In January 2012, the Massachusetts Appeals Court reviewed an order of the Probate and Family Court appointing the parents of a mentally ill pregnant woman as her guardians for the purpose of consenting to an abortion and to a sterilization procedure. The Appeals Court determined that the order violated the woman’s right to due process and did not comply with the requirements of the state’s substituted judgment statute.1 Accordingly, the Appeals Court reversed in part, vacated in part, and remanded the matter for further proceedings.
At the time of the appeal, Mary Moe2 was a 32-year-old pregnant woman diagnosed with schizophrenia and/or schizoaffective disorder and bipolar disorder. She had suffered a psychotic break when she was in college and had been hospitalized numerous times due to her mental illness. Moe had also been pregnant on two previous occasions. The first time she became pregnant she had an abortion, and the second time she gave birth to a son who was placed in the custody of her parents. Moe’s psychotic break occurred at some point after she had the abortion and before the birth of her son.
In October 2011, Moe had visited a hospital emergency room where it was determined that she was two or three months pregnant. The Department of Mental Health then filed a petition requesting that Moe’s parents be appointed as her guardians for the purpose of consenting to an abortion. A hearing on the petition was held before a judge of the Probate and Family Court in December 2011. At the hearing, Moe stated that she would not have an abortion. She also made several inaccurate assertions, including that she was not pregnant, that she had met the judge before, and that she had previously given birth to a girl named Nancy, when she had in fact given birth to a boy. Based on these “substantial delusional beliefs,” the judge found that Moe was incompetent to decide whether to have an abortion.3
The judge appointed a guardian ad litem (“GAL”) to investigate whether, under a substituted judgment analysis,4 Moe would consent to an abortion if she were competent. In Massachusetts, court authorization is required before a guardian may consent to certain extraordinary medical procedures on behalf of a person who has been found incompetent.5 In determining whether to authorize a procedure, the court will apply the doctrine of substituted judgment, whereby it “substitutes itself as nearly as possible for the individual in the decision making process.”6 In doing so, the court “seeks to maintain the integrity of the incompetent person” by providing an opportunity to exercise his or her fundamental right to decide whether to consent to such a procedure.7 The court must determine not “what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent.”8
The GAL submitted a report concluding that Moe would not choose to have an abortion if she were competent. The record revealed that Moe became “agitated and emotional” discussing her first pregnancy that ended in an abortion.9 Moe had also stated that she was “very Catholic” and would never have an abortion.10 However, her parents stated that Moe was not an “active” Catholic and they believed it was in her best interest to have an abortion.11
After considering the facts contained in the GAL report, the judge reached the opposite conclusion than the GAL. Without holding a hearing, the judge found that Moe would choose to have an abortion if she were competent and ordered that Moe’s parents be appointed as guardians to consent to the abortion. The judge further ordered, sua sponte, that Moe be sterilized by the medical facility that performed the abortion procedure. Moe then appealed the order.
In reviewing the order, the Appeals Court first observed that the decision to bear or beget a child is a fundamental right of all people, including those who are incompetent. As a result, the court will apply the doctrine of substituted judgment when determining whether a guardian can consent to an abortion or sterilization on behalf of an incompetent person.
Turning to the portion of the order requiring sterilization, the court stated that, “[b]ecause sterilization is the deprivation of the right to procreate, it is axiomatic that an incompetent person must be given adequate notice of the proceedings,” along with an opportunity to be heard on the issue of the ability to give informed consent and, if unable to consent, a substituted judgment determination.12 The court noted that none of these procedural requirements were met when the judge ordered Moe’s sterilization sua sponte and without notice. It held that the required level of due process had not been provided, and it reversed that part of the order.13
The Appeals Court then considered the portion of the order requiring an abortion. It first determined that the judge’s decision that Moe was incompetent to decide whether to have an abortion was supported by evidence in the record, namely that Moe denied that she was pregnant.14 However, the court noted that the other evidence on which the judge relied, that Moe believed that she had met the judge before and had given birth to a girl, did not support a determination that she was incompetent with respect to the abortion issue, given that “[a] person may be adjudicated legally incompetent to make some decisions but competent to make other decisions.”15
The court next determined that the order requiring Moe to have an abortion did not comply with the state’s substituted judgment law. The court stated that, after Moe was found incompetent, the judge was legally required to hold an evidentiary hearing to determine whether she would have an abortion if she were competent, unless the judge found “extraordinary circumstances” that required her to be absent from the hearing.16 Alternatively, the judge could have based the substituted judgment determination exclusively on affidavits and documentary evidence if the judge had made “an additional finding, based on representation of counsel,” that there were no contested issues of fact.17 Because the judge did not hold a hearing or make the required additional findings, the court vacated the portion of the order requiring the abortion, and remanded the case for “a proper evidentiary inquiry and decision on the issue of substituted judgment.”18 Finally, the court vacated the portion of the order appointing Moe’s parents as her guardians to the extent that it was conditioned on the need for them to consent to the abortion, and the court directed that the order be modified to appoint her parents as guardians for general purposes related to routine medical care.19
Margaretta Homsey Kroeger is a Skadden Fellow at Greater Boston Legal Services in the Elder, Health and Disability Unit, where she focuses on advocating for youth with physical and mental disabilities who are aging out of the foster care system. She provides outreach, community education, and direct legal representation to youth who need assistance accessing disability benefits, health care, and related services. Prior to her fellowship, Ms. Kroeger clerked for Justice William P. Robinson III of the Rhode Island Supreme Court. She received her law degree from Boston College Law School, where she was a Public Service Scholar and served as an articles editor of the Boston College Law Review and as vice president of the Public Interest Law Foundation. She received her undergraduate degree from Harvard University with a concentration in History.
1 Guardianship of Mary Moe, 81 Mass. App. Ct. 136, 139-42 (2012).
2 “Mary Moe” is a pseudonym used to maintain the confidentiality of the lower court proceedings. See G.L. c. 112 § 12S.
3 Guardianship of Moe, 81 Mass. App. Ct. at 137.
4 See G.L. c. 190B, § 5-306A.
5 See id.; see also Matter of Moe, 385 Mass. 555, 559 (1982).
6 Matter of Moe, 385 Mass. at 565.
9 Guardianship of Moe, 81 Mass. App. Ct. at 138.
12 Id. at 139.
13 Id. at 140 (citing U.S. Const. amend. XIV, § 1).
15 Id. (quoting Matter of Moe, 385 Mass. at 567-68).
16 Id. at 141 (quoting G.L. c. 190B, § 5- 306A(d)).
19 Id. at 141-42.