As Americans and more particularly as New Englanders, we are rugged individualists. We hold sacrosanct the rights of individuals. I say this as a backdrop to the recent Appeals Court decision captioned Guardianship of Mary Moe.
At thirty-two years old, Moe is pregnant, although it is unclear how long she has been pregnant and mentally ill, suffering from schizophrenia and/or schizoaffective disorder and bipolar mood disorder. She has been pregnant twice before. Her first pregnancy ended in an abortion and her second pregnancy resulted in her giving birth to a boy who is now in the custody of her parents. This case resulted from The Department of Mental Health’s having filed a petition seeking to have Moe’s parents appointed as temporary guardians for Moe for the purpose of consenting to an abortion.
The Judge found Moe to be incompetent to make a decision as to whether or not she should have an abortion and appointed a guardian ad litem (GAL) to investigate the issue of substituted judgment, a method used by the Court to determine what an incompetent individual would do if in fact he or she were competent. Unlike the “best interests” standard used by the Court when a GAL conducts an evaluation concerning children’s custody, Moe is an adult presumed to have an evolved belief system that if she were competent would allow her to make a reasoned decision. Despite the Court having ordered the GAL report to assess what Moe’s decision would be if she were competent, the Appeals Court found that the judge disregarded the essence of the GAL report. In a case of substituted judgment, the Court’s world view, public policy, and family and societal ramifications are not what the Court is to decide. In utilizing 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. In a previous 1979 decision, Guardianship of Roe, the Court stated “In short, if an individual would, if competent, make an unwise or foolish decision, the judge must respect that decision as long as he would accept (or be bound to accept) the same decision if made by a competent individual in the same circumstances.”
In this case, not only did the judge order Moe to have an abortion but she also ordered that Moe be sterilized. The Appeals Court found that the portion of the judge’s order requiring sterilization seemed to have been produced “out of thin air”. Although in former cases the Supreme Judicial Court has found that a guardian may seek permission for sterilization of a mentally incompetent person, they must do so with proper constitutional safeguards. In essence the Court has ruled that incompetent individuals have the same right as competent individuals to choose or not to choose sterilization. However, it is imperative that in making a decision constitutional rights are protected and the doctrine of substituted judgment is applied.
The Court has found over and again in a long line of cases that the right to reproduce and the decision whether or not to bear or beget a child is at the very heart of the constitutionally protected right to privacy and individuals, married or single, are to be free from unwarranted governmental intrusion into matters so fundamental.