concurring.
I believe that the panel majority’s opinion sweeps too broadly in upholding the preliminary injunction under consideration here. Judge Higginbotham’s fluent and forceful rhetoric tends to obscure the extreme difficulty of the substantial questions of law and policy posed by this case. Determining whether the appropriate preliminary relief has been ordered necessitates intricate distinctions in the balancing of legitimate concerns. I join the majority in holding that the plaintiffs are likely to succeed on their claim under the Fourteenth Amendment; however, I believe the majority goes too far in treating that likelihood as a virtual certainty based on the limited record compiled upon consideration of a preliminary injunction. I am also not prepared, based on the information now before us, to join the panel majority in extending the protection of the Eighth Amendment to elective, medically unnecessary abortions.
The Supreme Court has found in the Fourteenth Amendment a qualified right of women to choose to abort a pregnancy. Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147, reh’g denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). As an intermediate appellate court, we do not write on a clean slate. Instead we are bound by the Roe decision and thus must apply constitutional standards to the regulation challenged here. See American College of Obstetricians v. Thornburgh, 737 F.2d 283, 317 (3d Cir.1984) (Statement of Judge Weis Sur Petition for Rehearing), affirmed, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986). In doing so, we must recognize that prisoners retain, and must be afforded a reasonable opportunity to exercise, those constitutional rights of general application which are not inconsistent with their status as prisoners or with legitimate penological objectives of the corrections system. Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984).
I believe it is incorrect to characterize the regulation under consideration as one impinging upon the exercise of a constitutional right. The majority has reached the conclusion, based upon an asserted absence of evidence that court-ordered release is required for other forms of “purely elective” surgery, that the court-ordered release requirement was developed “solely to address inmate requests for elective, nontherapeutic abortions.” I do not think such a conclusion is justified based upon the absence of evidence favorable to the defendants in a preliminary injunction proceeding where the plaintiffs have the burden of proof.
Moreover, even if we assume that the regulation does single out elective abortion for treatment different from that afforded other forms of elective medical treatment, it does not follow from that assumption that the regulation is constitutionally infirm. It is incarceration that impinges upon the choice to abort a pregnancy, not a regulation providing for court-ordered release on one’s own recognizance. There is no evidence whatsoever that prisoners are ever released on their own recognizance without a court order in order to obtain other forms of elective medical treatment or for any other purpose. Therefore, as the majority agrees, the regulation may fairly be seen as an affirmative attempt to accommodate the constitutionally protected choice.
The county asserts that security concerns underlie the challenged regulation. I do not think that, by enjoining enforcement of the regulation, the majority means to suggest that requiring a court order for release on the prisoner’s own recognizance *353represents an irrational response to legitimate security concerns.
What is really at issue is whether, as the county argues, the regulation under consideration “afford[s] a reasonable opportunity” for inmates to exercise their fundamental right to choose abortion, Id. The inmates argue that a reasonable opportunity can only be afforded by imposing on the county an affirmative federal constitutional duty to expend resources to provide inmates with assistance in exercising that right. See e.g., Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
No argument has been made that retention of the right to choose abortion is inconsistent with the inmates’ status as prisoners or with the legitimate penological objectives of the corrections system. Therefore, the right is presumptively retained by the inmates, and the Turner rationale is useful to assess the constitutionality of the absence or insufficiency of regulations providing for the exercise of that right. Turner v. Safley, — U.S.—, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“Turner").
The first Turner factor, that the regulations have a logical connection to legitimate governmental interests invoked to justify it, is satisfied by the county’s assertion of security concerns. Under Turner it is also relevant in assessing the reasonableness of a regulation to determine whether “alternative methods of exercising the right ... remain open to prison inmates.” Id. at 2262. The record suggests that release on one’s own recognizance is the only method of obtaining an elective abortion. Therefore, there is apparently no opportunity for those who are not in a position to obtain a court-ordered release to exercise their right. In addition, there is apparently no procedure for expediting an application for court-ordered release in order to avoid increasing the risk of unavailability and danger from abortion.
Prison officials have no burden to disprove the availability of alternative methods of accommodating the claimant’s constitutional complaint. O’Lone v. Estate of Shabazz, — U.S. —, 107 S.Ct. 2400, 2405, 96 L.Ed.2d 282 (1987) (“Shabazz ”). However, the availability of an alternate procedure permitting the exercise of the right at de minimis burden is evidence that present regulations are too restrictive. Turner, 107 S.Ct. at 2262.
The evidence suggests that there is an “obvious, easy alternative[ ]” to the policy adopted by the county. Shabazz, 107 S.Ct. at 2407. The prison doctor, under circumstances of medical necessity, orders abortions to be performed on inmates of all security classifications. The process already in place for ordering medically-necessary abortions could also provide abortions for other inmates who request them.
I agree with the majority that, in view of the fact that no alternative procedure currently is available to expedite the court-order process or to provide those who are unable to obtain court-ordered release with a meaningful opportunity to choose to abort a pregnancy, and that a less restrictive means of accommodating the security concerns exists, the plaintiffs are likely to succeed in a claim that the challenged regulation represents an exaggerated response to security concerns.
I also agree that an assertion that economic dependency imposed by incarceration may deprive an inmate of the ability to choose abortion finds no justification under current Supreme Court law or in legitimate penological concerns. Economic factors may be considered in choosing the methods used to provide a meaningful opportunity, but the cost of protecting a constitutional right cannot justify its total denial. Bounds v. Smith, 430 U.S. at 825, 97 S.Ct. at 1496.
I agree that the inmates are likely to succeed on their claim that some affirmative assistance from the county is necessary to ensure a meaningful opportunity to obtain the medical assistance necessary to effectuate the choice protected by the Fourteenth Amendment. I stop short, however, of adopting the majority’s blanket assumption that the Eighth Amendment is also implicated merely because abortion is a medical procedure. Specifically I am unwilling to join what amounts to a quantum leap to the conclusion that a state’s refusal *354affirmatively to provide elective abortions to female prisoners constitutes cruel and unusual punishment. I believe the majority loses sight of the rationale supporting the Eighth Amendment right to medical treatment.
Certain conduct directed towards prisoners may be deemed cruel and unusual punishment because it involves the “unnecessary and wanton infliction of pain” or is “repugnant to the conscience of mankind” or can be said to offend “evolving standards of decency that mark the progress of a maturing society.” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The test of “cruel and unusual” is a strict one which considers whether the infliction grossly exceeds a legitimate need for force or violates the standards of contemporary society. Rhodes v. Robinson, 612 F.2d 766 (3d Cir.1979). The question is not whether particular conduct may be personally repugnant to the court, but whether such treatment implicates “broad and idealistic concepts of dignity, civilized standards, humanity and decency.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (“Estelle ”).
A limited right of prisoners to medical treatment stems from an interpretation of the language of the Eighth Amendment “in light of the evolving standards of decency that mark the progress of a maturing society.” Id. at 102, 97 S.Ct. at 290. The Eighth Amendment does not protect all medical needs. The essential test under the Eighth Amendment is one of medical necessity, not simply that which may be considered desirable. Id. Prisoners must not be forced to endure needless suffering from the painful and untreated effects of an accident or serious illness. Id. at 105, 97 S.Ct. at 291. In a case involving denial of medical care, the facts of each case are of controlling significance in determining whether there has been a constitutional violation.
We deal here with an asserted duty affirmatively to provide elective, medically unnecessary abortions. Although physical and psychological ills may accompany the condition of pregnancy, the record does not demonstrate that the desire of the plaintiffs to obtain an elective abortion necessarily equates to painful disease or injury per se.
Assessment of contemporary values concerning the challenged treatment of a prisoner is relevant to the application of the Eighth Amendment. Assessment of those standards with respect to the denial of elective abortions requires us to determine legislative facts concerning whether denial of elective abortions is likely to offend societal standards of decency. See In Re Asbestos Litigation, 829 F.2d 1233, 1248 (3d Cir.1987) (Becker, J. concurring). Such assessment does not call for a subjective judgment but rather requires the court to look to the objective indicia which reflect a public attitude toward a given course of conduct. Estelle, 429 U.S. at 103, 97 S.Ct. at 290 (Contemporary legislation codifies the common law view that the public should be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself).
We have nothing before us to inform our judgment in that regard. The parties have not taken the opportunity to comment on the implications from representative modern legislation, for example, nor has the issue been litigated in prior proceedings. See In re Asbestos, at 1248. In relying simply upon unsupported assumptions, the majority reasons more as advocates than as impartial judicial officers.
The right to elect to abort a pregnancy is one which the Supreme Court has acknowledged to be repugnant to the religious conscience of many. In Roe v. Wade the Supreme Court noted that “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus” as to a theory of life to support or contravene a woman’s right to choose an abortion. 410 U.S. at 159, 93 S.Ct. at 730. Justice Blackmun writing for the court stated: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the *355subject inspires.” Id. at 116, 93 S.Ct. at 708. “[Ajbortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly.” Thornburgh v. American College of Obstetricians, 476 U.S. 747, 772, 106 S.Ct. 2169, 2184, 90 L.Ed.2d 779 (1986).
While such disagreements do not relieve us of our duty to apply the Constitution faithfully, id., certainly no record has been compiled which would justify this court in characterizing denial of an elective abortion as repugnant to the conscience of mankind. Nor does the denial of an elective abortion become the deliberate infliction of pain simply because medical attention is necessary to effectuation of a constitutionally protected choice. Unless we decide that the Eighth Amendment is an umbrella protecting inmates from deprivation of all rights which are guaranteed by other sections of the Constitution, as in other cases involving medical treatment, whether the abortion was a “serious medical need” would be determined by the facts of each case.
The Eighth Amendment must draw its meaning from the evolving standards of decency which mark the progress of a maturing society. We have nothing before us to inform our judgment that denial of elective abortions is likely to offend societal standards of decency. Without bootstrapping the liberty interest protected by the Fourteenth Amendment into the Eighth we have no reason to decide that prisoners would be entitled to elective abortions based upon an assumption of a commonly perceived inhumanity of refusing to provide elective abortions as a general matter. This is the rationale of the Eighth Amendment and we have been given no reason to believe that it is appropriately applied to the medical procedure of elective abortion.
I agree that under current law á Fourteenth Amendment right of access by prisoners to medical care for abortion as well as for prenatal care is necessitated for a meaningful opportunity to exercise choice. Therefore, I would affirm the grant of a preliminary injunction based on the likelihood of success on the Fourteenth Amendment claim. I would pass the Eighth Amendment claim without intimating an opinion on it so that essential facts may be determined before we pass upon this novel constitutional issue.