Involuntary Abortion

Hi there,

A really shocking guardianship case was overturned by the Appeals Court last week.  This kind of sad family problem can come up in divorce cases more frequently than in the general population  because parents with disabled children are statistically more likely to divorce.  My very able colleagues, Lisa Cukier and Tiffany Howard, kindly agreed to write a post for me on it.  Read below and be amazed at what the courts can do…

A recent Appeals Court decision has the community buzzing about what laws are in place to protect a disabled adult’s right to make fundamental decisions for herself and under what circumstances a Court may override those decisions.

As described in this Boston Globe article, “Mary Moe” is a thirty-two year old pregnant woman who suffers from schizophrenia and bipolar disorder.  This pregnancy is Moe’s third, with one prior pregnancy having ended in abortion and another having produced a son who is in the custody of Moe’s parents.  Despite conclusive medical evidence to the contrary, Moe has denied her current pregnancy and refused obstetric care.  The Department of Mental Health (“DMH”) filed a Guardianship Petition seeking the appointment of Moe’s parents to act on her behalf for purposes of consenting to an abortion.  It was clear that Moe lacked mental capacity to either refuse or give informed consent to an abortion.

The Probate and Family Court judge (Judge Harms) appointed counsel for Moe, as well as a guardian ad litem (“GAL”) to investigate whether Moe, if competent, would choose to terminate her pregnancy.  It is necessary that people who are declared incompetent have independent representation in Guardianship proceedings that involve extraordinary medical decisions, such as abortion.  Additionally, when these proceedings are contested, as this one was, the Court must hold an evidentiary hearing to protect the incompetent person’s right to be heard in a meaningful way.  These cases are governed by a “substituted judgment” standard: The judge must rule in a manner consistent with what the evidence shows the disabled person would choose if she were competent to make decisions for herself.

After investigating Moe’s history and current expressed preferences, the GAL concluded that, if competent, Moe would decide against an abortion.  Moe’s attorney opposed the DMH’s Petition, and despite this opposition, the judge did not hold an evidentiary hearing on the issue.  Instead, Judge Harms appointed Moe’s parents as co-Guardians and ordered that Moe could be “coaxed, bribed, or even enticed . . . by ruse” into a hospital to undergo an abortion, and further ordered, on the judge’s own initiative, that the physician who performs the abortion should simultaneously sterilize Moe “to avoid this painful situation from recurring in the future.”

Moe appealed the abortion and sterilization order.  The Appeals Court overturned Judge Harms’ decision, holding that individuals have a fundamental right to procreate, and are entitled to the due process protections of an evidentiary hearing and meaningful application of the “substituted judgment” standard before the court orders an abortion or sterilization.  Because no such evidentiary hearing had taken place, and in fact no one had even asked for sterilization, the Appeals Court sent Moe’s case back to the Probate and Family Court, reminding the judge, “In utilizing the doctrine [of substituted judgment,] the court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent.”

This case is most noteworthy for its emphasis on the disabled person’s due process rights. It illustrates the spirit of the 2009 overhaul of Guardianship and Conservatorship law in Massachusetts: incapacitated persons retain rights to autonomy and self-determination.