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Eighth Circuit: Missouri Prisoner Has Right to Elective Abortion

The Eighth Circuit U.S. Court of Appeals has held that the Missouri Department of Corrections’ (MDOC) blanket policy of prohibiting the transport of female prisoners to outside medical facilities for elective, non-therapeutic abortions violated the Fourteenth Amendment.

An anonymous MDOC prisoner identified as Jane Roe (and later, a class of similarly situated prisoners) sought approval for “outcount” transportation to a medical facility to have an elective, non-therapeutic abortion. MDOC policy restricted all such transports to medical “necessities.”

Roe countered that she had a Fourteenth Amendment right to an elective abortion, and the MDOC’s policy was therefore unconstitutional; she further alleged cruel and unusual punishment under the Eighth Amendment. The U.S. District Court (W.D. Mo.) ruled for her on both claims, and the state appealed.

The Eighth Circuit conducted a de novo review and found that the four-part test of Turner v. Safley, 482 U.S. 78 (1987) applied. The state contended that Roe’s case was similar to one of racial classifications, and thus was owed a stricter standard of review; however, this argument was rejected by the appellate court.

In applying Turner, the Eighth Circuit first agreed with the district court that although a legitimate security interest attached to outcount transportation, the MDOC policy did not rationally advance that interest. MDOC’s argument – that security interests are implicated any time a prisoner is removed from a secure facility – was found wanting when the appellate court observed that if the MDOC denied the elective abortion, Roe would likely need more outcount trips for prenatal care and her baby’s delivery.

The MDOC then argued that anti-abortion “hecklers” outside the prison gates threatened prison guards’ safety during such transports. The Court of Appeals rejected this “heckler’s veto” because it would allow the hecklers’ alleged First Amendment rights to trump Roe’s Fourteenth Amendment rights. Moreover, the MDOC offered no evidence that prison staff was ever actually put in harm’s way during a medical transport.

The “alternative means” test under Turner failed as well. The MDOC posited unconvincingly that Roe should have obtained an abortion before her incarceration, implying that she should have been prescient both as to her arrest and the fact of her pregnancy.

The third Turner test, related to the impact on guards, other prisoners and prison resources, failed because the cost impact was de minimus compared to the prison budget.
Again, the predictable need for more outcount transportation costs due to prenatal care and the delivery defeated the MDOC’s argument. Similarly, Turner’s fourth test for ready alternatives failed because denial of the abortion would inexorably lead to greater costs.
However, the Eighth Circuit disagreed with the district court on its finding of an Eighth Amendment violation. That claim turned on whether an elective procedure constitutes a “serious medical need” sufficient to impart “cruel and unusual punishment” for its denial.
The appellate court followed Fifth Circuit precedent in holding that such a denial failed to reach the level of “egregious treatment that the Eight Amendment proscribes.”

Accordingly, the Court of Appeals affirmed Roe’s Fourteenth Amendment right to medical transport for an elective non-therapeutic abortion, but reversed on her Eighth Amendment claim. See: Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008), cert. denied.

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Related legal case

Roe v. Crawford