parish was reasonable in applying the court order policy to Victoria.

[134] *fn53 Turner , 482 U.S. at 90-91.

[135] *fn54 Id . at 91; Overton , 123 S. Ct. at 2167-68.

[136] *fn55 Turner , 482 U.S. at 91.

[137] *fn56 834 F.2d 326 (3d Cir. 1987).

[138] *fn57 Id . at 328.

[139] *fn58 Id . at 334.

[140] *fn59 Id . at 334-35.

[141] *fn60 Id . at 335.

[142] *fn61 Id . at 329, 334.

[143] *fn62 Id . at 332-33.

[144] *fn63 Id . at 336 (internal footnotes omitted).

[145] *fn64 Id .

[146] *fn65 Id . at 337.

[147] *fn66 Id. at 338.

[148] *fn67 Bryan County , 520 U.S. at 406-07; Piotrowski , 237 F.3d at 579-80; Bryant v. Maffucci , 923 F.2d 979, 986 (2d Cir. 1991) (explaining that for prisoner to prevail on § 1983 claim alleging unconstitutional policy that violated her right to an abortion, prisoner must show that the policy was deliberately indifferent to her rights and that city made a deliberate choice that was the moving force behind the violation).

[149] *fn68 Bryan County , 520 U.S. at 405.

[150] *fn69 Piotrowski , 237 F.3d at 579 ( citing Bryan County , 520 U.S. at 407).

[151] *fn70 Canton , 489 U.S. at 390; Farmer v. Brennan , 511 U.S. 825, 835-37 (1994).

[152] *fn71 See Canton , 489 U.S. at 390 & n.10.

[153] *fn72 There is no allegation of collusion between the Parish and Victoria's attorney.