Since I discovered how to set up Google Alerts while researching my article on preparing for a medicated pregnancy, Google has lit up my inbox with articles about a recent event: the horrific treatment of a mentally ill pregnant woman in a Massachusetts courtroom. To quote vitals.msnbc.com, “A 32-year-old pregnant woman from Massachusetts, known only as Mary Moe, is at the center of a heated battle over abortion and sterilization, in a case so complex you could use it to teach an entire course on bioethics.” Why? Not because when the whole thing went to a judge, Ms. Moe’s parents requested that the court order that their daughter undergo an abortion, a step they believe necessary to her health and wellbeing. Oh, no. The problem here is that the judge took a truly unbelievable step over The Line without even holding a hearing, first.
She ordered that this woman be sterilized.
No, I didn’t know that that was possible, either. And I’m not the only one. A representative of an organization I know and trust told the Boston Herald that he, too, believes that the very idea of court-imposed sterilization is terrifying:
“I didn’t realize that forced sterilizations were going on anywhere,” said Howard Trachtman of the National Alliance on Mental Illness Massachusetts. “If a precedent were set for that, then you could see a whole slew of people filing for it, or trying to get judges to order it … I don’t see how people should be sterilized against their will for any reason.”
It has taken me an entire afternoon just to figure out what the heck went on, here. Finally, I came across the official record of the appellate court decision, as provided by MSNBC. From here on out, this document is my source for whatever I write happened in the course of the court cases.
The facts are undisputed. Moe, thirty-two years old, is mentally ill, suffering from schizophrenia and/or schizoaffective disorder and bipolar mood disorder. Moe is pregnant, although the record is unclear how long she has been pregnant. She has been pregnant twice before. On the first occasion she had an abortion, and on the second she gave birth to a boy who is in the custody of her parents. At some point in the time period between her abortion and the birth of her son, Moe suffered a psychotic break, and has been hospitalized numerous times for mental illness.
The Department of Mental Health … filed a petition seeking to have Moe’s parents appointed as temporary guardians for purposes of consenting to an abortion.
In case it’s confusing to you why Ms. Moe’s parents could be appointed guardians to her, despite the fact that she is thirty-two, I’ll explain about mental illness and “competency.” My father once called me to have a difficult conversation about this very concept; he is mentally ill and, if he is ever unable to make safe decisions for himself, wants his wife to be able to do this for him. If, under some sort of delusion that doctors were part of a sinister plot against him, he refused surgery for appendicitis, my step-mother could then get a judge to order that he have the surgery. This one is clear-cut, because it would be obvious to everyone else that the doctors were not evil and it would also be obvious that without the surgery, he’d probably die. We do not anticipate this happening, obviously. But a formal conversation about it is important because in the event that my father becomes incompetent, which is unlikely but conceivable, everyone needs to be clear that he would want his wife to be in charge. There are formal papers with their lawyer, but telling his daughters sort of makes sure that we’re all on board with the idea. No surprises. Unfortunately, Ms. Moe did not tell her family what she wanted to happen should she ever suffered a psychotic break. Now that she has, it’s up to the courts to decide what she would have wanted. And here’s where it gets more complicated. Massachusetts law asks the court to decide not only competency, but also what the incompetent person will be ordered to do. (In most states, the court appoints a guardian, who then decides what will be done.) A recent article in The Boston Globe explains competency and guardianship and the responsibility of the court to substitute its judgment for that of the person deemed incompetent:
[This] line of reasoning, known as “substituted judgment,’’ is required under Massachusetts law in guardianship cases involving “extraordinary treatment,’’ such as abortion, removing life support, and administering antipsychotic medication.
It applies to people who are deemed incapacitated for reasons that include mental illness, developmental disabilities, and dementia. … In a common scenario, patients who resist medication are often ordered to take it.
Sounds like a tough job to me. But even though this case sounds like one of the toughest possible decisions for a judge I still do not understand where sterilization came in. More on that later.
Ready for some more complicating facts? Mary Moe showed up in an emergency room in October, 2011, where doctors diagnosed a pregnancy, decided that she should take medication for her mental illness, even though it might harm the fetus, because the risk of stopping the meds was greater than the risk of continuing the treatment; the Department of Mental Health entered the picture, requested guardianship be given to Ms. Moe’s parents, who then decided that it would be in their daughter’s best interest to have an abortion, because she had already given birth to a son who is already in the care of her parents. Oh, and before her “psychotic break,” Mary Moe had one abortion. There’s plenty of documentation for all of this. Moe, however, insists that she has a daughter, does not believe that she has a son and does not believe that she is pregnant.
Clearly, this woman not in great shape to be taking care of a child and my heart goes out to both her and her parents, who must be having an awful time watching their daughter in such an awful place. I have no idea how to even begin thinking about what I would do if a relative refused to accept prenatal care because she didn’t believe the doctors that she was pregnant in the first place. But the decisions regarding the pregnancy and the guardianship haven’t been made, yet. An appellate court can either reverse or not reverse or not decide either way about an earlier ruling. In this case, the abortion and the guardianship decisions will go to another court, where there will be an actual hearing. Oh, and about that order for sterilization? (Just typing the word sends chills down my spine.) The appellate court judge used language that is, apparently, the judge equivalent of a bitch slap.
We reverse that portion of the order requiring sterilization of Moe. No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.
And he goes even further to insult his clearly incompetent colleague. The record from that decision also sums up the previous judgement like this:
The judge ordered that Moe’s parents be appointed as coguardians and that Moe could be “coaxed, bribed, or even enticed … by ruse” into a hospital where she would be sedated and an abortion performed.
Additionally, sua sponte, and without notice, the judge directed that any medical facility that performed the abortion also sterilize Moe at the same time “to avoid this painful situation from recurring in the future.”
“Sua sponte” is the legal equivalent of “because she just felt like it.” This is not about the right to choose whether or not this woman is going to have this baby and what should be done since she is unable to make that choice. A court of law in the United States of America decided that a person should not ever have the right to have a child for the rest of her life.
This particular case has a lot of details in it that make it unique; what terrifies me about its implications, however, is the idea that there are people who have a lot of power who want to choose who can to have children and who cannot. Thank God Moe’s lawyer appealed this case, thank God that a sane judge reversed an inhuman decision, and thank God that the original judge retired on Jan 11.