A group of mentally disabled women and their representatives were given the green light on Friday to file new claims of constitutional violations against the District of Columbia over abortions and other medical procedures performed on the women without the consent of legal representatives or a court order.
According to an opinion (PDF) published Friday by U.S. District Judge Henry Kennedy Jr., constitutional objections to third-party consent to abortions "appears to raise a question of first impression in the federal courts."
The case, filed in 2001 in U.S. District Court for the District of Columbia, centers on the experiences of three anonymous Jane Does, mentally disabled women who received care from the city starting in the 1960s and 1970s.
Two of the women claimed that city officials authorized abortions after they became pregnant in the late 1970s and early 1980s, without consulting their legal representatives or getting a court order. The amended complaint alleges that city health officials "illegally consented to abortions and/or sterilizations" for at least 75 other individuals.
The third woman accused officials of authorizing eye surgery in 1994 without consulting her mother, who served as her court-appointed advocate.
In 2005, U.S. District Judge Henry Kennedy Jr., found that the city’s policy of consenting to elective surgeries without considering the women’s wishes violated D.C. law, but he was reversed on appeal to the U.S. Court of Appeals for the District of Columbia Circuit. The appellate court found that because the women had never been able to make informed choices about their treatment, their wishes couldn’t be known by health officials.
In January, the plaintiffs asked to file a new amended complaint (PDF) alleging constitutional violations on behalf of the two Jane Does who received abortions. Without court consideration of the procedures, the Jane Does lost their right to due process, the complaint alleges.
Kennedy, in his opinion, found that given the “novel question” presented by the constitutional claims, the plaintiffs should be allowed to file the complaint and have both sides brief this "unsettled state of the law."
"Because decisions regarding fertility and child-bearing implicate especially strong and constitutionally-protected interests...some courts have found a federal constitutional right to judicial oversight of involuntary sterilizations of the mentally ill and mentally disabled," Kennedy wrote.
The amended complaint also includes claims of battery and other injuries and due process violations relating to the abortions, eye surgery and other elective procedures.
Lead counsel for the plaintiffs, local solo practitioner Harvey “Shep” Williams, said the ruling means his clients are “finally going to have their constitutional rights and other rights vindicated.”
“The decision indicates that when you start talking about reproductive rights and sterilization, it impinges on other constitutional considerations because of the nature and seriousness of what’s at stake,” Williams said.
A representative of the city Office of the Attorney General also was not immediately available.