On Appeal from the United States District Court for the District of New Jersey-Newark, C. Civil Action No. 82-1924.
Higginbotham, Mansmann and Rosenn, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This appeal arises from the order of the district court preliminarily enjoining appellants Monmouth County ("the County") from requiring women prisoners prisoners to secure court-ordered releases and their own financing in order to obtain an abortion while in the County's custody. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) (1982). For the reasons set forth below, we will affirm in part and modify in part the judgment and order of the district court.
Facts and Procedural History
The genesis of this appeal is a class action instituted by inmates of Monmouth County Correctional Institution ("MCCI" or "the Institution") against MCCI administrators and various county and state officials*fn1 challenging overcrowding and other conditions and practices at the Institution, including the adequacy of health care services. On October 10, 1984, the district court issued its opinion and order granting constitutionally-mandated relief from the overcrowding and other conditions of confinement challenged by the inmates.*fn2 Monmouth County Correctional Inst. Inmates v. Lanzaro, 595 F. Supp. 1417 (D.N.J. 1984) (" MCCI Inmates I "). Subsequently, MCCI inmates applied for an Order to Show Cause, seeking additional preliminary injunctive relief specifically pertaining to the health care needs of pregnant inmates. By Consent Judgment dated March 8, 1985, the parties agreed to resolve "the most emergent of those issues having [an] impact on pregnant female inmates." Joint Supplemental Appendix and Addendum to Brief of Plaintiffs-Appellees ("SA") at 1. Those issues, which concerned certain prenatal, medication and dietary needs of pregnant inmates,*fn3 did not, however, concern any services related to the termination of pregnancies. This latter issue -- abortion-related services for pregnant inmates -- is the subject of this appeal.
On February 19, 1986, Jane Doe was incarcerated at MCCI. Seven days later, a pregnancy test was administered to Doe and returned positive. On or about March 3, 1986, Doe informed MCCI medical staff that she desired to terminate her pregnancy. Doe was advised by MCCI authorities, however, that, pursuant to the Institution's policy of providing abortions only where a medical emergency presents a life-threatening situation to the mother,*fn4 the Institution would neither provide Doe with access to nor fund an abortion in the absence of a court order. See Appendix of Appellants ("App.") at A18, para. 5; A20, para. 3. Consequently, on or about April 4, 1986, MCCI inmates again applied for temporary and preliminary injunctive relief. Specifically, the inmates requested that the County be ordered to provide Doe, then approximately nine weeks pregnant, and other members of the class with certain medical care and services to facilitate their decisions to terminate their pregnancies.
The inmates' application for temporary restraints was accompanied by affidavits of two physicians supporting Doe's decision to terminate her pregnancy. Dr. John Josimovich concluded that "abortion was especially appropriate . . . because Jane Doe [was] . . . a chronic drug abuser." SA at 7. Dr. Susan Neshin maintained that Jane Doe was not emotionally equipped to carry a child to term, see SA at 10, and thus concluded "that the only medically sound and humane alternative [wa]s to grant Ms. Doe the therapeutic abortion she desires." SA at 11.
Pending resolution of the inmates' application for injunctive relief, Jane Doe was released to secure an abortion. Doe's release did not occur, however, -- due to MCCI officials' insistence that she first obtain a court order -- until more than a month after her initial request to terminate her pregnancy. Following Doe's release, the district court denied the inmates' application for a temporary injunctive hearing. Prior to that hearing, a second inmate, Mary Smith,*fn5 requested and was denied access to and funding for an abortion by MCCI officials.
On April 8, 1986, the district court ordered the County to show cause why a preliminary injunction should not issue enjoining the County from refusing to provide necessary medical care to all pregnant inmates at MCCI, including (1) access to counseling, which would include discussion of the woman's option to terminate or continue her pregnancy; (2) access to medical facilities for the purpose of obtaining an abortion; and (3) funding for abortions on the same basis as is provided for any other medically necessary procedure. MCCI inmates argued that the Institution's policy of requiring pregnant inmates who want an abortion to apply for court-ordered release constituted an unconstitutional infringement of their right to privacy under Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). The inmates also alleged that the County's refusal to provide pregnant inmates with all necessary medical care related to their pregnancies -- including abortion-related services -- constituted a deliberate indifference to their serious medical needs and deprived them of equal protection of the law in violation of the eighth and fourteenth amendments to the federal Constitution, respectively. Finally, MCCI inmates maintained that the County's discriminatory practices were in violation of the New Jersey Constitution. In response, the County argued that its obligation to its inmates was limited to assurance of "essential" medical care,*fn6 and that the provision of "purely elective medical procedures" would pose insurmountable administrative and financial burdens on the county. See Letter Brief from Malcolm V. Carton, Esq. to Hon. Harold A. Ackerman 2 (Apr. 25, 1986) reprinted in App. at A25. The County further maintained that the restriction of certain rights and privileges was a necessary and legitimate incident to the lawful incarceration of MCCI inmates.
After the hearing, the district court on May 29, 1986, granted the inmates' application on the ground that the prerequisites for preliminary injunctive relief had been met. Monmouth County Correctional Inst. Inmates v. Lanzaro, 643 F. Supp. 1217 (D.N.J. 1986) (" MCCI Inmates II "); see Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975); see also Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987) (moving party must demonstrate likelihood of success on the merits and irreparable harm; district court may also consider the possibility of harm to others and the public interest).
With respect to the challenge to the court-ordered release requirement, the district court held that the inmates had demonstrated a likelihood of success on the merits under both federal and state law. The district court observed that "regulations limiting [fundamental] rights may be justified only by a 'compelling state interest'" under federal law, MCCI Inmates II, 643 F. Supp. at 1222 (quoting Roe, 410 U.S. at 155), or by a "governmental interest [that] could be deemed overriding" under New Jersey law. Id. at 1223 (citing Farhi v. Commissioners of the Borough of Deal, 204 N.J. Super. 575, 583, 499 A.2d 559, 563 (Law Div. 1985)). Moreover, the district court noted that prison officials must adopt "the least restrictive means consistent with the maintenance of prison discipline," MCCI Inmates II, 643 F. Supp. at 1223, in order both to protect the legitimate state interest and to preserve, to the extent possible, the inmates' fundamental rights. Applying these precepts, the district court concluded that, at the threshold, the County had failed to establish that any such compelling state interest, the district court held that the challenged regulation did not constitute the least restrictive alternative to protect that interest, and that, therefore, the significant burden imposed by the court-ordered release requirement upon pregnant inmates could not legally be tolerated. See id.
Next, focusing on the inmates' claim that the County's refusal to appropriate funds for non-life-threatening inmate abortions was unconstitutional, the district court held that, while valid under the fourteenth amendment to the federal Constitution, the County's policy was invalid under the New Jersey Constitution. MCCI Inmates II, 643 F. Supp. at 1223-25. Examining Supreme Court precedent, the district court concluded that federal case law "establish[es] that the prohibition of funds for abortions [that] are medically necessary, as well as those [that] are purely elective, is constitutionally valid." Id. at 1224. Under New Jersey case law, however, the district court concluded that the County was obligated to provide funding for all requested inmate abortions "necessary to protect the life or health of the mother."*fn7 Id. at 1225 (original emphasis).
Finally, the district court concluded that the inmates had demonstrated a likelihood of success on their contention that the County's refusal to provide funding for all abortions, including those considered elective or nontherapeutic, was a breach of the County's affirmative duty to attend to the medical needs of prisoners in its custody, in contravention of the eighth amendment to the federal Constitution. MCCI Inmates II, 643 F. Supp. at 1225-27. Examining the County policy under the standard set forth in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976),*fn8 the district court first concluded that, "with respect to those inmates whose release to obtain a recommended elective abortion is precluded by reasons of security, the refusal of the county to provide abortion services [at county expense] constitutes a violation of their eight amendment rights." MCCI Inmates II, 643 F. Supp. at 1226. Similarly, the district court found that, even as to those inmates who could be released on their own recognizance to obtain an abortion, the County was nonetheless "financially obligated to assume the full costs of its inmates' elective, as well as medically necessary[,] abortions." Id. at 1227. In this regard, the district court "imposed financial dependency . . . [as] a result of their incarceration," and thus concluded that "[elective, nontherapeutic a]bortions are simply one type of elective medical treatment to which inmates are legally and equitably entitled." id.
In considering the remaining preconditions to an award of injunctive relief, the district court found that the inmates had demonstrated that, absent the relief sought, they would suffer irreparable harm because the County's court-ordered release requirement "unquestionably imposes substantial delays on the procedure and may, in some instances, thus cause substantial injury to plaintiffs," MCCI Inmates II, 643 F. Supp. at 1228, that could not be adequately compensated by money damages. See id. In balancing the relative hardships, the district court concluded that the equities weighed heavily in favor of granting preliminary injunctive relief -- the inmates had carried their burden of demonstrating irreparable harm in the absence of the requested relief, while the County's bald assertion that such relief would impose insurmountable administrative and financial burdens on its resources lacked any elaborations or evidentiary support. To the contrary, the district court found that (1) to provide for a first trimester abortion is "considerably less expensive" than to provide for all the necessary medical care for inmates electing to give birth, and (2) to arrange for one surgical procedure was probably less burdensome than to arrange for all of the pre- and post-natal medical care associated with full term pregnancy. Id. Finally, the district court noted that granting injunctive relief was consistent with the public interest because neither United States nor New Jersey public policy would countenance the continued denial of financial and moral assistance to attend to the serious medical needs for those incarcerated in governmental institutions. See id. Accordingly, on June 30, 1986, the district court issued the following order:
1. County defendants shall cease the practice of requiring pregnant inmates who seek to terminate pregnancy to obtain a court-ordered release in order to arrange personally for an abortion.
2. County defendants shall, upon receipt of the laboratory results of the pregnancy test administered to women admitted to MCCI, communicate the results to the woman and inform her, if she is pregnant, of her right either to continue the pregnancy or to have an abortion, with costs for all related medical care to be at the county's expense.
3. County defendants shall provide professional counseling services, including medical and social counseling, to aid the pregnant inmate in making her decision to terminate or to carry the fetus to term.
4. County defendants, through the MCCI medical department staff, shall complete all necessary arrangements at an appropriate medical facility for those inmates seeking an abortion, as soon as practicable following the inmate's decision to terminate the pregnancy.
5. County defendants shall assume the full cost of all inmate abortions.
6. County defendants, through their medical staff, shall provide al inmates who have a positive pregnancy test with a copy of this order as well as a copy of the March 8, 1985 consent judgment governing provision of prenatal care, in addition to verbally informing them of their rights related to their pregnancies.
Analyzing Prison Regulations
Following oral argument to this Court, the Supreme Court rendered two decisions directly relevant to this appeal. First, in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), the Court considered what level of scrutiny is appropriate in determining the constitutionality of prison regulations. The underlying lawsuit in Turner was a class action by Missouri inmates challenging two regulations promulgated by the Missouri Division of Corrections. The first regulation authorized correspondence "'with immediate family members who are inmates in other correctional institutions,' and . . . correspondence between inmates 'concerning legal matters.'" Turner, 107 S. Ct. at 2258. Other correspondence between inmates at different institutions, however, was permitted only on a discretionary basis. See id. The second regulation challenged by the Missouri inmates authorized inmate marriages only with the permission of the prison superintendent, and then only "'when there [we]re compelling reasons to do so.'" Id. "Compelling" was narrowly construed to justify marriages only in the event of a pregnancy or the birth of an illegitimate child. Id. In assessing the constitutionality of the challenged regulations, both the district court and the Court of Appeals for the Eighth Circuit employed a "strict scrutiny" standard of review. See id. at 2258. Under strict scrutiny, a prison regulation passes constitutional muster if it is the least restrictive means to accomplish a legitimate penological objective. See generally Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974).
The Turner Court defined its task as "formulat[ing] 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.'" 107 S. Ct. at 2259 (quoting Martinez, 416 U.S. at 406). After reviewing its prior decisions concerning constitutional claims by prisoners, the Court rejected strict scrutiny as the appropriate standard of review. It concluded instead that, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 2261. In determining the reasonableness of a challenged regulation, Turner instructs reviewing courts to consider (1) the rational relationship between the regulation and the governmental interest put forward to justify it; (2) the existence of alternative means to exercise to asserted right; (3) the impact on prison resources of accommodating the asserted right; and (4) the existence of "ready alternatives" to accommodate the asserted right at " de minimus " cost to valid penological interests.*fn9 Id. at 2262.
Relying on Turner 's reasonableness test, the Supreme Court reversed this Court's decision in Shabazz v. O'Lone, 782 F.2d 416 (1986) (in banc), which had held unconstitutional a prison regulation that effectively prevents certain Muslim inmates from participating in a weekly religious ceremony central to the Islamic faith. The Supreme Court first found that the Turner reasonableness analysis applies whether a challenged regulation "effectively prohibit[s], rather than simply limit[s], a particular exercise of constitutional rights." O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 2404, 96 L. Ed. 2d 282 n.** (1987). Thus, applying that analysis, Estate of Shabazz concluded that the challenged regulation was reasonable. See 107 S. Ct. at 2405-07.
This appeal arises from the district court's order granting preliminary injunctive relief to MCCI inmates. "Our review of the grant or denial of preliminary injunctions is limited to determining whether there has been an abuse of discretion, an error of law, or a clear mistake in the consideration of the proof." Moteles v. University of Pa., 730 F.2d 913, 918 (3d Cir.), cert. denied, 469 U.S. 855, 83 L. Ed. 2d 114, 105 S. Ct. 179 (1984); accord Bill Blass, Ltd. v. Saz Corp., 751 F.2d 152, 154 (3d Cir. 1984). On appeal, the County challenges paragraphs 1 and 5 of the district court's order and the underlying judgment as set forth in its memorandum opinion.*fn10 We shall consider these paragraphs in turn. In particular, we will determine whether the district court accurately applied the appropriate legal standard and properly concluded that MCCI inmates had demonstrated a "reasonable probability of eventual success in the litigation." Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982).
Accommodation of the Fundamental Rights of Inmates
We begin in our analysis, as we must, with the basic proposition that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner, 107 S. Ct. at 2259; accord Wolff v. McDonnell, 418 U.S. 539, 555-56, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) ("no iron curtain [is] drawn between the Constitution and the prisons"). Indeed, . . . [the United States Supreme Court has] insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); see, e.g., Wolff, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (due process protections extend to inmate disciplinary proceedings); Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974) (retention of certain first amendment rights of free speech); Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (per curiam) (retention of first amendment rights of free exercise of religious beliefs); L ee v. Washington, 390 U.S. 333, 19 L. Ed. 2d 1212, 88 S. Ct. 994 (1968) (per curiam) (protection against invidious racial discrimination proscribed by the Equal Protection Clause of the fourteenth amendment). Protection of these rights reflects our "belief that the way a society treats those who have transgressed against it is evidence of the essential character of that society." Palmer, 468 U.S. at 523-24.
To ensure that correctional facilities function appropriately, however, some limitation on very significant rights is justified in the prison context "both from the fact of incarceration and from valid penological objectives -- including deterrence of crime, rehabilitation of prisoners, and institutional security." Estate of Shabazz, 107 S. Ct. at 2404; accord Martinez, 416 U.S. at 412 ("The identifiable governmental interests at stake in th[e prison context] . . . are preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners."). In assessing the validity of institutionally-imposed restricts on prisoners' constitutional rights, the Supreme Court has recently instructed that, whether the restriction be partial or complete, a reviewing court must apply a uniform standard of review. Turner, 107 S. Ct. at 2261; cf. Estate of Shabazz, 107 S. Ct. at 2404 n.** (rejecting argument that heightened scrutiny is appropriate "whenever regulations effectively prohibit, rather than simply limit, a particular exercise of constitutional rights"). Specifically, "when a prison regulation inpinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 107 S. Ct. at 2261. Guided by these principles, we turn now to the challenged court-ordered release regulation of MCCI and the district court's assessment of its validity.
MCCI inmates alleges that the Institution's policies constitute an unconstitutional infringement upon their right to elect to terminate their pregnancies.*fn11 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; accord City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419, 76 L. Ed. 2d 687, 103 S. Ct. 2481 (1983) (" Akron "); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 60, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976). More recently, the Court has specifically observed that
few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision -- with the guidance of her physician and within the limits specified in Roe -- whether to end her pregnancy. A woman's right to make that choice freely is fundamental.
Thornburgh v. American College of Obstetricians, 476 U.S. 747, , 90 L. Ed. 2d 779, 106 S. Ct. 2169 (1986). MCCI inmates contend that the County's policy, requiring pregnant inmates who want an abortion that has not been characterized by the jail physician as "medically necessary" first to obtain a court order to be released on their own recognizance, impedes their freedom safely to choose abortion and impermissibly delays the exercise of that choice.
At the outset, it is necessary to articulate our understanding of the County's policy as reflected by the record, the district court's opinion, the County's brief and the arguments of the parties before this Court. Prior to the district court's challenged order, the County's policy with respect to certain inmate-requested abortions was to require court-ordered release on the inmate's own recognizance. Under the County's current view, there are essentially two categories of medical services relevant to this appeal. First, there are those procedures that may be classified as "medically necessary," which the County concedes its obligation to provide. All inmates -- regardless of their security classification -- who are in need of "medically necessary" services. Second, there are those procedures that may be classified as "purely elective medical procedures," which the County maintains it has no obligation to insure or provide.
With respect to inmate-requested abortions, the County asserts that "it is and has been the policy in Monmouth County that if abortions are determined to be necessary, the jail physician will order they they be performed." Letter from Malcolm V. Carton, Esq. to The Hon. Harold A. Ackerman 2 (May 19, 1986), reprinted in App. at A29. Abortions not so characterized, however, are considered by the County as "purely elective and non-therapeutic," and hence beyond its obligation to provide. All inmates -- again, regardless of their security status -- requesting such abortions are required to submit to the court-ordered release procedure.*fn12 There is no indication in the record, however, that other forms of "purely elective" surgery are subject to the court-order requirement; rather, it appears to be an option created solely to address inmate requests for elective, nontherapeutic abortions.*fn13 In sum, then, under the County's policy, MCCI inmates' exercise of their constitutional right to elect to have an abortion is conditioned on (1) having the desired treatment characterized as medically necessary by the jail physician, or (2) obtaining a court order ...