Arch Gynecol Obstet DOI 10.1007/s00404-015-3770-6

MATERNAL-FETAL MEDICINE

Court orders on procreation Naira R. Matevosyan1,2

Received: 10 December 2014 / Accepted: 27 May 2015  Springer-Verlag Berlin Heidelberg 2015

Abstract Objective The aim of this study is to empirically evaluate judgments entered from 1913 to 2013 in the matters of compulsory sterilization. Methods Holdings and dispositions at the U.S. Appellate and Supreme courts are randomly located in LexisNexis using Shepard’s symbols. Continuous variables are processed with the Mantel–Haenszel method. Court orders are used as units of analysis. Results The majority of cases (56.4 %) concern minors at a mean age of 11.7 years. Forty-four (80 %) petitions are filed by the parents or guardians; 11 (20 %) are parens patriae. Petitions for female sterilization are denied in 56.4 % cases under the Federal Laws (2 U.S.C. 431; 28 U.S.C; 29 U.S.C; 42 U.S.C; 424 U.S.), Procedural due process clause of the 14th Amendment, statutes, and common law precedents. Petitions for female sterilization are granted in 36.4 % cases under the statutory penal codes, the Law of the land, precedents, and the dicta. No significant associations are found between the parity and degree of mental impairment (r = 0.342). Substantial correlations are met between the gender, degree of impairment (r2 = 0.724), and dispositions (r2 = 802). The mean age of women is 20.78 years; the mean age of men is 30.25 years. Correlations fail to establish reasoning between the age of the subjects and the entered judgments (r2 = 0. 356). Conclusions (1) The female/male ratio (8:1) and age gap of the respondents indicate on a disproportionate & Naira R. Matevosyan [email protected] 1

New European Surgical Academy (NESA), Emory University, Atlanta, USA

2

Atlanta, GA, USA

impact of the statutes. (2) The procedure of sterilization in itself is incommensurate with equality, as the volume of surgery is uneven in males and females. (3) The case law is instructive with respect to which arguments have not been advanced. (4) Lastly, due to the etiological intricacy of mental impairment, with genetic transmission strikingly different in men and women, expertwitnesses ought to act in a medical vacuum because there is no mathematical certainty as to the transmission mode of the traits in question (exon and intron mutations, triplet repeat disorders, histone disorders, autosomal-dominant or autosomal-recessive transmission, sex chromosome-linkage, polygenomic imprinting, and organic reasons). Keywords Compulsory sterilization
Courts
Reproductive choices
Procreative liberty

Introduction During the first half of the twentieth century more than 60,000 mentally impaired individuals, mostly residents of state institutions, were sterilized for eugenic reasons [1]. Nevertheless, the enacted mental hygiene did not decrease the prevalence of serious mental illnesses and developmental disorders in the United States. The onerous notion that women and men with cognitive impairment are unable to make meaningful decisions about their reproductive health or rights, often leads caretakers, states, and the courts to consider sterilization as a necessity. Quite often, courts do not explore factors influencing decisions of legal guardians filing for sterilization. Such factors may include property inheritance or intestate succession disputes, stigma, and misdiagnoses.

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Problem definition The World Health Organization (WHO) defines mental health as ‘‘a state of complete physical, mental and social well-being, and not merely the absence of disease’’ [2]. The National Alliance of Mental Illness (NAMI) defines mental illness as ‘‘a medical condition that disrupts a person’s thinking, feeling, mood, ability to relate to others and daily functioning’’ [3]. The Centers for Disease Control and Prevention (CDC) define mental illness as ‘‘a disorder generally characterized by dysregulation of mood, thought, and/or behavior, as recognized by the Diagnostic and Statistical Manual of the American Psychiatric Association (APA)’’ [4]. Notable changes in the APA’s latest revision of the Diagnostic and Statistical Manual (DSM) eliminate subtypes of schizophrenia; cut the ‘‘bereavement exclusion’’ for depressive disorders; change ‘‘gender identity disorder’’ to ‘‘gender dysphoria,’’ remove the A2 criterion for post-traumatic stress disorder (PTSD), replace the term ‘‘mental retardation’’ by ‘‘intellectual disability,’’ ‘‘dissociative fugue’’ by ‘‘dissociative amnesia,’’ and append new disorders, among them ‘‘motor disorder’’ and ‘‘internet game disorder.’’ In such a complexity of definitions the extent, to which a mental impairment proves ‘‘situation of necessity’’ for the coerced sterilization or pregnancy termination, remains ambiguous. In Rivers v. Katz (1986), the Supreme Court held that in order to involuntarily commit patient, the court must find by clear and convincing evidence that the individual has a mental impairment that makes him a danger to himself or to others [5]. It also emphasized that ‘‘no relationship necessarily exists between the need for commitment and the capacity to make treatment decisions since the presence of mental illness does not ipso facto warrant a finding of incompetency.’’ The Rivers’ court established a procedural due process standard for a treatment over objection, requiring a judicial finding that the patient lacks capacity to make competent decisions concerning the treatment. It must be so in procreative choices. In the matter of Urcuyo (2000) [6] the court challenged the Kendra’s Law [7], finding this Mental Hygiene Law in violation of the due process and equal protection guarantees of the New York Constitution and the U.S. Constitution, because the statute did not require a judicial finding of incapacity prior the issuance of an order requiring compliance with assisted outpatient (AOT) treatment plan. The challenge was based largely upon Rivers v. Katz [5]. Pursuant to the due process clause, the restriction of procreative and reproductive choices in mentally impaired individuals implies through the court orders. However, in etiological quandary of mental impairment, with a genetic

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transmission strikingly different in men and women, expert-witnesses act in a medical vacuum because there is no mathematical certainty as to the organic basis or the transmission module of the trait in question. Transmission can range from the exon and intron mutations, triplet repeat disorders, histone disorders, to autosomal-dominant or autosomal-recessive transmission, sex chromosome-linkages, or polygenic matrix. For example, type-5 mental retardation, Edward’s syndrome, cerebellar ataxia, and bipolar disorder have autosomal-dominant transmissions; schizophrenia has autosomal-recessive transmission. Turner and Rett syndromes are linked to the X-chromosome; whereas Jacob’s syndrome is linked to the Y-chromosome. Research in biological psychiatry is complicated by several factors, including human judgment, multiple genetic contributors and cultural environment: •

• •

•

Psychiatric diagnosis is highly inferential. Diagnostic questionnaires are helpful in trimming the list of possible diagnoses but do not have the same degree of precision or objectivity as in laboratory findings. Mental disorders are related to different sets of genes that vary across family and ethnic groups. Genes associated with mental illnesses do not always show the same degree of penetrance—the frequency with which a gene produces its effects in a specific group of people. For example, a gene for manic depression may have 20 % penetrance, which means that 20 % of the family members are at risk of having the disorder. Genetic factors in mental disorders interact with a person’s family and cultural environment. For example, a person who has a gene associated with susceptibility to alcohol abuse may not develop the disorder if he or she grows up in a family that teaches effective ways to cope with stress and responsible attitudes toward drinking.

Determination of multi-factorial nature of mental impairment includes the following clusters: Genotype Genes influence the development of mental disorders in three major ways: (1) by governing the organic causes (Alzheimer’s disease, Huntington’s chorea, schizophrenia); (2) by expansion mutations (triplet repeats—like cytosineadenine-guanine); (3) by intron (Fragile X syndrome) and extron mutations (myotonic dystrophy, cytosine-thymineguanine triplet); (4) by genomic imprinting (Prader-Willi, Angelman, and Beckwith-Wiedemann syndromes); and (5) by influencing susceptibility to anxiety, depression, personality changes, substance abuse disorders, or phobias [8, 9].

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Phenotype Some phenotypes show clear differences between identical and fraternal twins, including schizophrenia, childhood autism, attention-deficit/hyperactivity disorder (ADHD), unipolar depression, manic depressive disorder, and cognitive abilities as measured by IQ tests [9]. Behavioral phenotype This includes patterns of language usage, cognitive development, and social adjustment as well as behavioral problems in the narrow sense. Children with Down syndrome are at increased risk for early-onset Alzheimer’s disease. Children with Prader-Willi syndrome are calm in childhood, but develop stubborn, aggressive, or impulsive patterns of behavior as they grow older, in 50 % cases meeting the criteria for obsessive–compulsive disorder (OCD). Children with Williams syndrome (deletion of locus 23 on chromosome 7q11) with ‘‘elf-like’’ face, short upturned noses and small chins, show talkativeness, friendliness, and tendency to follow the strangers [9]. In 2002, German researchers found associations linking the maniac depression with one locus on chromosome-10 and the long arm of chromosome-8 [10]. Behavioral traits Mutation in a gene that governs production of a specific enzyme (monoamine oxidase-A or MAOA) appears to be the cause of violent antisocial behavior and aggression in several generations of males. Neurotransmitters secreted during the acute stress are not cleared from the bloodstream because of the MAOA deficit [8, 9]. As early as in the 1990s it was established that cells in the hypothalamus are over twice as large in heterosexual males than in homosexual men, and that there is a possible locus for ‘‘gay gene’’ on the X chromosome [9]. Family factors fall into the three categories: shared genetic material, shared environment, and non-shared environment. A parent’s behavior toward a child diagnosed with depression is partly shaped by the parent’s genetic vulnerability to depression. In general, much of the impact of a family’s environment on a child with a mental disorder is due to non-shared rather than shared interactions. Post-traumatic disorder Vulnerability to trauma is affected by such inherited factors as temperament, family, or cultural influences [11–13]. Shy or introverted persons are at a greater risk for developing post-traumatic stress disorder (PTSD) than their extrovert or outgoing peers. [12, 14].

History of childhood sexual trauma has the highest reports in adults with persisting distress and serious mental illnesses [15–21]. Stressors of childhood trauma may influence on chronicity of mental illness, service utilization, and treatment [22–24]. Evidence accumulates that in 51–95 % of cases, childhood sexual abuse predicts sexual dysfunction [25, 26], PTSD [27, 28], depression and anxiety [29, 30], dissociation, and suicidal behavior in adulthood [31]. Memories of abuse may emerge in substantial perceptual, somatic, and emotional details over time before developing into a narrative [28]. Spatial disorientation Spatial orientation includes at least two factors, visualization, and orientation. Some tasks such as reading, speaking, and learning require coordinated processing from multiple areas of the cerebral cortex and neuro-transmission in the cortex can be altered by a number of factors: hereditary, hormonal, toxic, ischemic, traumatic, and bio-protective [17, 18, 32]. Histone disorders Epigenetic factors are sometimes malleable and plastic enough to react to cues from the external and internal environments. Histone disorders are epigenetic changes solidified and propagated during cell division, resulting in permanent maintenance of the acquired mental phenotype [33]. Findings of partial epigenetic stability in somatic and germline cells allow insights into the molecular mechanisms of heritability. There are 67 known histone modifications. Post-translational modifications of histones can modulate chromatin structure, altering its biological activity (transcription status). Acquired comorbidity Linkages are revealed between schizophrenia and diabetes mellitus, schizophrenia and polycystic ovary syndrome [34], generalized anxiety, substance abuse disorder, and terminal cancer [13, 14]. Prevalence of thyroid dysfunction is higher (37 %) in persons with serious mental illnesses [14]. Both hyper- and hypoparathyroidism manifest psychiatric symptoms or overtones [35, 47]. Table 1 stratifies the prevalence of psychiatric disorders in parathyroid conditions: Patients with primary and tertiary hyperparathyroidism have comparably poor resolutions of psychiatric symptoms [39]. In contrast, patients with secondary hyperparathyroidism show improvement in several areas of testing after undergoing surgery when compared to the control [37, 38], although they remain more symptomatic at 1 year [39].

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Arch Gynecol Obstet Table 1 Psychiatric comorbidity in parathyroid disorders Parathyroid disorder

Psychiatric symptoms

Primary hyperparathyroidism

Amnesia [35], cognitive impairment, delirium, depression, paranoid psychosis [36]

Secondary hyperparathyroidism

Anxiety, depression, bipolar disorder, psychosis, seizures [37–40]

Tertiary hyperparathyroidism

Depression, cognitive impairment, psychosis [39, 40]

Hypoparathyroidism

Chorea, hypochondria, hysteria, increased intracranial pressure, mania, psychosis, tetany [41–43]

Pseudohypoparathyroidism

Anxiety, cognitive and executive dysfunction, dementia, delirium, mood swings, psychosis [44]

Pseudopseudohypoparathyroidism

Amnesia, calcification of the basal ganglia, cerebellar ataxia, dystonia, mental deterioration, Parkinson disease [45, 46]

Psychiatric symptoms in hypoparathyroidism are related to hypomagnesemia [42]. Porphyry is a group of disorders that result from a buildup of natural chemicals producing porphyrin and heme—the component of several iron-containing hemoproteins, including hemoglobin. High levels of porphyrins and heme may damage the brain tissue. Three common types of porphyry give rise to neuro-psychiatric disorders: acute intermittent porphyry, variegate porphyry, and coproporphyry. Neurological or psychiatric symptoms occur in most acute attacks, and may mimic other disorders [48, 49]. Porphyry is usually inherited from one or both parents, in either autosome-dominant or autosome-recessive way. In females, mutation in one of the two copies of responsible gene in each cell may be sufficient to cause the disorder. In males, mutation in the single copy of corresponding gene in each cell causes the disorder. Males may experience more severe symptoms [49–51]. In such a pathogenic chaos, doctors are often confronted with requests for sterilization or termination of pregnancy when the subject is incapable to consent, thus, testifying without a consensus about the mode of transmission of the trait in question.

Objective To empirically evaluate adjudications in the matters of compulsory sterilization entered in the courts of the United States in a period of 1913–2013.

Methods Nature, governing laws, precedents, and dispositions in 55 holdings at the Appellate, Supreme, and Circuit Courts were extracted in LexisNexisTM using Shepard’s symbols, and combined to produce pooled odds ratio according to the Mantel–Haenszel method. A variety of demographic, economic, clinical, and behavioral variables such as

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the age, gender, ethnicity, income, degree of mental retardation, reproductive history, criminal history, or property disputes were utilized as process variables to predict dispositions or verdicts as measurable outcomes. Data extraction and analysis Calculations used holding as units of analysis. One-way analysis of variance (ANOVA) was used for the continuous data (age at sterilization, onset of mental illness). Kruskal–Wallis was used for ranked ordinal data (parity, severity of mental impairment). Chi-square (V2) was used where data were categorical (gender, criminal records, presence or absence of the advanced directives or assisted outpatient treatment (AOT)). Continuous data were presented by weighted mean difference statistic with a 95 % confidence interval (CI) and the associations were examined with Pearson linear correlation. For multivariate models of the scored outcomes, Poisson regression was used. Data were analyzed with the help of STATA-13 program, 3rd edition [52].

Results Table 2 presents chronologically listed holdings in the matters of compulsory sterilization and other reproductive choices. [P] stands for parity—the number of term or preterm live-births and stillbirths (excluding miscarriages and induced abortions) lifetime. State petitions are marked with the asterisk [*]. The missing data are indexed as ‘‘ms.’’ All cases presented in Table 2, were appeals held at the Supreme, Appellate, or Circuit Courts. Of the total 55 adjudications reviewed, 42 (76.4 %) concerned mentally impaired and legally incompetent individuals (minors or sui juris adults), and 13 (23.6 %) healthy inmates of the state prisons, healthy employees of hazardous industries, healthy ethnic minorities, or healthy couples planning their families due to the economic hardship. Of the 42 persons defined as mentally incompetent, 36 (85.7 %) suffered various degrees of congenital

AL

MO

IN

OH

Wyatt v. Aderholt [67]

In interest of MKR [68]

AL v. GRH [69]

Cox v. Stanton [70]

OH

Wade v. Bethesda Hospital [62]

CA

TX

Frazier v. Levi [61]

Guardianship of Kemp [66]

CA

Jessin v. County of Shasta [60]

MA

NE

In re Cavitt [59]

Hathaway v. Worcester City Hospital [65]

KY

Homes v. Powers [58]

OR

CA

Kritzer v. Citron [57]

AL

OK

Relf v. Weinberger [64]

1927

VA

Buck v. Bell [55]

Skinner v. Oklahoma [56]

Cook v. State [63]

1921

IN

Williams v. Smith [54]

1975

1975

1974

1974

1974

1973

1973

1972

1971

1969

1969

1968

1968

1950

1942

1913

NJ

Smith v. board of examiners [53]

Year

State

Case

Table 2 The first-impression data

18

12

13

ms

ms

36

12, 14

17

ms

34

ms

35

35

ms

35

18

ms

ms

Age (years)

F

M

F

M, F

F

F

F

F

F

F

M, F

F

F

F

M

F

2,500 M, F

F

Sex

1

0

0

ms

0

12

0

0

0

2

ms

8

2

3

0

1

ms

0

P

Race eugenics*

Brain damage, borderline retarded

Trisomy 22

Abusive statute

Incompetent ward

Consensual sterilization of a mother of living eight children

Healthy minority*

Mentally ill: anxiety

Abusive tubal ligation based on conspiracy

Social and economic grounds

County residents claim for voluntary sterilization of the qualified residents with multiple children.

Mentally deficient in custody of state home*

Mentally retarded unmarried woman w/2 illegitimate children

Eclampsia, abusive sterilization after the 3rd childbirth

Habitual criminal*

Feeble minded*

Mentally retarded and in state custody*

Epilepsy*

Mental illness and criminal history

Dismissal of the tort claim is left undisturbed

Vasectomy is denied

Hysterectomy is denied

Vacated. Sterilization should be performed in persons older than 21 years, and with consent.

Denied

Denied

Statutory authorization is found unconstitutional

Approved

Judicial immunity is not granted

Denied

Such sterilization is unlawful. The claim is dismissed.

Denied

Denied

Judgment of trial court in favor of the doctors is affirmed ‘‘verbal consent is sufficient’’

Reversed

Affirmed

Sterilization law is found unconstitutional

Denied

Sterilization or abortion order

14th Amendment and case law

Case law

MO code § 211.011

Tit. 45, § 243, code of Alabama

Welfare and inst. code, § 7254. And case law

MGL Ann. 40, § 5(20), 66, MA Acts of 1953

Public health service act (42 U.S.C. §§ 300 708(a)(3), social security act (42 U.S.C. §§ 602(a)(15)

ORS 436.070(1) (b)

Judicial immunity clause, Title 28, US § 1343, Title 42, US § 1983, 1985(3).

44 C.J.S. insane persons § 3, p. 48

Title 7 of the CA administrative code

NEL §§ 83-501 to 83-508, R.R.S.1943, §§ 83-504, R.R.S.1943

14th Amendment

Civil code § 1581; restatement law of torts, vol. 1, p. 98

5th 14th Amendments

143 VA. 310

14th Amendment

14th Amendment

Governing laws

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123 1979 1979 \18

NC

NC

NY NY

DE

VT

CA

1st C. ME

IN

CT

NJ

AL

NC Ass’n for Retarded Children v. State [73]

In re Sallmaier [74] In re DD [75]

Matter of SCE [76]

In re Marcia R [77]

Guardianship of Tulley [78]

Downs v. Sawtelle [79]

Stump v. Sparkman [80]

Ruby v. Massey [81]

Grady [82]

Hudson v. Hudson [83]

1981 1981

WA

CA

AS

WI

In re Hayes [86]

Madrigal v. Quilligan [87]

In re C.D.M [88]

In re Guardianship of Eberhardy [89]

1981

1980

1980

GA

NH

Parham v. J.R [84]

In re Penny N. [85]

1979

1978

1978

1978

1978

1978

1977

1976 1977

1976

1976

22

19

ms

16

14

17

18

12 13 15

15

ms

20

17

13

23 16

ms

ms

ms

In re Moore [72]

1975

NJ

Age (years)

Ponter v. Ponter [71]

Year

State

Case

Table 2 continued

F

F

10 F

F

F

M, F

F

F

3F

F

F

F

F

F

F F

M, F

F

F

Sex

0

0

1

0

0

0

0

0

0

0

2

0

0

0

0 0

ms

0

4

P

Mentally retarded

Down syndrome*

Healthy minority

Severe mental retardation

Down Syndrome

Mentally ill*

Mentally retarded

Down syndrome

Severely retarded

Mentally retarded

Conspiracy to sterilize a deaf mother of two out-ofwedlock children, against her will

Cerebral palsy

Mentally retarded at custody of state home

Severe mental retardation

Brain damage Mentally retarded

Abusive statute in question

Feeble minded

Whether a healthy married but separated woman with three children, expecting the 4th child from another man, can be sterilized without the spousal consent

Mental illness and criminal history

Denied

Approved

The former order is affirmed

Dismissed

Approved

Denied

Denied

Approved

Hysterectomy is approved

Claim against the retrieved parens patriae tort is remanded and the ruling judge is found immune

Claim against the doctor is dismissed

Denied

Remanded to the state’s discretion

Subtotal hysterectomy w/preserving ovaries is denied

Granted Denied

Re-validated

Affirmed

Granted

Sterilization or abortion order

WI constitution, Art. VII, sec. 8 s

Case law

Case law

Const. Art. 4, § 6

parens patriae jurisdiction

424 U.S, 431 U.S., 14th Amendment

14th Amendment, Buck v. Bell, Skinner, supra

parens patriae jurisdiction

42 U.S.C. § 1983 and 28 U.S.C. § 2201

Judicial immunity clause

42 U.S.C. § 1983 and case law

Sec. 7254 of CA legislature, and case law

18 V.S.A. §§ 8701–8704

Case law

Case law 14th Amendment, and case law

NC.Gen. Stat. §§ 35-36 through -50

The law of the land

14th Amendment, and case law

Governing laws

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PA

GA

NY

DC

CA

CO

AR

MI

CA

8th C. MO

9th C. CA

IL

DC

Youngberg v. Romeo [95]

Motes v. Hall County DFCS [96]

In re Nilsson [97]

Oil, chemical and atomic workers v. American cyanamid co. [98]

Conservatorship of Valerie N. [99]

In re Romeo [100]

McKinney v. McKinney [101]

In re Wirsing [102]

Conservator-ship of Angela D [103]

Vaughn v. Ruoff [104]

Gerber v. Hickman [105]

Estate of K.E.J v. K.E.J [106]

Doe v. DC [107]

MA

MD

Wentzel v. Montgomery Gen. Hosp [92]

PA

NC

Avery v. County of Burke [91]

In re Terwilliger [94]

CO

In re AW [90]

Mary Moe [93]

State

Case

Table 2 continued

2013

2008

2002

2001

1999

1998

1991

1990

1985

1984

1983

1983

1982

1982

1982

1982

1981

1981

Year

ms

24

41

29

20

36

19

37

29

16–50

14

21

33

ms

ms

13

15

15

Age (years)

F

F

M

F

F

F

F

F

F

5F

F

F

M

F

F

F

F

F

Sex

0

0

0

3

0

0

0

2

0

ms

0

0

0

0

0

0

1

0

P

Severe intellectual disability

Brain damage

Inmate of a state prison, serving for 100 years to life ? 11 years, wants to artificially inseminate his 44 y/o wife

Mentally retarded couple, with three children in state custody, bring tort actions against the MDFS for abusive sterilization and fraud

Mentally retarded, epileptic, diabetic

Developmental disability

Mentally retarded adult filed for restraining order against her father who wants her be sterilized

Acquired mental incapacity*

Developmental disability

Healthy female employees of a hazardous (cynamid) industry

Mental retarded

Mentally retarded*

Mentally retarded in custody

Mentally retarded

Mentally retarded

Incompetent and blind

Wrong diagnosis of sickle cell anemia; wrong sterilization

Severely retarded

Mental illness and criminal history

Reversed, Denied

Denied

Request for artificial insemination is denied. The district court’s dismissal of the claim is affirmed

Claim is denied. Qualified immunity of the state social workers is reaffirmed

Granted

Granted

The statute is unconstitutional. Father’s petition is dismissed

Sterilization order is reversed

Denied

The claim against ‘sterilization to prevent defective reproduction’ as a criterion to hold a job is dismissed

Approved

Statute is found fatally defective and sterilization is denied

Remanded

Remanded

Denied

Total hysterectomy is denied due to the lack of necessity

Remanded to proceed with the tort actions

Reversed. Hysterectomy is denied

Sterilization or abortion order

D.C. Code § 21–2210(b)

Case law

28 U.S.C. § 1291; CA penal code §§ 2600 and 2601; CA code regs. title 15 § 3174(e)(2); and case laws

Due process clause; qualified immunity clause

Probate code Section 1950 et seq

MCL 330. 1629; MSA 14.800 (629)

11B C.R.S. (1989); 6A C.R.S. (1987) CO § 15-14-101(1); AR Code Ann. §§ 20-49-101 to 102–207, 301–307 (1987)

Welfare and institutions code Section 7254

Occupational safety and health act (OSHA) 1970, 29 U.S.C. § 654(a)(1) (1982)

Matter of grady

OCGA § 31-20-3 (Code Ann. § 84-933)

Due process of the 14th Amendment

Case law

MGL c. 112, § 12 W

MD Code (1974, 1981 Cum. supp.), § 13-708

42 U.S.C. § 1983

Section 27-10.5-128(2), C.R.S. 1973 (1980 supp.)

Governing laws

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0

1

2

3

4

5

6

7

8

Fig. 1 Case distribution in the states (1913–2013)

impairments, and six (14.3 %) had acquired mental incompetence after the brain damage, either in a car accident or intrapartum—during a traumatic birth with severe hypoxia. The majority of adjudications (56.4 %) concerned minors at a mean age of 11.7 years (± 3.1), range 12–17 years (Cook v. State [63], Relf v. Weinberger [64], In re M.K.R [68], AL v. GRH [69], In re DD [75], In re S.C.E [76], In re Marcia R. [77], Stump v. Sparkman [80], Ruby v. Massey [81], Hudson v. Hudson [83], Parham v.

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J.R [84], In re Penny N. [85], In re Hayes [86], In re AW [90] Avery v. County of Burke [91] Wentzel v. Montgomery General Hospital [92], In re Nilsson [97], Oil, Chemical and Atomic Workers v. American Cyanamid Co. [98], others). Forty-four (80 %) petitions for permanent sterilization were voluntarily submitted by the parents, legal guardians (including the estate-holders, conservators), or corporate employers; eleven (20 %) were parens patriae petitions submitted by the state (district attorney, DFCS, or

Arch Gynecol Obstet

superintendent). Figure 1 illustrates case distributions between the states: As seen from Fig. 1, California was the leading state in procreative liberty hearings, followed by New Jersey, Alabama, Indiana, and North Carolina. Our findings are consistent with several studies [110–114, 122, 123]. Of the total sample, persons subjected to sterilization conferred to a mean age of 24.8 (±1.5) years, range 12–50 years, median 19 years, mode 13 years. The overwhelming majority of subjects were females (94.5 %). The female/male equalled 8:1. The mean age of females was 20.78 (±3.6) years, and the mean age of males was 30.25 (±6.1) years. Thus, male respondents were nearly 10 years older than women. The average parity index for female subjects was 0.74. None of the men presented for vasectomy had children (legitimate, illegitimate). Counting the number of hearings as calculation units petitions for tubal ligation or hysterectomy were denied in 31 (56.4 %) cases pursuant to the Federal Laws (2 U.S.C. 431; 28 U.S.C; 29 U.S.C; 42 U.S.C; 424 U.S.), Due Process clause of the 14th Amendment (25.4 %), statutory codes (48 %), and common law precedents (26.6 %). Petitions for sterilizing females were granted in 20 cases (36.4 %) under the statutory penal codes, the Law of the Land, precedents; those concerned girls and women age 12–37 with congenital mental retardation (average I.Q. 62.5, range 50–72). Only three of such petitions were submitted by the state authorities (13.6 %). All vasectomy petitions were denied regardless the intelligence quotient, in the males and reasoned under the 5th and 14th Amendments, state-constitutions, state penal codes, and common law precedents. The case law was instructive with respect to which arguments had not been advanced. Pearson linear correlations found no significant associations between the parity and degree of mental impairment (r = 0.342). Poisson regression revealed substantial correlations between female gender, degree of mental impairment, and court orders affirming petitions for permanent sterilization (r2 = 0.724, and r2 = 802, correspondingly). No correlation was found between the age of the subjects and the court orders (r2 = 0. 356).

Discussions In 1927, in the matter of Buck v. Bell—a parens patriae petition for sterilization of an institutionalized 18-year-old woman, Justice Holmes held: ‘‘three generations of imbe-

ciles are enough’’ [55]. Within 10 years, twenty states enacted eugenic sterilization statutes enabling sterilizations of 60,000 females. In Skinner v. Oklahoma (1942), the Supreme Court held that the state’s Habitual Criminal Sterilization Act violated the equal protection clause due to the absence of a rationale in distinguishing between the classes of criminals to be sterilized by vasectomy [53]. It further held that the right to privacy in connection with decisions affecting procreation extends to minors. The state may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy. Nevertheless, Skinner did not overrule Buck; rather it distinguished Buck as involving a statute which did not violate ‘equal protection.’ The judiciary power to intervene in decisions affecting the minors is contained in equitable authority of the court known as parens patriae [108, 109, 120, 121]. Cases of proposed sterilization of incompetents are the most common circumstance in which parental discretion to consent to medical treatment is challenged by the state. The parens patriae power is stronger in situations when the court is safeguarding both interests of the state in ensuring the health of minors and the right of minors in preserving bodily integrity [108, 110]. For a court to utilize its equity power in authorizing sterilization of an incompetent person, it must invoke the doctrine of substituted judgment [111]. Many medical contexts have adopted this doctrine [112]. In a culture meant to be sewn of equality, the most obvious point of concern raised by sterilization statutes is that the application of sterilization laws is overwhelmingly directed at women. The concept of reproductive rights is usually governed by the constitutional jurisprudence. Some courts have held that refusing to grant a sterilization petition would constitute a denial of procreative choice or exercise of a right to privacy (see Valerie N) [99]. Similarly, some courts have reasoned that sterilization should be granted because the woman’s fertility burdens her liberty interests (see Grady) [82]. Some courts have emphasized the state’s interest in preventing unwanted pregnancies (see Moore) [72]. In states where institutionalized persons may be legally sterilized, courts have held that access to sterilization would provide equal protection rights for non-institutionalized women (see Ruby v. Massey) [81]. Also, a rare but more positive theme in the case law is the principle that courts should protect people with mental disabilities from sterilization imposed by persons with conflicting interests (see Guardianship of Eberhardy) [89].

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The common law is instructive with respect to which arguments have not been advanced. The case law fails to address the impact of sterilizations on both marriage possibilities and relationships of sterilized individuals who marry after coerced sterilization (see Downs v. Sawtelle [79] and Vaughn v. Ruoff [104]). Many of justifications are not related to the best interests of respondents whose fertility is in jeopardy. Sterilization is implicitly advanced as a response for sexual promiscuity, a safeguard of the state, a convenience for care givers requesting hysterectomies who in some cases have a different agenda, like the property disputes. Several sterilization statutes are justified largely by the assumption that ‘‘mentally impaired individuals are incapable of adequate parenting’’ and their offspring will become financial burden on the state. A significant body of case law relies on this rationale, disregarding the fact that our generations are also affected by unhealthy behaviors (smoking, drug abuse during the pregnancy) of mentally competent mothers without psychiatric disorders [113, 114]. Most of the parents–petitioners note financial reasons as barriers for their children to become parents (see C.D.M) [88]. However, financial hardship does not meet constitutional muster where the state draws classifications to protect its fisc [115]. In Griswold v. Connecticut [116], the Supreme Court struck down a state law which criminalized contraceptive use and counseling. The Court found that certain provisions of the Bill of Rights created a ‘‘zone of privacy’’ which protected the marital relationship and with which the state was barred for interfering. Eisenstadt v. Baird [117] extended Griswold’s holding to unmarried individuals. Eisenstadt involved a law criminalizing distribution of contraceptives to single persons. The court held that ‘‘the state lacked a rational basis for prohibiting distribution of contraceptives to non-married individuals while allowing distribution to married persons.’’ The court found that the state’s sole reason for imposing the prohibition was to deny ‘‘contraception per se’’ to single persons. Although the court expressly declined to reason off ‘‘fundamental rights violation,’’ it did extend ‘‘the right of privacy to the individual—married or single—to be free from unwarranted intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’’ [117]. Griswold and Eisenstadt paved the way for Roe v. Wade [118], in which the Court held that ‘‘states could not completely ban non-therapeutic abortions.’’ In 1989, Roe was weakened by Webster v. Reproductive Health Services [119], when the court ruled that the ‘‘trimester framework’’ of Roe was ‘‘unsound in principle and unworkable in practice.’’ The Webster’s court held that Missouri had an interest in protecting potential human life which was

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furthered by requiring physicians ‘‘to conduct viability tests on women seeking abortions when the physician believed the fetus to be twenty weeks old.’’ Webster is also important for what it does not say. The plurality never characterized Missouri’s interest in protecting fetal life as ‘‘compelling’’ but only ‘‘legitimate.’’ This follows from the statement that the choice of whether or not to bear a child was only ‘‘a liberty interest protected by the due process clause.’’ In re Valerie N. [99], the CA Supreme Court rejected the petitioner’s argument that the statute forbidding the sterilization of ‘‘wards or conservatees’’ promoted her ‘‘right of procreative choice… by protecting her against sterilization forced upon her.’’ The court framed the issue differently. Since Valerie was incapable of exercising her procreative rights, the inquiry was whether she had a constitutional right to have these decisions made for her, ‘‘in order to protect her interests in living the fullest and most rewarding life’’ possible. The court concluded that the statutory prohibition of sterilizations ‘‘denied developmentally disabled person’s privacy and liberty interests protected by the 14th Amendment’’ [99]. Such reasoning resulted in the court’s conclusion that the statute was ‘‘constitutionally overbroad.’’ The court also rested its holding on the equal protection ground that the statute impermissibly denied the choice of sterilization to those acting in the interests of developmentally disabled persons, but this choice remained unfettered for non-disabled women. In Mental Health v. Mary Moe [93], the court reasoned that while ‘‘the state has no recognizable interest in compelling the sterilization of its citizens’’, the requested sterilization was not ‘‘compulsory.’’ In the majority of cases, the courts do not explain why one who is incapable of exercising procreative choice must be liberated from the burden of fertility. For example, in Valerie [99] the court failed to recognize the legislature’s clear intent to take the sterilization choice away from the conservator who had almost total control over all other areas of the conservatee’s life. In re Cavitt [59], however, the Supreme Court of Nebraska held that ‘‘it can hardly be disputed that the right of a woman to bear and the right of a man to beget children is a natural and constitutional right, nor can it be successfully disputed that no citizen has any rights that are superior to the common welfare.’’ Acting for the public good, the state, in the exercise of its police power, may impose reasonable restrictions upon the natural and constitutional rights of its citizens. Measured by its injurious effect upon the society, the state may limit a class of citizens in its right to bear or beget children with an inherited tendency to mental deficiency, including feeble-

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mindedness, idiocy, or imbecility. It is the function and duty of the Legislature to enact appropriately to protect the public and preserve the race from the known effects of the procreation of mentally deficient children by the mentally deficient. In delegation of legislative power to an administrative board, the question derived from the constitutional viewpoint is whether adequate standards or guidelines have been provided to insure that the purpose of the statute disclosed by the act will be carried out.

Conclusions The argument that sterilization has a disproportionate impact on women is not in the front-line of the case law. A few factors encourage exploration of the equal protection clause of the 14th Amendment in this area. First, the overwhelming number of women who are sterilized as compared to the few men is an evidence of the disproportionate impact of the statutes. Second, the procedure of sterilization in itself results in a disproportionate impact as the volume of surgery is uneven in male and in female. Third, the common law is instructive with respect to which arguments have not been advanced. Finally, based on the etiological intricacy of mental impairment, with genetic transmission strikingly different in men and women, expert-witnesses ought to act in a medical vacuum because there is no mathematical certainty as to the transmission mode of the traits in question (exon and intron mutations, triplet repeat disorders, histone disorders, autosomal-dominant or autosomal-recessive transmission, sex chromosome-linkage, polygenomic imprinting, and organic causes). Conflict of interest The author reports no financial or strategic relationship with any business, publisher, or entity whose products or competing products are mentioned in this book.

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