Updated at 4:48 p.m.
In 1978 and 1984, District of Columbia officials authorized abortions for two intellectually disabled women under the city's care. In 1994, the city approved eye surgery for another woman in a similar position. A Washington federal judge recently denied the city's motion to dismiss a lawsuit accusing the city of authorizing these procedures in violation of the women's constitutional rights.
In a February 1 opinion (PDF), U.S. District Judge Rudolph Contreras rejected the city's argument that under previous case law, officials had the power to authorize the procedures as long as they relied on appropriate professional judgment. Contreras found that at this stage of the case, it was too early to decide whether the city's procedures for authorizing the surgeries offered enough protection to the women under its care.
Local solo practitioner Harvey "Shep" Williams, lead attorney for the plaintiffs, said the decision "was a very thorough and thoughtful analysis of the constitutional rights of intellectually disabled women to bear children." He said that as the plaintiffs pursue the case they're looking to bring in new plaintiffs or file separate claims; he estimated there are at least 70 to 80 other victims they know about. A spokesman for the city attorney general's office, Ted Gest, declined to comment.
The three women, known by the pseudonym Jane Doe, first sued the city in 2001. Two of the plaintiffs died, but their estates continued to pursue the case. The two women who received abortions accused officials of failing to follow constitutionally required protections. The women who received eye surgery claimed city officials never sought consent from her mother, who was also her court-appointed advocate, according to filings.
The lawsuit began as a challenge to the city's policies when it came to consent for medical procedures for intellectually disabled individuals, but on appeal, the U.S. Court of Appeals for the D.C. Circuit found that the city's policies at the time were in line with constitutional due process.
Now-retired U.S. District Judge Henry Kennedy Jr., the previous presiding judge, allowed the plaintiffs to amend their complaint to add a claim that the procedures were illegal because only a court could consent to an abortion for a woman deemed legally incompetent. Kennedy noted that it was a novel issue for the federal courts.
In moving to dismiss the amended complaint, the city pointed to a 1982 decision known as Youngberg v. Romeo, which gave the government authority to physically restrain an involuntarily committed person as long as officials exercised professional judgment. Contreras, who took over the case last May, found that the city failed to prove that the physical restraints addressed in the Youngberg decision were comparable to an elective abortion.
"It is not obvious that purely elective abortion would ever be—as bodily restraint sometimes is—necessary to ensure the safety of the patient or others," Contreras wrote. He added that the plaintiffs also hadn't conceded that city officials did exercise professional judgment in authorizing the procedures.
"This case involves weighty allegations that have long awaited resolution," Contreras wrote. "For the reasons discussed above, the court concludes that they must remain unresolved somewhat longer, and will therefore deny the District's motion to dismiss."
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