Prepared by: Jina Dhillon and Celine Lefebvre with a grant from the Training and Advocacy Support Center (TASC)
This fact sheet describes significant reproductive health-related legal issues that women with disabilities may face. Women with disabilities are particularly susceptible to discriminatory standards of care, coercion and misinformation about their reproductive autonomy. Courts have issued decisions involving the capacity to consent to sterilization, abortion and similar procedures, or the ability of a guardian to make reproductive health determinations in the best interests of the individual. This fact sheet provides an overview of case law in this area as well as a brief discussion of other issues identified by legal scholars as important areas for advocacy.
Reproductive Health Issues
People with mental and physical disabilities have often been subjected to forced sterilization. The notion that these women and men are unable to make meaningful decisions about their reproductive capacity often leads caretakers, guardians, and the courts to consider sterilization as the best option for them. Case law regarding sterilization stems from the United States Supreme Court?s 1927 decision in Buck v. Bell, in which the U.S. Supreme Court upheld a Virginia statute that instituted compulsory sterilization of individuals with mental disabilities.3
Since then, many cases have addressed the issue of sterilization of women with disabilities. More recently, however, petitions for sterilizations are less likely to include arguments presuming the inability or unfitness of women with disabilities to procreate or raise children (?eugenics-based? arguments); instead, petitions are typically granted only where there is a finding that sterilization is in the best interests of the woman.4
Court-ordered sterilization raises serious concerns about whether a woman with disabilities is being fully allowed to express her sexuality and maintain reproductive autonomy and integrity. The cases in this area are often determined with little statutory guidance but they do, however, suggest general criteria for granting or denying a petition for sterilization. For those unable to give legal consent, courts may rely on one or more of the following standards: (1) mandatory criteria, where courts authorize sterilization only when specific factual findings are made, such as the lack of suitable alternate forms of contraception; (2) discretionary best interest, where the court uses its judgment to determine if sterilization is in the best interest of the party; (3) substituted judgment, where evidence is used to evaluate what the incompetent person would have decided for him or herself. In addition, some decisions are based on statutes that simply prohibit sterilization if the individual is unable to provide informed consent.5
In the latter half of the century, many state courts frequently applied a hybrid of the substituted judgment and best interest standards.6 Under this
formulation, for the court to grant a petition of sterilization, it must be demonstrated by clear and convincing evidence that the ward, if competent, would have wished to be sterilized and would not have objected to the chosen method of sterilization.7 When evidence of the individual?s preference is not available, the court looks to several factors in the determination of what is in the individual?s best interest, including: (1) the possibility of trauma from pregnancy or the sterilization procedure, (2) the likelihood of future sexual activity, (3) the extent of permanent inability to understand pregnancy, and (4) evidence of good faith by petitioners seeking sterilization.8 Though there is no consistent rule, many courts are reluctant to grant a petition for sterilization of minors with disabilities.9 There have also been cases where compulsory sterilization of a competent female is considered in the punishment of a crime.10
In re Estate of K.E.J. v. K.E.J. A guardian petitioned the court to authorize a tubal ligation for twenty-four year old K.E.J., who was adjudicated a disabled person after sustaining brain damage in an accident as an infant.11 Two distinct privacy rights were at stake in this case: the right to bear children and the right of personal inviolability. Petitioner alleged that K.E.J. was sexually active despite guardian?s efforts to deter her, but that K.E.J. was unable to comprehend the possibility of pregnancy or handle the responsibility that it would bring. Though K.E.J. was using Depo Provera as birth control, her guardian argued it was unsafe because it caused her to become overweight and raised her blood pressure. 12 The Illinois Appellate Court noted that K.E.J.?s level of sexual activity weighed in favor of a permanent means of contraception; however, her limited understanding of reproduction, contraception, along with her desire for some day having a child, weighed against it. The court could not determine that K.E.J.?s inability to care for a child weighed in favor of a tubal ligation, noting the availability of parenting alternatives, including adoption within the family. Ultimately, the Illinois court of appeals denied the petition based on the existence of less intrusive alternatives such as long-acting and reversible injectable contraception such as Implanon.
In re Wirsing v. Michigan Protection and Advocacy Service. The legal guardian of a person with developmental disabilities petitioned for her sterilization, arguing that her inability to understand the use of contraceptives and the possible negative side-effects of birth control, along with the fact that women with disabilities are frequently the victims of sexual abuse, weighed in favor of a court-ordered tubal ligation. Though no Michigan statute was on point, the Supreme Court took into consideration laws governing the sterilization of competent females. Given that tubal ligation for sterilization is legally available to a competent female, the court reasoned that the same procedure should be available to an incompetent woman whose guardian is consenting for her, so long as the reasoning is found to be in her best interest. The court granted the petition for sterilization after finding that pregnancy and childbirth could carry greater physical and psychological risks than tubal ligation, and holding that tubal ligation is the safest and least intrusive means of surgical sterilization of a female, subjecting the patient to no undue risk.13
People v. Ashe. In February of 2005, Carrisa Ashe, a young mother of seven with a history of postpartum depression, pleaded guilty to killing her five-week-old daughter during an episode of postpartum psychosis.14 The District Attorney’s office offered a plea bargain that allowed her to avoid a twenty-year prison sentence if she agreed to undergo a tubal ligation. She accepted the plea and underwent compulsory sterilization. This was the first Georgia case where sterilization was considered an appropriate remedy for involuntary manslaughter, but there have been numerous cases in other states where women accused of killing their children have been forced to choose between sterilization and prison.15
Women with disabilities who become pregnant can also be the subject of legal action aimed at compelling them to terminate their pregnancy. The case law in this area focuses on whether the woman is capable of providing meaningful consent to the procedure and whether it would be in her best interests. In this context, abortion may be sought where there is question as to whether pregnancy, childbirth, and parenting would subject the woman to undue harm. A guardian or caretaker?s reasoning for seeking authority for a courtordered abortion often overlaps with the arguments raised in the sterilization case law. In particular, they may argue that women with disabilities are more likely than women without disabilities to be sexually assaulted resulting in the possibility of pregnancy.16
Text has been truncated. For full publication text, download document.
*NHeLP recognizes that the term “mental retardation” is offensive, outdated, and harms the disability community. NHeLP generally uses the term “intellectual disability.” However, this document uses the term “mental retardation” only to accurately conform to the now-outdated version of federal or state law in effect at the time the document was created. Because we have determined that the document provides valuable information not otherwise available, we continue to provide access to it through our website.