Judge Harms' Abortion, Sterilization Order Overruled

It is difficult to imagine a case better scripted for a discussion of informed consent than Mary Moe's Massachusetts abortion.

When Mary Moe, a pseudonym for a 32-year-old woman with schizophrenia and bi-polar disorder, visited a hospital emergency room in October, it was discovered that she was pregnant. This meant that she could not take her psychiatric medication as it would harm the foetus. So the state Department of Mental Health applied to have the woman's parents named as guardians so they could give consent for an abortion.

However, Mary did not want to have an abortion. Unsurprisingly, she was not completely coherent, but she insisted that she was "very Catholic" and would never do such a thing. She knew what abortions were, as her first pregnancy had been aborted. (She subsequently gave birth to a son, whom her parents are caring for.)

The case went before Judge Christina Harms, a Harvard Law School graduate and a former lawyer in the State's welfare services. Judge Harms ordered Mary Moe to have an abortion. If she were intransigent, she could be "coaxed, bribed, or even enticed'' into the hospital. Furthermore, the judge wanted to put an end to these distressing pregnancies. She ordered Mary Moe to be sterilized "to avoid this painful situation from recurring in the future.'' Harms reasoned that Mary Moe was not competent to make a decision about an abortion, because of her "substantial delusional beliefs." But if she were competent, she would choose to abort the child.

In the event, Judge Harms was overruled. "The personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent,'' said the state appeals court. As for the sterilization, said one of the appeals judges, "The judge appears to have simply produced the requirement out of thin air."

The publicity given to this unusual case has led mental health advocates to wonder how often women are forcibly aborted and sterilised. "I didn't realize that forced sterilizations were going on anywhere," said Howard Trachtman of the National Alliance on Mental Illness Massachusetts, told the Boston Globe. "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." "Simply having a diagnosis of schizophrenia or any other mental illness is not a basis for sterilization in and of itself. It's just sheer prejudice," Elyn Saks, of the University of Southern California, told the Boston Herald. ~ Boston Globe, Jan 18