D.C. Liable for Abortions on Intellectually Disabled

WASHINGTON (CN) — A federal judge brought a 15-year saga to a close by finding that a shuttered mental health facility performed unconstitutional abortions on intellectually disabled women.

U.S. District Judge Rudolph Contreras on Friday concluded that the District of Columbia did not provide two former residents of Forest Haven in Laurel, Md. with "constitutionally adequate procedures before the District authorized abortions on their behalf."

Contreras found that Forest Haven's approval of the abortions resulted from official policy and violated due process. He also found the District liable for battery for failing to obtain valid consent for the abortions.

Jane Doe I was committed to Forest Haven in May 1960, and lived there until the mid-1970s. She gave birth to a son in 1982, and expressed a desire not have any more children, according to Contreras' 75-page ruling.

The matter was turned over to the D.C. Superior Court, which found her competent to make an informed choice about a second pregnancy, and granted Forest Haven's request to authorize an abortion to terminate her second pregnancy.

However, "Notwithstanding this Superior Court order, the parties in this case have previously represented that Jane Doe I has never had the mental capacity to make medical decisions," Contreras wrote.

Forest Haven's superintendant signed a consent form less than a week later, but did not speak with Jane Doe, her attorney or with the court. There was no evidence that the abortion was medically necessary.

"In 2014, Jane Doe I testified that she did not request an abortion in 1984, that she had not wanted the abortion, and that she had wanted to have her baby," Contreras wrote.

Jane Doe II told a similar story. She was involuntarily committed to Forest Haven in May 1967, when she was 10. She also gave birth to a son in 1982, who was placed in foster care and adopted. Doe III then requested sterilization procedure, and as with Doe I, the D.C. Superior Court found that Doe III competent to make this choice.

But as with Doe I, Doe III did not have the mental capacity to choose sterilization. "The District has no documents about who gave consent for Jane Doe III's abortion or about the process used to obtain consent for Jane Doe III's abortion," Contreras found.

Doe III also said later that she had wanted to have the baby.

Contreras, taking as fact the inability of both women to make sound medical choices for themselves, ruled on the question of whether the choice the District made for the women was constitutional.

However, "The question of women's choice — so fundamental to the constitutional analysis in a typical abortion case — is not present here," Contreras wrote.

The women were never "afforded the right to be present at any proceeding in which they, or a representative acting on their behalf, could influence the District officials deciding whether to authorize their abortions," the judge added.

Contreras saw a significant possibility that the women had been precluded from receiving an independent decision-maker - a constitutional requirement - due to institutional biases among District officials, which prompted them to limit Forest Haven's population, and reduce medical costs and administrative burdens.

Contreras also found that an overarching District policy for intellectually disabled people - in place from 1978 to 1990 - guided how it handled elective surgeries.

"A District official would 'sign consent forms ... for elective surgery without having been appointed guardian and without consulting with the person having surgery,'" the ruling states.

"On this record, the Court must conclude, as a matter of law, that the District adhered to its official policies when it authorized Jane Doe I and Jane Doe III's abortions in a manner that violated the Due Process Clause," Contreras concluded.

Forest Haven was shuttered for good in October 1991.

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