Goodwin v. Turner

MAGILL, Circuit Judge.

Steven J. Goodwin appeals the district court’s ¹ order denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Goodwin, a federal prisoner incarcerated in Missouri, argues that the Bureau of Prison’s (Bureau’s) refusal to allow him to ejaculate into a clean container so that his semen could be used to artificially inseminate his wife violates his constitutional right to procreate. The district court rejected Goodwin’s claim holding that because the right to procreate is fundamentally inconsistent with incarceration, it does not survive incarceration. Goodwin v. Turner, 702 F.Supp. 1452, 1453 (W.D.Mo.1988). This is a ease of first impression. However, we need not reach that issue because, even assuming Goodwin’s right to procreate survives incarceration, the Bureau’s restriction is reasonably related to its legitimate penological interest of treating all prisoners equally, to the extent possible. Therefore, we affirm, albeit on other grounds.

I.

Goodwin is a prisoner incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri (Medical Center), pursuant to a lawful criminal conviction.² His wife, who is currently thirty years old, is not incarcerated. Despite Goodwin’s imprisonment, they desire to conceive a child. They do not want to delay conception until his release because of their concern about the increased risk of birth defects as a result of increasing maternal age. Goodwin will be eligible for parole on September 2, 1991. His latest release date is February 26, 1995. However, prison authorities have stated that there is “good reason to believe [Goodwin] will be released closer to his parole eligibility date [than his latest release date].” Joint Appendix at 42.

The overall risk for all age groups of giving birth to a child with Down’s syndrome or a chromosomal abnormality is 1 in 650 and 1 in 200 to 300, respectively. At the time of Goodwin’s parole eligibility, Goodwin’s wife will be thirty-one years old. Her risk of having a child with Down’s syndrome or a chromosomal abnormality will be 1 in 500 to 700 and 1 in 300, respectively. The chances of her having a genetically healthy baby will be 997 out of 1000.

At the time of Goodwin’s latest release date in 1995, his wife will be thirty-five years old. Her risk of having a child born with Down’s syndrome or a chromosomal abnormality will be 1 in 450 and 1 in 225, respectively. Therefore, her chances of having a genetically health baby will be 995 out of 1000.³

On June 8, 1987, Goodwin requested authorization and assistance from prison officials so that he could artificially inseminate his wife. In refusing permission, prison authorities stated that the Bureau had no program or provisions for implementing his request. Goodwin appealed this decision but his requests were similarly denied.

On August 17, 1987, Goodwin filed a pro se petition for writ of habeas corpus pursuant to § 2241. He sought a court order to force the prison authorities: (1) to grant him permission “to produce acceptable semen for impregnation of his wife”; (2) to allow several doctors from the University of Missouri School of Medicine, or other accredited doctors, such as his personal doctor and, at most, one medical assistant to enter the institution “for the purpose of properly collecting [his] semen under safe and sanitary procedures and for freezing said semen in the proper manner”; (3) to give him tests to ensure he was free of sexually transmitted diseases including the HIV virus;⁴ and (4) to refrain from transferring him to any other institution until the dispute was fully resolved. Joint Appendix at 6. Goodwin did inform prison officials that he would bear all financial costs of the procedure. Id. at 3. On September 17, 1987, Goodwin further suggested that instead of bringing doctors into the prison, the prison officials could make arrangements for one of the Bureau contract hospitals in Springfield to perform the procedure. Id. at 25.

On November 18, 1987, the magistrate recommended granting Goodwin’s petition, in part, holding that his right to bear or beget children survives his incarceration. Goodwin v. Turner, No. 87-3488-CV-S-WRC, slip op. at 3 (W.D.Mo. Nov. 18, 1987). The magistrate further stated that the prison’s denial of Goodwin’s request for artificial insemination on the ground that it did not have a program or provision for his request violated his right to due process. Therefore, the magistrate recommended that Goodwin submit his request in a clear and detailed fashion so that prison officials could either accommodate his request or make specific objections thereto.

In response to the magistrate’s report, the executive staff of the Bureau adopted a policy statement regarding artificial insemination. The statement provides in part that

sound correctional policy dictates against allowing inmates to artificially inseminate another person.... [I]f [artificial insemination were] allowed in one case, all of [the Bureau’s] institutions would either have to develop collection, handling, and storage procedures for semen or be opened up to private medical or technical persons to come in to collect the semen. This situation would either require a significant drain on resources or create significant security risks, espe-dally in connection with inmates with a high security classification_ The Bureau strives, to the extent possible, to treat all inmates equally. Therefore, in connection with indigent inmates, the Executive Staff felt that the Bureau would be in the position of having to either provide or pay for these services for these inmates and, with respect to female inmates, to significantly expand the medical services available.

Joint Appendix at 36-37.

After the magistrate issued its opinion and the Bureau announced its policy, Goodwin again changed his proposal. He argued to the district court and argues to us now that he is seeking only an order that the Bureau “provide [him] with a clean container in which to deposit his ejaculate, and a means of swiftly transporting the ejaculate outside the prison.” Appellant’s Brief at 10. Goodwin argues that because his wife could inject the semen herself with a clean pipette or syringe in a prison bathroom or a nearby hotel, outside personnel would not have to enter the institution to assist in the process.⁵

After reviewing the record “with utmost scrutiny,” the district court denied Goodwin’s petition, holding that “he does not have a fundamental constitutional right to father a child through artificial insemination that survives incarceration.” Goodwin v. Turner, 702 F.Supp. at 1453 (W.D. Mo.1988). It is from this order that Goodwin appeals.

II.

The right to procreate has been consistently recognized as a fundamental right. See Carey v. Population Services Int’l, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1976); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Skinner v. Oklahoma, 316 U.S. 535, 536, 541, 62 S.Ct. 1110, 1111, 1113, 86 L.Ed. 1655 (1942). Because “no ‘iron curtain’ separates” prisoners from the Constitution, Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1983) (quoting Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)), a prison inmate “ ‘retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.’ ” Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)). Goodwin argues that the district court erred in holding that the fundamental right to procreate does not survive incarceration. We need not decide whether Goodwin’s right to procreate by means of artificial insemination actually survives incarceration. Even assuming, without deciding, that the exercise of Goodwin’s right to procreate is not fundamentally inconsistent with his status as a prisoner, the restriction imposed by the Bureau is reasonably related to achieving its legitimate penological interest. To this issue we now turn.

A.

We must first ascertain the appropriate standard for reviewing prison restrictions on an inmate’s fundamental constitutional right. Goodwin argues that we must review such a restriction under a standard of strict scrutiny. We disagree. In Washington v. Harper, — U.S. -, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990),⁶ the Supreme Court explained that the “proper standard for determining the validity of a prison regulation claimed to infringe on an inmate’s constitutional rights is to ask whether the regulation is ‘reasonably related to legitimate penological interests.’ ” Id. — U.S. at -, 110 S.Ct. at 1037 (quoting Turner, 482 U.S. at 89, 107 S.Ct. at 2261). The Court held that this standard must be applied even when the “constitutional right claimed to have been infringed is fundamental, and the State under other circumstances would have been required to satisfy a more rigorous standard of review.” Harper, — U.S. at-, 110 S.Ct. at 1037. Therefore, because the Bureau’s administration of the prisons implicates Goodwin’s constitutional rights, the standard of review adopted in Turner applies. See id. at-, 110 S.Ct. at 1037-1038.

We reject, as without merit, Goodwin’s argument that because the prison regulation has a direct impact on his wife’s right to procreate, it should be subject to strict scrutiny. We cannot subject prison regulations to strict scrutiny every time a family member is affected by the prison regulation. Incarceration necessarily deprives an individual of the freedom “to be with family and friends and to form the other enduring attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). By its very nature, incarceration necessarily affects the prisoner’s family. See Southerland v. Thigpen, 784 F.2d 713, 717-18 (5th Cir.1986). For example, a wife’s constitutional right to freedom of association is directly impinged by prison regulations which limit her ability to visit with her husband while he is incarcerated. We would not, however, subject such a regulation to strict scrutiny merely because her associational rights were implicated. Such restrictions on the prisoner’s liberty would be sustained if they were reasonably related to achieving a legitimate penological objective. To that extent, the wife’s associational rights are not relevant. Therefore, we need only determine whether the Bureau’s restriction on Goodwin’s right to procreate is reasonably related to achieving a legitimate penological objective.

B.

In deciding whether the challenged regulation meets this reasonable basis test, Turner instructs us to consider various factors. First, there must be a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). Second, where alternative means of exercising the right remain open to the prisoner, courts should be “particularly conscious of the ‘measure of judicial deference owed to corrections officials.’ ” Turner, 482 U.S. at 90, 107 S.Ct. at 2262 (quoting Pell v. Procunier, 417 U.S. at 827, 94 S.Ct. at 2806). Third, we must consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90, 107 S.Ct. at 2262. Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation,” however, prison officials do not “have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” Id. at 90-91, 107 S.Ct. at 2262.

The Bureau’s regulation satisfies the test enunciated in Turner. First, the prison prohibition on inmate procreation, even if accomplished in the simple manner ultimately suggested by Goodwin, is rationally related to the Bureau’s interest of treating all inmates equally, to the extent possible. Such an interest is a legitimate penological interest.⁷ Cf. Madyun v. Franzen, 704 F.2d 954, 962 (7th Cir.) (“male and female inmates must receive substantially equal facilities and conditions while in prison”), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983). According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it,would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security. Cf. Turner, 482 U.S. at 90, 92, 107 S.Ct. at 2262, 2263; Southerland, 784 F.2d at 718. Goodwin concedes as much. In his brief he states that “[a] pregnant prisoner requires special medical services which may or may not be available within the institution, special diet, exercise, and other pre- and post-natal care.” Petitioner’s Brief at 22-23. Therefore, pursuant to Bureau policy of treating all prisoners the same, to the extent possible, male prisoners cannot be allowed to procreate while incarcerated because the Bureau cannot afford to expand its medical services for its female prisoners to accommodate their desire to procreate.

Goodwin argues that “[wjhether a prison can deny a woman’s right to conceive while in prison, on the grounds of administrative burden, is an issue to be decided another day in the context of an actual case and a specific request.” Appellant’s Brief at 23 (emphasis in original). This argument misses the point. We do not hold that if the Bureau allows Goodwin to procreate, then it must as a matter of constitutional law allow its female inmates to procreate. We merely note that as a matter of the Bureau’s established prison policy, and not as a matter of constitutional law, if male inmates are allowed to procreate, the Bureau will either be forced to accord some similar benefit on its female inmates or compromise its legitimate policy. Therefore, the burden imposed upon the Bureau as a result of expanded medical services to its female inmates is relevant to this case.

Second, although there are no alternative means of exercising Goodwin’s right to procreate that remain open to him besides awaiting release, the regulation is still reasonable. The lack of such alternative avenues stems from the fact that none can exist without compromising prison policy or expending a large amount of prison resources accommodating the requests of its female prisoners. This absence of ready alternatives constitutes evidence of the reasonableness of the Bureau’s policy.

Finally, accommodation of Goodwin’s asserted constitutional right will have a significant impact on other inmates. Accommodation would force the Bureau to grant its female inmates expanded medical services, thereby taking resources away from security and other legitimate penological interests. The accommodation of the female inmates is just the kind of “ ‘ripple effect’ ” to which the Turner Court referred. As a result, we should “be particularly deferential to the informed discretion of [the Bureau] officials.” Turner, 482 U.S. at 90, 107 S.Ct. at 2262. Therefore, we conclude that the Bureau’s restriction on inmate procreation satisfies the reasonable relationship standard.

III.

In conclusion, we hold that the appropriate standard in reviewing an inmate’s claim that his fundamental rights have been infringed is the reasonable relationship test enunciated in Turner. We further hold that the Bureau’s restriction on inmate procreation is reasonably related to furthering the legitimate penological interest of treating all inmates equally, to the extent possible. Therefore, we affirm.

1 . The Honorable William R. CoIIinson, Senior United States District Judge for the Western District of Missouri.

2 . Goodwin was assigned to the Medical Center for nonmedical reasons including the proximity of his family to the institution.

3 . The record indicates there are also risks inherent in artificial insemination. According to a Medical Center physician, "if the semen [is] not maintained or injected under the proper conditions, the procedure, at best, may be ineffective and, at worst, result in a birth defect or illness or injury to the recipient.” Joint Appendix at 19.

4 . The record indicates that Goodwin had already been tested for the virus before he had requested permission to artificially inseminate his wife. The results of the test were negative.

5 . Once again, Goodwin offered to bear any expense incurred by the Medical Center.

6 . The Supreme Court announced its opinion in this case more than one month after oral argument in Goodwin's case.

7 . Nearly all of the other interests asserted by the Bureau are not relevant to Goodwin’s specific request to artificially inseminate his wife. Goodwin merely seeks to obtain a clean container, and permission to ejaculate into the container and have its contents given to his wife. Most of the interests advanced by the government, and the corresponding burdens described, concern a much more sophisticated and intrusive type of artificial insemination corresponding to Goodwin’s original requests. Other interests advanced by the Bureau are not legitimate penological interests because they involve the advancement of concerns such as decreased burden on the welfare rolls that have nothing to do with prison administration. Still other interests such as tort liability are irrelevant given Goodwin’s and his wife’s willingness to sign a waiver releasing the Bureau from all potential tort liability. In any event, the grounds for such liability even absent the waiver would be far-fetched at best.