Sterilization of the Mentally Retarded — a Constitutional Right (At Least in California)

A commenter on the court-ordered hysterectomy thread asks,

To put this in another context, would a court be allowed to sterilize an incompetent person for the betterment of society? They did this in Indiana in the early part of the last century and a SCOTUS opinion ruled that such actions by a court were unconstitutional. Can’t remember the cite though. How is this different? I’m sure the courts in Indiana said that they did it for the benefit of the incompetent person….

It turns out that the matter is much more complex than that. Many people know that in Buck v. Bell (1927), the Supreme Court upheld involuntary sterilization of the allegedly mentally retarded; that’s where Justice Holmes his famous line (to which I add one more sentence of context) that, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.” And it seems nearly certain that courts today would generally reject any law that’s this broad; see Skinner v. Oklahoma (1942) for an early, though limited, step towards that rejection.

But what I didn’t know until several years ago is that many courts are indeed authorizing sterilization of mentally retarded women, if certain procedures are used to try to make sure that the sterilization is really necessary to serve the woman’s best interests (and even if the woman is unable to meaningfully consent herself). In fact, the California Supreme Court actually struck down as unconstitutional a state law — passed in reaction to the sterilization movement exemplified in Buck v. Bell — that categorically barred such sterilizations. Other decisions have authorized sterilization of the mentally retarded under similar rationales (though no statutory bans on such sterilization were involved, so the court didn’t have to decide whether the ban was unconstitutional); see, e.g., In the Matter of the Guardianship of Hayes (Wash. 1980), Matter of CDM (Alaska 1981), Estate of CW (Pa. Superior Ct. 1994), In re Conservatorship of Angela D. (Cal. Ct. App. 1999), and (with a somewhat different approach, and involving the sterilization of a man), In re Sterilization of Moore (N.C. 1975). Here’s an excerpt from the California Supreme Court case, Conservatorship of Valerie N. (Cal. 1985) (emphases and some paragraph breaks added); for more of the case, including the dissents, see the full opinion:

Mildred and Eugene G., her mother and stepfather, are coconservators of the person of their adult developmentally disabled daughter Valerie. They appeal from a judgment of the probate court denying their petition for authorization to have a tubal ligation … performed on Valerie….

We shall conclude that the Legislature, in enacting subdivision (d) of section 2356[, which banned sterilization of the mentally retarded,] … intended to discontinue the longstanding, but discredited, practice of eugenic sterilization, and to deny guardians and conservators authorization to have the procedure performed on their wards and conservatees…. [But we] conclude … that the present statutory scheme denies incompetent developmentally disabled persons rights which are accorded all other persons in violation of state and federal constitutional guarantees of privacy….

Valerie was born on July 13, 1955, apparently a victim of Downs Syndrome as a result of which she is severely retarded. Her IQ is estimated to be 30. She is now 29 years old. She lives with her mother and stepfather. Although she has no comprehension of the nature of these proceedings, she has expressed her wish to continue to have her parents care for her. Her parents’ long range plan for Valerie is that she will move to a residential home should they become mentally or physically unable to care for her. She has received therapy and training for behavior modification which was not successful in eliminating her aggressive sexual advances toward men. Her parents are attempting to prepare her for the time when they can no longer care for her, and to broaden her social activities as an aspect of this preparation. They have concluded that other methods of birth control are inadequate in Valerie’s case….

[The parents] submitted a declaration by a physician who had treated Valerie from the time she was 10 years old. He stated that in his opinion a tubal litigation procedure was “advisable and medically appropriate in that a potential pregnancy would cause psychiatric harm to VALERIE.” A second declaration, this by a licensed marriage, family and child counselor having a masters degree in developmental psychology, was also submitted. This declarant had worked with Valerie on a weekly basis for a year during 1977-1978. She believed that a tubal ligation was “an appropriate means of guarding against pregnancy,” and had observed that Valerie acted “affectionately” toward adult men and made “inappropriate” sexual advances toward them. This declarant was of the opinion that because Valerie’s parents had found it necessary to be overly restrictive in order to avoid a possible pregnancy which would have “severe psychologically damaging consequences” to Valerie, close monitoring had severely hampered Valerie’s ability to form social relationships. She also believed that the level of Valerie’s retardation meant that no alternative birth control methods were available that would ensure against pregnancy.

Valerie’s mother testified that Valerie had not been sexually active, apart from masturbation, because she had been closely supervised. She was aggressive and affectionate toward boys. On the street she approached men, hugged and kissed them, climbed on them, and wanted to sit on their laps. Valerie had been given birth control pills in her early teens, but she rejected them and became ill. Her doctor then recommended the tubal ligation. Valerie was unable to apply other methods of birth control such as a diaphragm, and would not cooperate in a pelvic examination for an intrauterine device which the witness believed was unsafe in any event…. It was conceded that the court had the power to authorize an abortion should Valerie become pregnant….

[We turn to the parents’] contention that the scheme is unconstitutional. Both appellants and counsel for Valerie pose the constitutional question in terms of the right of procreative choice. [The parents] argue that subdivision (d) of section 2356 deprives Valerie of that right by precluding the only means of contraception realistically available to her, while counsel for Valerie contends that the legislation furthers that right by protecting her against sterilization forced upon her by the will of others.

The sad but irrefragable truth, however, is that Valerie is not now nor will she ever be competent to choose between bearing or not bearing children, or among methods of contraception. The question is whether she has a constitutional right to have these decisions made for her, in this case by her parents as conservators, in order to protect her interests in living the fullest and most rewarding life of which she is capable. At present her conservators may, on Valerie’s behalf, elect that she not bear or rear children. As means of avoiding the severe psychological harm which assertedly would result from pregnancy, they may choose abortion should she become pregnant; they may arrange for any child Valerie might bear to be removed from her custody; and they may impose on her other methods of contraception, including isolation from members of the opposite sex.

They are precluded from making, and Valerie from obtaining the advantage of, the one choice that may be best for her, and which is available to all women competent to choose — contraception through sterilization. We conclude that the present legislative scheme, which absolutely precludes the sterilization option, impermissibly deprives developmentally disabled persons of privacy and liberty interests protected by the Fourteenth Amendment to the United States Constitution, and article I, section 1 of the California Constitution….

In its enactment of section 2356, subdivision (d), and the omission of any provision in other legislation authorizing sterilization of incompetent developmentally disabled persons, the Legislature has denied incompetent women the procreative choice that is recognized as a fundamental, constitutionally protected right of all other adult women. We realize that election of the method of contraception to be utilized, or indeed whether to choose contraception at all, cannot realistically be deemed a “choice” available to an incompetent since any election must of necessity be made on behalf of the incompetent by others. The interests of the incompetent which mandate recognition of procreative choice as an aspect of the fundamental right to privacy and liberty do not differ from the interests of women able to give voluntary consent to this procedure, however….

An incompetent developmentally disabled woman has no less interest in a satisfying or fulfilling life free from the burdens of an unwanted pregnancy than does her competent sister. Her interest in maximizing her opportunities for such a life through habilitation is recognized and given statutory protection by both the LDDSA and the DDA. If the state withholds from her the only safe and reliable method of contraception suitable to her condition, it necessarily limits her opportunity for habilitation and thereby her freedom to pursue a fulfilling life….

Respondent suggests that the interest of the state in safeguarding the right of an incompetent not to be sterilized justifies barring all nontherapeutic sterilization of conservatees who are unable personally to consent. We do not doubt that it is within the police power of the state to enact legislation designed to protect the liberties of its residents. The inquiry does not end there, however, since the means selected are not simply protective of a liberty interest, but restrict the exercise of other fundamental rights by or on behalf of the incompetent. The state has not asserted an interest in protecting the right of the incompetent to bear children. Neither the “involuntary imposition” of other forms of contraception, nor abortion, has been banned. A conservator is permitted to exercise his or her own judgment as to the best interests of the conservatee in these matters, excepting only the election of sterilization as a means of preventing conception.

The state interest therefore must be in precluding the option of sterilization because it is in most cases an irreversible procedure. Necessarily implicit in the interest asserted by the state is an assumption that the conservatee may at some future time elect to bear children. While the prohibition of sterilization may be a reasonable means by which to protect some conservatees’ right to procreative choice, here it sweeps too broadly for it extends to individuals who cannot make that choice and will not be able to do so in the future. The restriction prohibits sterilization when this means of contraception is necessary to the conservatee’s ability to exercise other fundamental rights, without fulfilling the stated purpose of protecting the right of the conservatee to choose to bear children. That right has been taken from her both by nature which has rendered her incapable of making a voluntary choice, and by the state through the powers already conferred upon the conservator.

Respondent argues that the ban is, nonetheless, necessary because past experience demonstrates that when the power to authorize sterilization of incompetents has been conferred on the judiciary it has been subject to abuse. Again, however, the rationale fails since less restrictive alternatives to total prohibition are available in statutory and procedural safeguards as yet untried in this state. Respondent offers no evidence of abuse in other jurisdictions in which the option has been made available….

The record in this case is inadequate to establish that the trial court erred in denying the application by [the parents]. Inasmuch as the trial court believed that it lacked power to grant the application the record is devoid of any specification of the factors which the court found relevant, or any findings as to their existence. Nor would the evidence support an order granting the application. Although there is an implicit assumption by the parties and the trial court that Valerie may become pregnant, there is no evidence in this record that she is capable of conceiving. Even were we to accept this assumption arguendo there is no evidence that less intrusive methods of preventing conception are unavailable to Valerie. There is medical evidence that an intrauterine device is contraindicated in Valerie’s case, but the only other evidence regarding alternative methods of birth control is the testimony of Valerie’s mother that several years ago Valerie became ill and refused to ingest birth control pills. The record does not reveal whether more than one formulation of birth control pill was tried, or whether alternative methods of administering these contraceptive drugs are available and were considered.

Even as to those intrusive medical procedures permitted after court authorization the Legislature has required a judicial determination that the condition of the conservatee “requires the recommended course of medical treatment.” Here there was neither a finding that sterilization is “required” nor evidence that would support such a finding. Under these circumstances the order of the trial court denying appellants’ petition was proper.

Inasmuch as there was neither evidence of necessity for contraception, nor sufficient evidence that less intrusive means of contraception are not presently available to Valerie, the judgment is affirmed. The affirmance is, however, without prejudice to a renewed application for additional powers at such time as appellants have available adequate supporting evidence….

This may or may not have much relevance to the separate question of operations aimed at stopping a deadly disease, and not just preventing pregnancy, and (more importantly) operations performed on people who are not mentally retarded but are supposedly laboring under a religious delusion. But since the issue of sterilization of the mentally retarded came up, I thought I’d post about it.