Choice at Risk: The Threat of Adult Guardianship to Substantive and Procedural Due Process Rights in Reproductive Health

Marissa Ditkowsky
Marissa Ditkowsky is a juris doctor candidate at the American University Washington College of Law. She would like to thank Professor Robert Dinerstein, Professor of Law at the American University Washington College of Law, for advising her in the writing process.

 

Choosing when or if to have a child is a fundamental right, which includes both the right to procreate and the right to undergo abortion or sterilization. Even minors retain guaranteed rights and safeguards for abortion proceed­ings, albeit more limited. Nonetheless, there are adults who are not legally guaranteed the right to make such choices: some adults, typically with intellectual or psychiatric disabilities, judges deem to have a diminished capacity. These adults must rely on their legal guardians to consent to or refuse medical procedures, such as abortion or sterilization.

But, it is unconstitutional for guardians to decide whether a person under guardianship who can bear children may undergo abortion or sterilization without further court proceedings; however, a path must also be available for adults under guardianship who seek abortion or sterilization. Constitu­tional, specific, substantive and procedural standards must be met to protect the reproductive rights of individuals with disabilities under guardianship.

 

I. Introduction

In the early 1900s, the rise of the eugenics movement normalized the belief that individuals could inherit “feeblemindedness,” leading to widespread compulsory sterilization of individuals with disabilities.1 This eu­genic philosophy even made its way to the Supreme Court.2 Justice Oliver Wendell Holmes, Jr. wrote, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough.”3 Research and common knowledge now recognizes that there is little to no hereditary component to most intellectual disabilities and that forced sterilization has an emotional impact on individuals with intellectual disabilities.4

Despite the end of the eugenics movement, eugenic and paternalistic rationales persevere and continue to play a role in society’s oppressive views of individuals with disabilities, their capacity, and their sexuality.5 In 2007, when Ashley X was six years old, her parents elected to perform estrogen therapy and fusion of bone plates, a hysterectomy, and breast bud removal on her because she would never develop past the motor and cognitive skills of a three-month-old.6 Supporters claimed the procedure would improve Ashley’s quality of life.7 However, her parents’ decision prevented her from ever developing into a woman, denying Ashley bodily autonomy and the potential for sexual intimacy.8 Although Washington eventually declared the procedure illegal, the hospital and doctors’ complicity in performing the surgery, Ashley’s parents’ beliefs, and the support of so many Americans highlight deeply entrenched notions about disabilities.9

Choosing when or if to have a child is a fundamental right, which includes both the right to procreate and the right to undergo abortion or sterilization.10 Even minors retain guaranteed rights and safeguards for abortion proceed­ings, albeit more limited.11 However, adults remain who are nonetheless not legally guaranteed the right to make such choices: adults, typically with intellectual or psychiatric disabilities, whom judges legally deemed to have a diminished capacity.12 These persons must rely on their legal guardians to consent to or refuse medical procedures, such as abortion or sterilization.13

This article argues that it is unconstitutional for guardians to decide whether an adult under guardianship14 who can bear children15 may undergo abortion or sterilization without further court proceedings; however, a path must also be available for individuals under guardianship who seek abor­tion or sterilization.16 Part II discusses guardianship, fundamental rights, and current laws regarding sterilization and abortion for persons under guardianship.17 Part III argues that the lack of guarantees protecting the reproductive rights of adults under guardianship violates fundamental con­stitutional rights.18 Part IV recommends adopting specific state standards for abortion or sterilization proceedings, adopting less restrictive alternatives to guardianship, and requiring judicial training on modern disability models in each state.19 Part V concludes by tying these policy recommendations to the potential to prevent gross constitutional violations against adults under guardianship.20

 

II. Background

 

A. What is an Adult Guardianship?

A guardian is an individual or entity, whether a private party, family member, or state employee, appointed by a court to make some or all decisions on behalf of an adult whom the court finds to have a diminished decision-making ability.21 Guardianship is intended to protect individuals with disabilities from coercion and exploitation.22 Essentially, guardianship is an extension of the state’s parens patriae responsibilities.23 Any inter­ested person, including the disabled individual in some states, can initiate proceedings for guardianship.24 H owever, the requirements to find that someone has diminished decision-making ability, determine who qualifies as a guardian, and determine the possible duties and limitations of guardians, vary by jurisdiction.25

A court can assign a guardian to make decisions regarding an adult’s estate, person, or both.26 Many jurisdictions also allow for limited guardian­ships in which guardians can only make decisions in limited areas, although this option is often overlooked and underutilized.27 The court determines which decisions the guardian can make, which decisions the adult retains authority to make, and which decisions require further court approval.28

 

B. The Purpose of Adult Guardianship

The concept of informed consent, meaning that one can voluntarily and without coercion assess the facts, weigh the risks and benefits of a certain choice, and, ultimately, make a decision, drives the right to autonomy in decision-making.29 An individual who has a diminished capacity might be unable to expressly communicate wants and needs, or might not be able to assess the risks to come to an informed decision.30 In these instances, a guardian’s supposed purpose is to provide protection and assistance.31 Because persons deemed to have diminished health-care capacity cannot consent to, refuse, or withdraw from medical treatment, the only potential paths for an adult under guardianship to undergo an abortion or sterilization is (1) to allow the adult’s guardian to consent to abortion or sterilization or (2) to allow, or even require, the courts to make those determinations.32 Alternatively, such procedures would not be permitted at all.

 

C. Procedural Due Process in Guardianship Proceedings

There are no universal due process rights that are inherently attached to guardianship proceedings; the Supreme Court case has not established what the Constitution might require in these cases, although general due process requirements would inevitably apply.33 Similarly, there is also no established universal procedural due process right to counsel in guardianship or related proceedings. However, jurisdictions may have statutory requirements for counsel, zealous advocacy, appearance at hearings, and in-person service, among other protections.34 Despite statutory protections, they are not always enforced in practice. For example, service may be forged; judges may waive appearance at the hearing in some jurisdictions, leading to a lack of familiarity with the individual’s actual capacity; and counsel may agree with the individual pursuing guardianship at the expense of the client, among other potential concerns.35 The factors to consider in determining whether certain constitutional procedural due process rights exist in such cases is (1) the nature of the interest affected, (2) the comparative risk of erroneous deprivation without such safeguards, and (3) the nature and magnitude of countervailing interests in not providing the safeguard.36

 

D. Issues with Guardianship and its Scope

Statutorily, guardians must generally involve the person under guard­ianship in making decisions, or, if the adult cannot communicate any preferences, make a decision consistent with the adult’s values.37 However, a guardian might have a conflict of interest, lack information or medical expertise, or be guided by emotions in decision-making.38 One cannot always assume that a guardian or next of kin has the adult’s best interest or preferences in mind, and yet, guardians retain broad power.39 Guardianship is particularly problematic when imposed on those with the ability to make certain decisions, which can occur despite laws including broad procedural safeguards and alternatives.40 Additionally, capacity may vary over time while an individual is under guardianship, particularly when an individual receives habilitative services and education.41

 

E. Current Standards Addressing Abortion or Sterilization for Adults under Guardianship

Laws establishing a guardian’s authority to consent to abortion or sterilization are often unclear and inconsistent because the authority for a guardian to consent to abortion or sterilization is not always memorialized by statute. Each jurisdiction applies its own statutes and case law.42 For example, in Texas, guardians cannot consent to abortion or sterilization on behalf of individuals under their guardianship at all.43 Other jurisdictions, such as the District of Columbia, only allow guardians to consent to abortions or sterilizations on behalf of the adult after further judicial proceedings.44

In In re Hayes, Washington developed a standard that provides a basic framework for determining whether an abortion or sterilization should be performed on an individual under guardianship, although the case involved a minor.45 In deciding whether to sterilize a minor with diminished decision-making ability, the court held that a petitioner would need to demonstrate by clear and convincing evidence that the individual with a disability (1) is incapable of making one’s own decision about sterilization, (2) is unlikely to be able to make an informed judgment about sterilization in the foreseeable future, (3) is physically capable of procreation, (4) is likely to engage in sexual activity at the present or in the near future that could result in pregnancy, and (5) has a disability that renders the individual permanently incapable of caring for a child.46 Additionally, a petitioner must demonstrate by clear and convincing evidence that (1) all less drastic contraceptive methods, including supervision, education, and training, are unworkable or inapplicable, (2) the method of sterilization is the least invasive possible, (3) scientific and medical advances do not call for a reversible procedure or are not on the cusp of developing another less invasive contraceptive method, and (4) science is on the cusp of finding a treatment for the individual’s disability.47 Procedurally, (1) the individual with diminished decision-making ability must be represented by a disinterested guardian ad litem, (2) the court must receive independent advice based upon a medical, psychological, and social evaluation of the individual, and (3) to the greatest extent possible, the court must elicit and consider the individual’s wishes.48

In In re Grady, the court held that a judge, and not a guardian, would be the appropriate decisionmaker to determine whether it is in the best interest of a person with intellectual disabilities to undergo sterilization.49 The court also established factors similar to Hayes and applied a clear and convincing evidence test, similar to the one mandated in Addington v. Texas.50 Other states, such as Illinois, Pennsylvania, and Minnesota, have also adopted their own standards regarding whether to sterilize individuals under guardian­ship, many of which rely upon the holding in Hayes.51

 

F. Due Process and the Fundamental Right to Privacy

The Fourteenth Amendment guarantees no state can deprive a person of life, liberty, or property without due process.52 Due process provides individuals the opportunity to be heard prior to the deprivation of individual liberties, protecting individuals from arbitrary or unreasonable state gov­ernment deprivation of fundamental personal rights and liberties.53 State action is required to invoke or violate the Fourteenth Amendment protection of due process under the law.54 The requirement that state action exists in order to make a due process claim applies regardless of how discriminatory a private act may be.55 There must be a sufficiently close nexus between the state and the challenged action, such that the actor who caused the harm may be fairly said to be a state actor.56

In addition to the protections inherent in the text of the Fourteenth Amendment, the Ninth Amendment allows due process rights to expand beyond those explicitly enumerated in the Constitution.57 Due process protects numerous privacy rights, including the right to procreate, the right to refuse treatment, and the right to have an abortion.58 Although the Supreme Court has not ruled on such a right, lower courts have held that there is also a privacy right to undergo a voluntary sterilization procedure should a person so choose.59 Cases such as Doe v. District of Columbia, In re Grady and In re Hayes have cited these privacy rights to impose high judicial standards for determining whether an individual with a disability should undergo sterilization or an abortion without the individual’s express consent.60

Despite the existence and required protection of such constitutional due process rights, there are also limitations to these rights, particularly when discussing those due process rights pertaining to the right to privacy or any penumbra of rights not explicitly enumerated in the Constitution.61

 

III. Analysis

 

A. Consenting to or Denying an Abortion or Sterilization on Behalf of Adults under Guardianship is State Action

To violate due process, an action must be fairly said to be a state action.62 A guardian’s provision of, or refusal to, consent to an abortion or sterilization of an adult under guardianship is a state action. A court’s decision to provide or refuse consent to an abortion or sterilization is similarly, although more explicitly, a state action. Therefore, these actions may violate due process.

 

1. Guardians as State Actors

Allowing guardians to give or withhold consent on behalf of an adult under guardianship is state action because the court delegates that power to the guardian. Even though a guardian is a private individual, allowing any guardian to consent or withhold consent on behalf of an adult under guardianship is state action because the state delegates that power to the guardian.63 The court is the state actor, and the action is authorizing and delegating the power to make all decisions on behalf of the individual alleged to have diminished capacity to a guardian.64

Imbuing guardians with powers over an individual deemed to have diminished capacity is not comparable to passively permitting otherwise unregulated private conduct.65 Sanctioning and delegating powers in guardianship is an act more similar to, if not more directly related to state action than, enforcement of a racially discriminatory restrictive covenant because courts directly executed and enforced both of these actions; without a court proceeding, a guardian would have no such power over the adult.66 A court would be directly responsible for overseeing proceedings that could deprive adults of their fundamental rights, and, as such, the court has certain respon­sibilities to protect due process and fundamental rights to privacy during guardianship or other intervention proceedings.67 To some extent, courts act in accordance with statutes, which themselves might not adequately protect the rights of persons under guardianship. However, the court is ultimately responsible for determining whether the statute sufficiently protects the constitutional rights of individuals with disabilities, delegating decision-making powers to a guardian, and finding that delegating such powers is within its authority.68 In some states, courts must review guardianships and provide oversight over guardians every set number of years, further solidifying the court’s supervisory role as a state actor.69

A guardian is also a state actor in executing decisions for an individual under guardianship because there is a sufficiently close nexus between the state and the guardian, such that a guardian himself would be fairly said to be a state actor.70 Unlike the utility company in Jackson, which the court held was not a state actor, a guardian is directly delegated power from the state.71

In cases in which the court appoints a public, or government, guardian, the state directly employs the guardian, meaning the guardian is likely automatically a state actor.72 This circumstance would be similar to that of Doe, in which the court found that a director of a publicly funded District of Columbia institution violated due process by consenting to a resident’s abortion without her consent.73 Private guardians also might receive state payments, typically in the form of reimbursements.74 While the state does not pay or reimburse every guardian, a guardian who receives state money would also be a state actor because the guardian receives significant aid from the state for providing his or her services as a guardian.75

The courts act to delegate powers to these guardians, making their actions in granting guardianship and establishing the scope of the guardianship subject to the requirements of due process.76 The court ultimately provides guardians with their authority and enables guardians to make decisions in lieu of the adult with a disability under guardianship.77 The mere role of the courts in the guardianship appointment process, as well as the state’s asserted parens patriae responsibilities in assisting those with diminished decision-making capacity, create a sufficiently close nexus between the state and any potentially challenged action in regard to a guardian’s decision.78

 

2. Courts as State Actors

In cases in which a guardian petitions for court approval, the court plays an even more direct role because the court makes the ultimate decision as to whether the adult should undergo abortion or sterilization.79 A guard­ian might file a petition for an adult to undergo abortion or sterilization when (1) there are statutory or judicial requirements to do so, (2) there is unestablished precedent or the laws are unclear and the guardian wishes to seek clarification, (3) the guardian wishes to protect him or herself, or (4) there is some other continuing harm or obstacle.80 The court, as a state actor, would then either directly consent to or deny the request for the adult to undergo an abortion or sterilization.81 Therefore, the court is a state actor that can violate due process in deciding whether to consent the abortion or sterilization of an individual under guardianship.82

 

B. Allowing guardians alone to give or withhold consent to abortion or sterilization on behalf of an adult under guardianship violates due process

Adults under guardianship are entitled to due process in (1) determining whether they require a guardian and (2) balancing the roles of and limitations on a guardian against the adult’s rights to privacy and autonomy.83 In many cases, individuals who are placed under guardianship do not require a guardian; a less restrictive option such as a power of attorney or a supported decision-making agreement would often suffice.84 The overreliance on and overbroad application of guardianship deprives individuals of their autonomy unnecessarily, because the guardian would be permitted, and in fact be required, to make decisions on behalf of the individual in all of the areas for which the person is found to be incapacitated.85 Allowing guardians to give or withhold consent to abortion or sterilization violates due process because making the decision for the adult without further court proceedings is insufficient to protect the adult’s constitutionally mandated rights.

There are often insufficient procedural safeguards, which are overlooked by judges and other parties, and bias in the guardianship appointment process itself.86 For example, many jurisdictions allow judges to waive appearance re­quirements for the adult alleged to have diminished capacity at guardianship hearings, meaning judges might rely on the opinions of others to determine the adult’s capacity and increasing the likelihood of an erroneous depriva­tion of fundamental rights.87 Although concerns about ability to physically attend or sit through a hearing might arise, technological advances, such as telephones and video conferences, allow for new accommodations in the courtroom to more appropriately fulfill due process requirements. Vague standards for capacity make it more likely that bias and miseducation surrounding disabilities can inform decisions on capacity, interfering with a fair hearing required by due process.88 Although preventing unnecessary and overbroad guardianships would protect the reproductive rights of adults with disabilities by eliminating the guardian from the decision-making process altogether, this topic presents a different procedural due process concern from the substantive due process concern at issue here.89

As to the second prong, although guardians are appointed to make certain decisions on behalf of individuals with disabilities through a court process, the appointment process insufficiently protects all fundamental rights, particularly those as imperative and potentially permanent as reproductive rights. Additionally, as a one-time process, it is unlikely to provide adequate protection over an adult’s entire lifetime. Therefore, guardian consent to or refusal of an abortion or sterilization without further court approval fails to meet strict scrutiny standards necessary to avoid violating any fundamental rights under due process.90

Permission for a guardian to give or withhold consent to abortion or ster­ilization can be (1) impliedly or expressly permitted by law or (2) specifi­cally granted in initial guardianship proceedings in the terms of the scope of guardianship.91 In theory, states that require a specific mention of this ability in the initial scope of guardianship would limit a guardian’s power in more situations.92 However, in practice, both of these methods essentially have the same effect: depriving adults under guardianship of their funda­mental rights from the inception of the guardianship. This deprivation may continue throughout the adult’s lifetime despite the fact that capacity is so fluid and may change over time.93

Many jurisdictions require guardians to involve persons under their guardianship in all decisions to the fullest extent possible.94 However, these laws do not guarantee that (1) the guardian will follow the rule, (2) the guardian knows how to effectively engage the adult, or, (3) if the guardian fails to follow the law, the guardian will be removed or held accountable.95 Despite bookkeeping that states typically require of guardians to prevent financial abuse in particular, courts cannot realistically track every decision or potential abuse of discretion by a guardian.96 Additionally, when courts are faced with accusations of guardian abuse of discretion, courts tend to fail to hold guardians accountable: guardian removal is extremely difficult.97

That the National Guardianship Association has suggested restrictions that require guardians to seek further court approval to consent to abortion or sterilization, as opposed to any other medical treatment or procedure, indicates the seriousness and predominance of the issue.98 Especially given the history of eugenics and the potential vulnerability of persons with certain types of disabilities when dealing with exploitative individuals, the unchecked ability to consent to abortion or sterilization on behalf of an adult under guardianship is particularly concerning.99

When either communication or informed consent is difficult to determine or obtain, the right to procreate becomes complicated to protect.100 However, in many cases, adults under guardianship can communicate their preferences when properly prompted.101 Therefore, when it is possible to determine, the adult’s expressed preferences should be paramount.102 If not, the constitutional rights of individuals under guardianship must be protected in some other manner.103

For all individuals, regardless of disability, the nation’s legal tradition and early common law value notions of bodily integrity, given that even touching another without consent constituted battery, allowing the Supreme Court to incorporate such rights as fundamental liberties under the due process clause.104 Such liberties, which are implicated in a guardian’s decision to consent or withhold consent to abortion or sterilization, include the right to procreate, the right to an abortion, and the right to refuse treatment.105

 

1. Violations of the Fundamental Right to Procreate

When guardians determine that an adult under guardianship must undergo sterilization or abortion, the guardian’s decision implicates the adult’s right to procreate because the adult cannot assert decision-making power, or privacy and autonomy rights, in bearing a child.106 A guardian, even if a family member, might not have the adult’s expressed preferences or best interests in mind; pervasive eugenic and paternalistic tendencies might still arise.107 There is therefore no guarantee that the choices of individu­als under guardianship will be honored, violating their right to procreate, and potentially to raise children of their own. This concern is well noted, particularly in the area of child welfare.108 However, the same logic may be applied to reproductive rights; many still assume that individuals with disabilities are incapable of parenting children, feeding into beliefs that abortion or sterilization might be proper.

Protecting individuals with disabilities from exploitation using a structure such as guardianship is a compelling state interest for the purpose of strict scrutiny; in fact, many states view it as a fiduciary duty.109 However, because guardianship aims to protect persons with disabilities, if the guardian could execute the same eugenic abuses or oppressive paternalism by exercising affirmatively court-sanctioned powers, those laws that allow guardians to consent to abortion or sterilization are not narrowly tailored to this interest, which violates constitutional demands.110 As noted, a guardian, even if a family member, cannot be assumed to have the adult’s best interest or expressed preferences in mind.111 Additionally, just because an adult is deemed to have diminished decision-making capacity at one point, it does not mean that sterilization or abortion, both irreversible procedures, would be appropriate at any given time.112

In Skinner, an Oklahoma statute that required the sterilization of criminals after committing three crimes of moral turpitude was of particular concern to the Supreme Court because it implicated race and the subjectivity of moral turpitude.113 Similarly, whether an adult has capacity or could take on the responsibility of parenthood are subjective determinations, which can be easily colored by bias or misunderstanding of disability.114 Buck v. Bell demonstrated this potential bias against individuals, in particular impoverished women, with disabilities, even on the judicial bench.115 Buck, however, was based upon an outdated scientific assumption that intellectual disability is inheritable.116 These changes in understanding, both scientifically and ethically, should make lawmakers and judges hesitant to allow guardians to make permanent medical decisions, such as abortion or ster­ilization, that infringe upon an individual’s fundamental right to procreate without a further process.117

Justice Stone noted in Skinner that the theory of due process, as opposed to equal protection, should have been applied to require a hearing and opportunity to demonstrate that a person cannot inherit moral tendencies.118 Although Justice Stone did not outline a specific procedure, he claimed that a reasonable and just procedure with appropriate steps to safeguard liberty would satisfy the requirements of due process.119 Similarly, guardian consent to sterilization without further court approval or hearing fails to meet strict scrutiny standards necessary to avoid violating the fundamental right to procreate under due process, even though one must go through a court process to be appointed as a guardian.120

The fundamental right to procreate has been directly cited in cases applying stricter protective standards for adults under guardianship in sterilization proceedings.121 In In re Grady, the court acknowledged the country’s history of eugenics and compulsory sterilization in its discussion of a right to procreate.122 In In re Hayes, the court also discussed this history, its relationship to inaccurate assumptions about people with disabilities, and the unalterable nature of a sterilization procedure.123 The right to procreate thus clearly extends to individuals under guardianship despite a determination that the individual allegedly has a diminished decision-making ability.124 In either case, the court asserts the court must make the final determina­tion in all such cases to properly protect the individual’s constitutional interests – even the good faith decision of a parent insufficiently guarantees the protection of the fundamental right to procreate.125 The court in In re Grady discusses the conflict that necessarily arises out of recognizing both a privacy right to sterilization and to procreate in such cases: the adult under guardianship might not always be “competent” to choose between asserting either of those rights in any given situation, but both rights must still be available to the adult.126 However, this lack of ability should not result in a forfeiture of these constitutional interests; rather, these rights must be asserted on the adult’s behalf.127 \

2. Violations of the Right to Refuse Treatment

Another fundamental right implicated when guardians consent to abortion or sterilization on behalf of an adult under guardianship is the right to refuse treatment.128 If an individual can provide informed consent, regardless of intelligence, the individual may refuse treatment, even for life-sustaining treatments.129 However, persons under guardianship do not have the same option because only their guardians can refuse medical treatment.130 Sterilization and abortion are both medical procedures that adults under guardianship might not wish to undergo, despite a court’s finding that the adult lacks capacity to make medical decisions.

Informed consent is critical, and a lack of ability to make medical de­cisions allows for abuse, neglect, poor quality of life, suffering, or even death.131 When an individual with a disability struggles to communicate or understand a doctor’s advice, it is imperative that another individual is available to facilitate communication with the doctor and assist in making decisions.132 However, granting that individual unqualified power to make medical decisions, particularly in regard to fundamental rights, violates the right to refuse treatment.133

In Cruzan, a woman’s parents wished to end life-sustaining treatment for their daughter who was in a persistent vegetative state.134 Although the Supreme Court recognized a right to refuse treatment, the Supreme Court held that her parents could not make such a decision absent a living will or meeting Missouri’s clear and convincing evidence standard.135 These standards, however, applied specifically to life-sustaining treatment given the state’s compelling concern: the preservation of life.136

Cruzan, unlike situations involving the reproductive rights of adults under guardianship, involved (1) withdrawing life-sustaining treatment from (2) a woman who was “competent” prior to an accident, meaning that her wishes could have more easily been discerned prior to “incompetence.”137 However, even though a guardian’s consent to an unwanted abortion or sterilization would not cause death, it still implicates a serious constitutional concern and deprives future lives.138 Additionally, even if the individual under guardianship did not previously have the capacity to draft an advance directive or power of attorney, many such individuals are not in a persistent vegetative state or coma such that they would not be able to express their wishes whatsoever.139

The Constitution allows for a state to mandate proving an individual would want to refuse life-sustaining treatment by a clear and convincing evidentiary standard, which is an even higher burden than currently is technically or universally required in regard to abortion or sterilization of adults under guardianship, who may be able to express their wishes and preferences when properly prompted.140 The state’s compelling interest in Cruzan was to accurately honor the patient’s wishes, even if the patient was in a coma.141 Similarly, the state has a compelling interest in accurately honoring the wishes of adults who are conscious and able to express their wishes.142 Allowing a guardian to consent to sterilization or abortion of an adult under guardianship without further judicial proceedings to consider the adult’s wishes deprives the adult of the right to refuse treatment.143 The evidence provided in guardianship proceedings alone appears to be insuf­ficient to meet the constitutional demands of Cruzan.

 

3. Violations of the Right to Obtain an Abortion or Undergo Sterilization

Guardians might also refuse to consent to an abortion, sterilization, or birth control method that an adult under guardianship would like to use or undergo due to moral or other objections.144 Refusal to consent to these procedures implicates the right to privacy and autonomy also guaranteed under due process.145 Roe guarantees the right to an abortion, should an individual so choose, prior to viability.146 Although the Supreme Court has never expressly held that there is a right to sterilization, lower courts have applied its holdings on the right to privacy and autonomy under due process to the right to undergo a voluntary sterilization.147

When persons under guardianship cannot make any decisions related to their reproductive health for themselves, they cannot assert their constitutional right to privacy because only their surrogate decision-makers, or guardians, may assert this right.148 Therefore, without providing an alterna­tive method of obtaining consent, adults under guardianship are deprived entirely of their constitutional right to choice if they do want an abortion or sterilization procedure and their guardian objects.

There are limits to the constitutional privacy right to undergo an abortion.149 Informed consent requirements, for example, are a constitutional exercise of the state’s compelling interest to protect life.150 The permissiveness of an informed consent might lead one to believe that adults with diminished decision-making capacity must not be permitted to make such a choice. However, this limitation, among others, does not logically imply that guardians specifically should be responsible for deciding whether adults under their guardianship should undergo an abortion, particularly given the nature of this constitutionally protected fundamental right and the potential for eugenic foul play or problematic paternalism by guardians.151

Even minors have more robust constitutional guarantees established through precedent than adults under guardianship.152 Even though a minor’s ability to obtain an abortion is more limited than that of an adult, it is unconstitutional for states to require minors to obtain parental consent without providing a procedure for judicial bypass.153 Even though it would appear to be constitutionally required, this judicial bypass for adults under guardianship is by no means guaranteed to exist in every state, given the lack of precedent or express establishment of such a standard by a body such as the Supreme Court.154 However, if minors must be allowed a judicial bypass, it follows that adults under guardianship should, at a minimum, also be provided this option to meet constitutional commands and requirements.155

Some states, such as Texas, not only do not allow guardians to consent to abortion or sterilization, but also do not provide a judicial path for requesting such procedures.156 In that case, an individual under guardianship could not undergo an abortion or sterilization procedure at all. This practice similarly takes away the adult’s choice if the adult does want to undergo an abortion or sterilization procedure, depriving the adult of due process.157 As previously established, when a guardian refuses to consent to an abortion without the existence of an alternative process, such as a court proceeding, the due process rights of a person under guardianship are violated.158 However, when a court itself categorically refuses to permit any sterilization or abortion application, it deprives the adult under guardianship of due process rights to an abortion or sterilization, period.159

 

4. Violations of Procedural Due Process Rights in Judicial Proceedings

The due process rights of adults under guardianship are not protected, due to discrimination, bias, and the lack of sufficient and consistent standards constraining judges to decide important questions affecting them. Many states require that a court determine whether to give or withhold consent to abortion or sterilization procedures.160 These requirements may be statutory or court-imposed.161 For example, the District of Columbia Code requires guardians to initiate further judicial proceedings to consent to abortion or sterilization if the initial guardianship order does not grant the guard­ian that ability.162 Some states, such as New Jersey and Washington, have established this requirement through case law.163 Although these judicial requirements dodge the constitutional problems and conflicts of interest that arise when guardians make such decisions, the requirement does not inherently address all due process concerns because (1) judges can still be ableist,164 basing their decisions on outdated and discriminatory biases, and (2) specific standards and factors must be employed to prevent the court itself from violating the due process rights of an adult under guardianship who can bear children.

Cleburne provides an example of judicial ableism and misunderstanding of disabilities.165 The Court refused to consider individuals with intellectual disabilities a suspect or quasi-suspect class, holding only that states may not pass legislation that distinguishes between individuals with intellectual disabilities and others unless the distinction is rationally related to a legitimate governmental purpose.166 Instead of using its power to protect the rights of individuals with disabilities, the Court relied upon its own misconceptions about individuals with disabilities in its ruling, treating disabilities in a manner in which it would not have treated race.167 Buck is another such example of judicial ableism and misunderstanding of disability because the Supreme Court upheld involuntary sterilization of “feebleminded” women based largely on inaccurate science and a misunderstanding of disability.168 Although establishing specific safeguards and factors in sterilization or abortion proceedings does not guarantee prejudices will not color judges’ decisions, requiring judges to consider these factors using specific standards curbs that possibility to the greatest extent possible.169

 

a. Required Evidentiary Standards, Factors, and Interest Frameworks to Provide Due Process

When a guardian petitions for abortion or sterilization of the adult, to comply with due process requirements, the court must apply a clear and convincing evidentiary standard, begin by attempting to apply an expressed interest framework, and apply specific factors. The first question is whether judges should apply a substituted judgment, best interest, or expressed interest paradigm. Expressed interest involves honoring the stated wishes of the adult, substituted judgment involves making a decision that conforms as closely as possible to the decision the adult would have made, and best interest involves weighing a number of factors to determine what is best for the adult’s well-being.170 In Bellotti, the Court held that minors are entitled to proceedings to demonstrate that (1) they are mature and well informed enough to make their own decisions regarding abortion or (2) the abortion is in the minor’s best interest.171 Presumably, a court has already determined that persons under guardianship cannot make their own decisions; that is why these individuals have guardians.172 That would leave only the determina­tion as to whether an abortion is in the adult’s best interest.173 However, as discussed, courts often erroneously and too restrictively decide guardians are necessary due to a misunderstanding of capacity and ingrained ableism and paternalism. Additionally, adults with disabilities are not minors, and should therefore not be treated as such.174 Therefore, an immediate presumption of the application of best interest is not constitutionally appropriate. The court should first attempt to apply expressed interest, then substituted judgment, and then best interest, applying the least restrictive alternative possible to prevent a due process violation.175

Although In re Hayes does not apply an expressed interest standard, it does state that the court must consider the view of the individual with diminished decision-making capacity to the greatest extent possible.176 The court only applied the best interest standard after the petitioner established the woman was unable to make her own decisions, and was not likely to develop such an ability.177 An expressed interest standard should always be applied when possible; however, for an individual under guardianship, an express inter­est should be extremely difficult, if not impossible, to obtain.178 Although certain express interests might suggest diminished capacity, individuals without disabilities are able to regularly make irrational decisions that do not lead to guardianship. If a judge can determine an express interest, the guardianship should be under some level of scrutiny.179

If expressed interest is difficult to obtain, the next course of action is to apply a substituted judgment standard, which is, typically, the standard guardians must follow in making decisions on behalf of the individual under guardianship.180

The final standard, which should only be applied after the court has made a good faith and thorough effort to discern the adult’s preferences, is the best interest standard.181 However, this standard completely removes any decision-making from the adult; another individual, here the court, decides what is in the adult’s best interest, making it inherently restrictive and paternalistic.182 However, if the adult truly cannot express any preference, it is necessary. Otherwise, adults under guardianship who could not express themselves and might actually require or wish to undergo an abortion or sterilization procedure would never be able to do so.

If the court must apply a best interest standard, the court needs to consider certain factors to protect the constitutional rights of adults under guard­ianship.183 A petitioner would need to demonstrate that the adult, or even minor, (1) is incapable of making one’s own decision about sterilization, (2) is unlikely to be able to make an informed judgment about sterilization in the foreseeable future, (3) is physically capable of procreation, (4) is likely to engage in sexual activity at the present or in the near future that could result in pregnancy, and (5) has a disability that renders the individual permanently incapable of caring for a child.184 Additionally, a petitioner must demonstrate that (1) all less drastic contraceptive methods, including supervision, education and training, are unworkable or inapplicable, (2) the method of sterilization is the least invasive possible, (3) scientific and medi­cal advances do not call for a reversible procedure or are not on the cusp of developing another less invasive contraceptive method, and (4) that science is not on the verge of finding a treatment for the individual’s disability.185 On top of these factors, the court must ensure that only the best interests of the individual, and not of society or the guardian, are considered.186

The final question is what burden of proof is constitutionally required when discussing these factors. The clear and convincing evidence standard is appropriate because of the fundamental nature of the right and to prevent any abuse of judicial authority.187 Many states cite Addington v. Texas, which required the courts to apply, at a minimum, a clear and convincing evidence standard in determining whether to involuntarily commit an individual to a state hospital for an indefinite period, in such cases.188

A preponderance of the evidence standard is not strict enough in cases involving abortion or sterilization of adults under guardianship because (1) applying this standard would undermine the state’s parens patriae interest in protecting these adults and (2) the possible harm that could arise from applying such a standard is far greater than any possible harm to the state.189

In Addington, the Supreme Court declined to apply the “beyond a rea­sonable doubt” standard, which it reserved for criminal cases due to the standard’s stringency and nature of the rights involved.190 Therefore, the clear and convincing evidence standard would be the highest possible civil proceeding standard that could be applied.191 Although a higher standard would be preferred, and some states might choose to apply such a standard, it is not constitutionally mandated.192

 

b. The Court Must Meet Certain Procedural Requirements in Considering Petitions for Sterilization or Abortion

Specific procedural requirements must also be met to prevent erroneous deprivation of substantive due process rights in involuntary sterilization and abortion proceedings for adults under guardianship.193 Although the Supreme Court has not addressed these specific requirements, based upon case law and the substantive rights at stake, procedurally, (1) the individual with diminished decision-making ability must be represented by a disin­terested guardian ad litem, (2) the court must receive independent advice based upon a medical, psychological, and social evaluation of the individual, and 3) to the greatest extent possible, the court must elicit and consider the individual’s wishes.194 Requiring counsel to represent the adult’s expressed interests or, if impossible to determine, the arguments against sterilization or abortion, is also necessary to comply with due process to protect the adult’s liberty interests, considering the fundamental right at stake and the higher risk of erroneous deprivation or coercion.195

The Supreme Court has yet to categorically require legal representation for civil cases; rather, the Supreme Court left space for these determinations to be made on a case by case basis by weighing the Matthews factors.196 However, in Lassiter, the Supreme Court noted that the Constitution would definitively not require the appointment of counsel in every parental termi­nation proceeding.197 The same arguments could not be made about indi­viduals under guardianship, whom a court has already determined to lack capacity in some manner, and for whom the court has appointed someone to make decisions in their stead. The risk of erroneous deprivation in these cases is therefore, inherently, far greater. This risk, as well as the nature of the autonomy rights at stake, are evidenced by statutory requirements for representation that already exist in many jurisdictions for guardianship or intervention proceedings.198 Logically, these risks extend to proceedings involving abortion or sterilization of an adult under guardianship.

 

c. Reassessment of the Appropriateness of Guardianship

If an adult under guardianship, as opposed to an individual on the adult’s behalf, petitions for abortion or sterilization, it indicates that the adult is likely able to communicate and evaluate decisions, and the adult’s express preferences are likely known.199 That behavior may contradict the requirements of establishing guardianship.200 Therefore, if an adult does petition to undergo abortion or sterilization, the court should (1) revisit whether guardianship is still appropriate and (2) give more weight to the adult’s request.201 If a judge finds that guardianship is no longer appropriate, at least in the particular area implicated when requesting an abortion or sterilization, it must be terminated either completely or in the areas in which the adult has capacity.202 This process would appropriately balance the constitutional rights of persons under guardianship with the compelling state interest to protect individuals with disabilities.203

Even if a court finds by clear and convincing evidence that the adult is still unable to evaluate or communicate decisions to provide informed con­sent, the court must address the adult’s request, but in the same manner in which it should address sterilization or abortion proceedings initiated by a guardian.204 First, it must attempt to apply express interest, then substituted judgment, and finally best interest, all by clear and convincing evidence.205 If the adult is still found to have diminished capacity, the court must also prevent coercion of individuals with disabilities by third parties to petition for their own abortion or sterilization, in the same manner that it would prevent such coercion should a guardian file the petition.206 Potential factors include (1) why the adult is filing the petition, (2) who assisted the adult in filing the petition, and (3) who is representing the adult.

 

IV. Policy Recommendation

 

A. Statutory Requirements, Judicial Standards, and Factors

One method of addressing these constitutional concerns without the need for litigation is for states to pass statutes establishing a process, requirements, judicial standards, and specific factors that must be considered when an individual under guardianship’s guardian, or the individual under guardianship, petitions for abortion or sterilization. All states pass statutes that require guardians to seek further court approval for any abortion or sterilization procedure. Statutes such as those in D.C., which still allow judges to delegate the choice of whether to undergo abortion or sterilization in the appointment order, are insufficient because capacity is fluId.207 In addition, such a policy should require that a court apply (1) a clear and convincing burden of proof, (2) the preferred expressed interest standard, and (3) specific factors if the court must use a substituted judgment or best interest standard.208 This policy would require compliance by doctors and other professionals, and therefore would require sanctions on doctors who ignore legal standards and protocol.209 In Ashley X’s case, for example, Washington state’s laws were not sufficient.210

One potential pitfall of this policy would be that adults under guardianship who want an abortion or sterilization would still have to petition the court, potentially placing an undue burden on these adults.211 Without a clear understanding of rights or process, adults under guardianship who might want to undergo abortion or sterilization are effectively deprived of the right to do so.212 Additionally, guardians themselves might pose barri­ers to this right.213 More education, notice, and intervention by the state is required for the adult’s right to be appropriately accessed; otherwise, the right to be heard is only existent in theory, curtailed by the state’s appoint­ment of a guardian.214

This policy also would not guarantee that judges would not still dis­criminate against parties with disabilities. One potential suggestion is to require education and training for judges on issues surrounding disabilities, although the likelihood of success or feasibility of such education and train­ing is unclear. At the very least, however, stringent standards would make it more difficult to make judgments that stem from discriminatory beliefs or practices.215

 

B. Supported Decision-Making and Less Restrictive Alternatives to Guardianship

Another option is to attack the issue at its root: the often overly-restrictive institution of guardianship itself. Many states require that judges apply the least restrictive alternative possible and permit limited guardianship.216 However, these options are underutilized.217 To combat some of these barriers, states should also adopt supported decision-making framework.218 Supported decision-making is a less restrictive alternative to guardianship that involves the formalization of a network of trusted individuals who would assist the individual in making decisions; however, the decision would ultimately be left to the individual.219 If adults with disabilities were to make their own decisions, as opposed to a guardian, the same constitutional implications would not be present; the adults would retain their right to choice and bodily autonomy.220 Using this framework, supporters can, instead, focus on building the capacity of the individual by discussing safe and healthy intimate relationships, birth control, and other options.221 Although supported decision-making is an alternative that should be en­couraged, it might not always be appropriate; guardianship might still be appropriate for some, meaning states must still act to protect the rights of those persons under guardianship.222

 

IV. Conclusion

Adults under guardianship are just that—adults. They are individuals with their own preferences, needs, and autonomy, a right that is ingrained in American jurisprudence.223 Additionally, the history of eugenic practices makes reproductive rights of particular interest when an adult with a disability who may bear children is involved.224 States must therefore balance the compelling interest to protect adults with disabilities from exploitation via guardianship with the adult’s interest in the fundamental rights to procreate, to undergo voluntary abortion or sterilization, and to refuse treatment.225

As such, guardians, without any further court proceeding, cannot consent to abortion or sterilization of an adult with a disability; it must be up to a court of law.226 Further, courts making such determinations must also ap­ply a clear and convincing evidence standard to specific factors to prevent abuse of judicial discretion that violate the constitutional due process rights of adults under guardianship.227 There must also be a path for indvididuals under guardianship to obtain an abortion or sterilization; otherwise, that right is effectively denied.228 All laws that fail to protect the right of an adult under guardianship to undergo a voluntary sterilization or abortion, or to fight involuntary sterilization or abortion, at all, as well as those that are not meet the requirements of due process, are simply unconstitutional, overly restrictive, and violate the person’s right to privacy.229 Adopting less restrictive alternatives, such as supported decision-making, when appropri­ate would assist in correcting this issue.230 However, states must also take care of adults under guardianship by enforcing and enacting strict standards and requirements for guardians to petition for sterilization and abortion, as well as by providing a clear and accessible path for adults under guardian­ship who seek abortion or sterilization.231

 

 

NOTES

 

1. See Ellen Brantlinger, Sterilization of People with Mental Disabilities: Issues, Perspectives, and Cases 1-5 (1995) (explaining the belief that the “parasitic population” burdened society).

 

2. See Buck v. Bell, 274 U.S. 200, 207 (1927) (holding that a Virginia statute authoriz­ing compulsory sterilization of individuals with intellectual disabilities for eugenic purposes was not unconstitutional).

 

3. See Id. (reasoning that the sterilization statute did not violate due process because the substance of the law was “justified” to protect the public welfare).

 

4. See In re Hayes, 608 P.2d 635, 640 (Wash. 1980) (applying stricter guidelines, consid­erations, and requirements to demonstrate that sterilization is in the best interest of a minor or adult under guardianship).

 

5. See Brantlinger, supra note 1, at 8 (explaining that although eugenic rationales and assumptions persist in modern thought, individuals might change their rhetoric for fear of being deemed politically incorrect).

 

6. See Feminist Disability Studies 1-2 (Kim Q. Hall ed., 2011) (posing Ashley X as one example of the need for and relevance of feminist disability analysis to better understand gendered oppression).

 

7. See Id. at 1-2 (explaining the rationale for the procedures conducted on a six-year-old to ensure that she maintained the body of a child for the remainder of her life).

 

8. See Id. at 2-4 (discussing analyses of disabilities through of a feminist lens, adding that Ashley’s treatment to ensure that she remains a young girl reflects cultural gendered expectations).

 

9. See David R. Carlson& Deborah A. Dorfman, Investigative Report Regarding the “Ashley Treatment” 12-14 (2007), available at https://www.disabilityrightswa. org/wp-content/uploads/2017/12/InvestigativeReportRegardingtheAshleyTreatment_ May2007.pdf (finding that a court order was required for the procedure).

 

10. See Roe v. Wade, 410 U.S. 113, 163-64 (1973) (establishing a constitutional privacy right to abortion); Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (holding unmarried individuals have a right to contraception); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (holding a contraceptive ban violated the right to marital privacy); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding unconstitutional a statute requiring sterilization of individuals convicted of crimes involving “moral turpitude”).

 

11. See Bellotti v. Baird, 443 U.S. 622, 622-23 (1979) (requiring an alternative to parental consent for a minor’s abortion); Planned Parenthood v. Danforth, 428 U.S. 52, 53, 74 (1976) (holding unconstitutional a parental consent requirement).

 

12. See Barbara A. Weiner & Robert M. Wettstein, Legal Issues in Mental Health Care 274-75 (1993) (explaining who is generally found to have diminished decision-making ability in a court).

 

13. See Id. at 292 (describing informed consent and the need for guardians to consent to, re­fuse, or withdraw from medical treatment on behalf of individuals under guardianship).

 

14. Due to the changing perceptions of capacity, the legal terminology for adults who are legally unable to consent differs between jurisdictions. See Margaret C. Jasper, Guardianship, Conservatorship, And The Law 3 (2008) (including terms such as “incompetent,” “incapacitated,” or “ward”); Mary Joy Quinn, Guardianship of Adults: Achieving Justice, Autonomy, and Safety 35-36 (2005) (discussing the antiquated use of discriminatory and arbitrary labels). However, this article will refrain from referring to adults under guardianship as “incapacitated” or “incompetent.” See Uniform Health Care Decisions Act of2017, Prefatory Note (adopting more precise language, such as “adult subject to guardianship”).

 

15. This article uses more inclusive terms, such as adults, people, or individuals who may bear children, as opposed to women, to ensure the identities of transgender men, intersex persons, non-binary persons, and other persons who may otherwise have a uterus or reproduce, are not erased from the conversation.

 

16. See infra Parts IV and V (arguing that courts must also maintain specific minimum standards in court proceedings to comport with due process).

 

17. See infra Part II (providing a background on the laws and rights discussed in this article).

 

18. See infra Part III (arguing that guardians making such decisions violates an adult under guardianship’s rights to choose, to refuse treatment, and to procreate).

 

19. See infra Part IV (discussing supported decision-making models, evidence standards, and factors states must adopt).

 

20. See infra Part V (concluding that states must change their policies to prevent constitu­tional violations).

 

21. See Jasper, supra note 15, at 2-3 (explaining the difference between a guardian and a conservator, who generally manages and disburses property for an individual with diminished decision-making ability; however, the terminology differs between jurisdictions).

 

22. See In re Braaten, 502 N.W.2d 512, 518 (N.D. 1993) (citing a legitimate and substantial government interest in appointing guardians to protect individuals with disabilities).

 

23. See In re Colyer, 660 P.2d 738, 742 (Wash. 1983) (discussing the state’s parens patriae responsibility to supervise individuals with disabilities and its role in the establishment of guardianships).

 

24. See Weiner & Wettstein, supra note 13, at 282 (explaining adults can be found to have diminished ability to consent to medical or psychiatric care, or to parent a child, among other areas).

 

25. See Wingspan—The Second National Guardianship Conference, Recommendations, 31 Stetson L. Rev. 595, 595 (2002) (recommending standard procedures to resolve interstate controversies).

 

26. See Weiner & Wettstein, supra note 13, at 284, 287 (describing the possible areas over which a guardian can assist).

 

27. See Lawrence A. Frolik, Promoting Judicial Acceptance and Use of Limited Guardianship, 31 Stetson L. Rev. 735, 741 (2002) (stating a plenary guardian can always make medical decisions, whereas a limited guardian can only do so if a court finds that an adult has diminished health-care capacity).

 

28. See Weiner & Wettstein, supra note 13, at 287 (adding that in some jurisdictions, statutes specify decisions for which guardians must always seek court approval to consent or for which a guardian can never consent).

 

29. See Id. at 116-17 (discussing the requirements to provide informed consent and why guardians are sanctioned to provide consent for those under guardianship).

 

30. See Jasper, supra note 15, at 3 (explaining that a properly conducted guardianship al­lows the adult to participate in health care management and provides a certain amount of autonomy).

 

31. See Quinn, supra note 15, at 17 (describing guardianship’s purpose to provide basic needs and protections for individuals with disabilities).

 

32. See Weiner & Wettstein, supra note 13, at 292 (explaining that guardians are ap­pointed to consent to medical treatment because individuals with diminished decision-making ability cannot provide informed consent).

 

33. U.S. Const. amend. XIV § 1.

 

34. See, e.g., D.C. Code §§ 21-2031, 21-2033, 21-2041(h), 21-2042 (2018).

 

35. These transgressions are ones that clients who wish to terminate guardianship have experienced in practice.

 

36. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (holding that due process does not require an evidentiary hearing prior to termination of Social Security disability benefits).

 

37. See Coercive Care: Rights, Law and Policy 7 2 ( Ian Freckelton & Bernadette McSherry eds., 2013) (adding if no values are known and the adult cannot communicate, the guardian should act in the adult’s best interest).

 

38. See James Bopp, Jr. & Richard E. Coleson, A Critique of Family members as Proxy Decisionmakers without Legal Limits, 12.2 Issues inL. & Med. 159, 159 (1996) (arguing that family members caring for adult relatives do not inherently make better decisions).

 

39. See North Carolina Ass’n for Retarded Children v. North Carolina, 420 F. Supp. 451 455-56 (M.D.N.C. 1976) (holding unconstitutional a statute compelling government institutions to initiate sterilization proceedings at the request of a guardian); Bopp, Jr. & Coleson, supra note 39, at 159.

 

40. See Jessalyn Gustin & Jonathan Martinis, Supported Decision-Making as an Alternative to Overbroad and Undue Guardianship, 60 Advocate 41, 42-43 (2017) (arguing that those subjected to overbroad or undue guardianship lose self-determination).

 

41. See Robert D. Dinerstein, Guardianship and its Alternatives, in Adults with Down Syndrome 239 (Siegfried M. Pueschel ed., 2006) (arguing that capacity is fluid over time).

 

42. See Quinn, supra note 15, at 3-4 (explaining that families, judges, attorneys, and social service providers are confused about generalized statutes, the functions of a guardian, and the inconsistent terminology used in each jurisdiction).

 

43. See Frazier v. Levi, 440 S.W.2d 393, 393 (Tex. Civ. App. 1969) (holding that the court also lacked statutory authority to order a sterilization on a guardian’s application); Marsha L. Reingen et al., Texas Abortion Law: Consent Requirements and Special Statutes, 18 HoustonL. Rev. 835, 837-38 (1981) (explaining the consequences of the Frazier holding).

 

44. See D.C. Code § 21-2047.01 (2015) (stating that express authority in the appointment order is required to consent to abortion or sterilization without further proceedings).

 

45. See In re Hayes, 608 P.2d 635, 637 (Wash. 1980) (holding a mother of a minor with diminished decision-making ability failed to demonstrate by clear and convincing evidence that sterilization was in the minor’s best interest).

 

46. See Id. at 641 (holding that to sterilize an individual with diminished decision-making capacity, there must be clear and convincing evidence presented that there is a need for contraception and that the individual with diminished decision-making capacity cannot make his or her own decisions about sterilization).

 

47. See Id. (holding that there is a heavy presumption against sterilization of an individual with diminished decision-making capacity that a person seeking the sterilization has the burden of overcoming due to the invasive and permanent nature of sterilization; the presumption against sterilization for a minor with diminished decision-making capacity is even heavier than that of an adult).

 

48. See Id. (developing procedural standards for the state of Washington in cases deter­mining whether an individual with diminished decision-making capacity should be sterilized, weighing the nature of the procedure with the minor’s interest).

 

49. See In re Grady, 426 A.2d 467, 475, 481 (N.J. 1981) (requiring clear and convincing evidence of the woman’s best interest).

 

50. See Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding a clear and convincing evidence standard was constitutionally required to involuntarily commit an individual for psychiatric care).

 

51. See, e.g., In re K.E.J., 887 N.E.2d 704, 720 (Ill. App. Ct. 2008) (establishing substituted judgment and best interest standards for sterilization of a woman with diminished capacity); In re Foster, 535 N.W.2d 677, 683 (Minn. Ct. App. 1995) (holding court ap­proval is required for a conservator to consent to sterilization); In re Terwilliger, 450 A.2d 1376, 1382 (Pa. Super. Ct. 1982) (establishing standards for determining whether an individual with diminished capacity should undergo sterilization).

 

52. U.S. Const. amend. XIV § 1 (extending a due process requirement to state, as opposed to simply federal, governments).

 

53. See Bd. of Regents v. Roth, 408 U.S. 564, 570 n.7, 584 (1972) (noting that before an individual is deprived of a liberty interest, he must be afforded the opportunity to be heard, consistent with due process).

 

54. See Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (holding the Fourteenth Amendment only prohibits actions that can be fairly said to have been taken by the state); Mitchell v. Fleming, 741 P.2d 674, 682 n.9 (Ariz. 1987) (finding a public fiduciary was a state actor).

 

55. See United States v. Morrison, 529 U.S. 1740, 1758 (2000) (holding private, violent acts against women could not be punished under the Due Process Clause).

 

56. See Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982) (holding a state official can be fairly said to be a state actor); Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (holding a private utility company was not a state actor); In re Colyer, 660 P.2d 738, 742 (Wash. 1983) (finding there was a sufficient nexus between the state and the action, such that the action may be fairly said to be state action).

 

57. See U.S. Const. amend. IX (stating the enumeration of certain rights must not be con­strued to deny others); Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (explaining the Ninth Amendment creates a penumbra of rights, including privacy).

 

58. See Planned Parenthood v. Casey, 505 U.S. 833, 835, 838 (1992) (affirming states may only regulate abortion in ways rationally related to a legitimate interest); Cruzan v. Missouri, 497 U.S. 261, 277, 282-83 (1990) (recognizing the right to refuse treatment); Roe v. Wade, 410 U.S. 113, 153 (1973) (holding the right to privacy extends to abortion); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding procreation is fundamental to the existence of humanity).

 

59. See Ruby v. Massey, 452 F. Supp. 361, 366 (D. Conn. 1978) (finding a constitutional right to voluntary sterilization).

 

60. See Doe v. District of Columbia, 920 F. Supp. 2d 112, 125 (D.D.C. 2013) (holding per­forming an abortion on an individual found unable to consent violated due process); In re Grady, 426 A.2d 467, 473, 480, 482 (N.J. 1981) (citing due process and privacy penumbras); In re Hayes, 608 P.2d 635, 639-40 (Wash. 1980) (finding the court must exercise care to protect an individual’s right to privacy).

 

61. See Casey, 505 U.S. at 833, 871 (holding Pennsylvania informed consent and 24-hour waiting period requirements for abortion did not violate the Constitution); Cruzan, 497 U.S. at 268 (holding no one could refuse life-sustaining treatment for a woman in a coma in the absence of a living will or without meeting the state’s clear and convincing evidence standard); Bellotti v. Baird, 443 U.S. 622, 643-44 (1979) (holding a state may require parental consent if there is an alternative option to the parent’s absolute veto).

 

62. See Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (stating that, although the court was a state actor and due process applied in a case involving the enforcement of a discriminatory restrictive covenant, the Fourteenth Amendment does not prohibit private conduct, regardless of how wrongful or discriminatory).

 

63. See Id. at 14 (holding the actions of state courts and judicial officers in their official capacities is considered state action within the meaning of the Fourteenth Amendment).

 

64. See Id. at 18-19 (holding a state court’s enforcement of a racially discriminatory re­strictive covenant was sufficient to violate due process); Quinn, supra note 15, at 71 (explaining the pivotal role of the courts in the process, that guardians are only answer­able to the court, and that only a court can appoint, supervise, or remove a guardian).

 

65. Cf. United States v. Morrison, 529 U.S. 1740, 1758 (2000) (holding the Violence Against Women Act could not be upheld by applying Congress’ power to enforce the Fourteenth Amendment in § 5).

 

66. Cf. Shelley, 334 U.S. at 17-19 (finding that although placing a restrictive covenant was a private act, court enforcement of the covenant constituted a state action).

 

67. See In re Foster, 535 N.W.2d 677, 683 (Minn. Ct. App. 1995) (finding the court must balance the private interest, the risk of erroneous deprivation of rights, and the state’s interests in procedural due process challenges in conservatorship cases).

 

68. See Id. at 680-81 (holding the statutory procedural safeguards for conservatorship were sufficient to permit the conservator to consent to provide the adult with diminished decision-making ability with neuroleptic drugs without further proceedings).

 

69. See D.C. Code § 21-2045.01 (2017) (establishing mandatory court review of guardians every three years); cf. Mitchell v. Fleming, 741 P.2d 674, 682 n.9 (Ariz. 1987) (citing the court’s supervisory role in guardianship as a factor to determine a public fiduciary was a state actor).

 

70. Cf. Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (holding a utility company was not a state actor for the purpose of violating due process).

 

71. See Mitchell, 741 P.2d at 682 n.9 (finding a public fiduciary was a state actor due to the state’s ability to license and regulate hospital and health care institutions, as well as the court’s supervisory role in appointing guardians).

 

72. Cf. Lugar v. Edmonson Oil, Co., 457 U.S. 922, 937 (1982) (providing a state official as an example of an individual that can be fairly said to be a state actor).

 

73. Doe v. District of Columbia, 920 F. Supp. 2d 112, 119 (D.D.C. 2013) (holding the institution failed to follow state procedures to obtain consent to protect substantive liberty interests).

 

74. See D.C. Code § 21-2060(a) (establishing that guardians are entitled to reimbursement for room, board, and clothing provided to an adult under guardianship).

 

75. See Lugar, 457 U.S. at 937 (holding that an official can be fairly said to be a state actor if he has acted together with or has obtained significant aid from state officials).

 

76. See In re Grady, 426 A.2d 467, 472 (N.J. 1981) (citing due process requirements in affirming the court’s job to balance the weight of the fundamental right to reproduce when considering sterilization).

 

77. See Quinn, supra note 15, at 71 (describing the judicial process for obtaining guardian­ship and determining its scope).

 

78. See In re Colyer, 660 P.2d 738, 742 (Wash. 1983) (finding there was a sufficient nexus between the state and prohibitions against withholding life sustaining treatment in a case surrounding the constitutional right to refuse treatment).

 

79. Cf. Shelley v. Kraemer, 334 U.S. 1, 17-19 (1948) (holding that a court acted as a state actor in enforcing an unconstitutional restrictive covenant, which prohibited individuals of color from living in a particular area).

 

80. See, e.g., D.C. Code § 21-2047.01 (2017) (requiring a guardian to petition the court for approval for abortion or sterilization if it is not a power set out in the initial guardian­ship order); In re Hayes, 608 P.2d 635, 641 (Wash. 1980) (holding the decision regard­ing whether to sterilize a woman with diminished capacity must be made in a court proceeding).

 

81. Cf. Shelley, 334 U.S. at 16 (claiming state action in violation of due process is equally repugnant whether directed by state statute or absent of a statute).

 

82. See In re Hayes, 608 P.2d at 639-40 (setting specific standards to determine whether to sterilize a woman with diminished capacity); In re Grady, 426 A.2d at 473, 483 (establishing a clear and convincing standard to demonstrate that the individual to be sterilized lacks capacity).

 

83. See In re Foster, 535 N.W.2d 677, 683 (Minn. Ct. App. 1995) (holding that there is a right to privacy inherent in allowing a conservator to consent to neuroleptic drugs on behalf of an individual with an alleged diminished decision-making ability).

 

84. See Erica Wood et al., Restoration of Rights in Adult Guardianship: Research and Recommendations 6 (2017) (stating that some adults are also under guardianship beyond the time period necessary, leading to unnecessary restriction).

 

85. See Gustin & Martinis, supra note 41, at 42-43 (discussing the automatic presumption that any individual with a disability who turns eighteen requires a guardian, even if is unnecessary).

 

86. Cf. Dinerstein, supra note 42, at 235 (stating that even when statutes explicitly state that individuals with intellectual disabilities should be presumed to have capacity, they are, nonetheless, presumed to lack capacity).

 

87. See D.C. Code § 21-2041(h) (2018) (codifying that an alleged incapacitated adult shall be present at hearings to determine the individual’s capacity, in turn invoking guard­ianship, unless a judge determines that good cause for the absence is demonstrated).

 

88. Skinner v. Oklahoma, 316 U.S. 535, 538 (1942) (explaining that a just and reasonable hearing is required to meet the demands of due process).

 

89. See In re Grady, 426 A.2d 467, 486 (N.J. 1981) (citing separate, and rigid, substantive and procedural criteria that must be satisfied in preventing potential abuse in steriliza­tion of people with disabilities).

 

90. Cf. Cruzan v. Missouri, 497 U.S. 261, 303 (1990) (applying strict scrutiny to the con­stitutional right to refuse treatment); Roe v. Wade, 410 U.S. 113, 155 (1973) (holding regulations limiting fundamental rights can only be upheld when there is a compelling state interest).

 

91. See, e.g., D.C. Code § 21-2047.01 (2016) (excluding guardians from seeking abortion or sterilization without a further court proceeding or explicit mention of the guardian’s right to do so in the initial guardianship order).

 

92. See, e.g., Id. (setting limits to the scope of guardianship).

 

93. See Dinerstein, supra note 42, at 239 (arguing that capacity can vary over time, par­ticularly with interventions and training).

 

94. See, e.g., D.C. Code § 21-2047(6)-(8) (2015) (codifying that a guardian must include the adult in the decision-making process and allow the adult to act on her own behalf whenever possible).

 

95. Cf. Wood, supra note 86, at 9 (outlining the conditions under which restoration suc­ceeded, while leaving questions about situations under which no petition is filed or the guardian opposes the petition for removal); Dinerstein, supra note 42, at 239 (arguing that the right kinds of habilitative programs and interventions could lead to the devel­opment of capacity in other areas).

 

96. See D.C. Code § 21-2045.01 (mandating three-year reviews that need only include updated medical statements, a statement of the expressed preferences of the individual under guardianship, and statements by any other interested party).

 

97. Cf. Wood, supra note 86, at 10-15 (describing lack of access to courts, lack of under­standing of procedures, lack of counsel, and guardian opposition, among other factors, as barriers to guardianship removal).

 

98. See Nat’l GuardianshipAss’n, Standards ofPractice 15 (4th ed. 2013), available at http://www.guardianship.org/documents/Standards_of_ Practice.pdf (requiring court authorization or a living will to allow guardian consent to abortion or sterilization).

 

99. See In re Grady, 426 A.2d 467, 472-73 (N.J. 1981) (stating the court must remain mindful of the atrocities committed against humans with disabilities within the same century).

 

100. See, e.g., D.C. Code § 21-2011(11A) (2017) (requiring unequivocal communication and understanding of procedures and requirements to provide informed consent).

 

101. Cf. Gustin & Martinis, supra note 41, at 41-42 (explaining that guardianship is often overbroad, restricting more rights than necessary).

 

102. See In re Hayes, 608 P.2d 635, 641 (Wash. 1980) (holding that, to the greatest extent possible, the court must consider the preferences of a person with disabilities in its decision to allow for sterilization).

 

103. See Cruzan v. Missouri, 497 U.S. 261, 315 (1990) (holding the state had a compelling interest in the accuracy of the determination of the wishes of a woman in a coma).

 

104. See Id. at 267-70 (holding it followed logically, given notions of informed consent, that a patient could generally refuse treatment).

 

105. See Id. at 277, 282-83 (recognizing a constitutional right to refuse treatment); Roe, v. Wade, 410 U.S. 113, 153 (1973) (holding that there is a constitutional right to have an abortion); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (recognizing a constitutional right to procreate).

 

106. See Skinner, 316 U.S. at 541 (establishing the right to procreate as a fundamental privacy right); In re Grady, 426 A.2d 467, 472 (N.J. 1981) (noting that any legal discussion of sterilization of women with disabilities must begin by acknowledging that procreation is a fundamental right).

 

107. See North Carolina Ass’n for Retarded Children v. North Carolina, 420 F. Supp. 451 (M.D.N.C. 1976) (holding that a statute compelling government institutions to initiate sterilization proceedings at the request of a guardian was unconstitutional); Bopp, Jr. & Coleson, supra note 39, at 159.

 

108. See Robyn M. Powell, Safeguarding the Rights of Parents with Intellectual Disabilities in Child Welfare Cases: The Convergence of Social Science and Law, 20 CUNYL. Rev. 127, 127-30 (2016) (arguing that policy decisions about the fitness of parents with disabilities must be informed by social science).

 

109. Cf. Cruzan v. Missouri, 497 U.S. 261, 315 (1990) (acknowledging Missouri’s parens patriae interest in providing a woman in a coma with the most accurate determination of how she would exercise her right to refuse life-sustaining treatment); In re Braaten, 502 N.W.2d 512, 518 (N.D. 1993) (citing a legitimate and substantial government interest of protecting individuals with disabilities that must be balanced with the individual’s liberty interests).

 

110. Cf. In re Braaten, 502 N.W.2d at 518 (holding guardianship should be narrowly tailored and as minimally restrictive as necessary to protect the fundamental liberty interests of individuals with disabilities).

 

111. See North Carolina Ass’n for Retarded Children v. North Carolina, 420 F. Supp. 451, 455-56 (M.D.N.C. 1976) (stating a statute permitting a guardian or next of kin to request that the state file an action to institute sterilization proceedings was “irrational and irreconcilable” with the remainder of the statute); Bopp, Jr. & Coleson, supra note 39, at 159.

 

112. See Dinerstein, supra note 42, at 239 (asserting that capacity is a fluid concept that may vary over time and between topic areas).

 

113. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (stating the power to sterilize may cause individuals of certain races or different types of persons that a dominant group fears to disappear).

 

114. See, e.g. D.C. Code § 21-2011(11A) (2017) (defining capacity for the purpose of guard­ianship proceedings); Uniform Health Care Decisions Act of1993, 1994, § 1(3) (defining of capacity in a universal act, which states can adopt).

 

115. See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding a law that allowed for the invol­untary sterilization of women in institutions). There is also evidence that Carrie Buck was not actually disabled, but rather, she was labeled as such for giving birth while unmarried, as well as her poverty, perpetuating harmful sexism, classism, and ableism in one fell swoop. Paul A. Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. Rev. 30, 53, 61 (1985),

 

116. See Id. at 207; In re Hayes, 608 P.2d 635, 637 (Wash. 1980) (explaining the finding of inheritability of disability to uphold a compulsory sterilization statute is no longer accepted science).

 

117. See In re Hayes, 608 P.2d at 637 (citing both the evolution of understanding of and perception of disability to require higher standards of proof and additional factors to demonstrate a minor with disabilities should be sterilized).

 

118. See Skinner v. Oklahoma, 316 U.S. 535, 543-45 (1942) (Stone, J., concurring) (writing that appropriate steps to safeguard liberty are paramount prior to undergoing an ir­reparable harm such as sterilization).

 

119. See Id. at 545 (Stone, J., concurring) (explaining that, at a minimum, due process would require a hearing and opportunity to demonstrate that the criminal does not possess inheritable tendencies).

 

120. See Id. at 541-42 (finding Oklahoma could not have explained the distinction between enforcement for individuals convicted of larceny versus embezzlement beside targeting a specific race); Roe v. Wade, 410 U.S. 113, 155 (1973) (holding regulations limiting fundamental rights can only be upheld when there is a compelling state interest).

 

121. See In re Grady, 426 A.2d 467, 472-73 (N.J. 1981) (holding the right to procreate is also important among “incompetent” individuals); In re Hayes, 608 P.2d 635, 639-40 (Wash. 1980) (finding the court must exercise care to protect the individual’s right to privacy).

 

122. See In re Grady, 426 A.2d at 472-73 (noting current doubts about the scientific validity of eugenic sterilization half a century after Buck v. Bell).

 

123. See In re Hayes, 608 P.2d at 639-40 (finding that sterilization touches upon the indi­vidual’s right of privacy and the fundamental right to procreate).

 

124. See In re Grady, 426 A.2d at 472 (claiming a court must protect the rights of an adult with disabilities to reproduce).

 

125. See Id. (holding that, although parents do have standing to bring a claim to assert a person’s right to sterilization, the court must make the final determination by balanc­ing the factors involved in such a decision, including past abuse of the sterilization of people with disabilities).

 

126. See Id. at 474-75 (stating that implicit in these complementary liberties is the right to make a meaningful choice between them).

 

127. See Id. (stating the right to procreate, which is a valuable incident of the right to privacy, should not be discarded based solely on a person’s condition to exercise a choice).

 

128. See Id. at 473 (discussing the history of the right to privacy under due process, and the expansion of such rights to control one’s own body).

 

129. See Cruzan v. Missouri, 497 U.S. 261, 277, 282-83 (1990) (holding that there is a constitutional right to refuse treatment under the due process clause of the Fourteenth Amendment).

 

130. See Quinn, supra note 15, at 71 (explaining that guardians are responsible for mak­ing any decisions for which an individual is deemed to have an alleged diminished decision-making ability).

 

131. See Id. at 17 (discussing the possible lack of appropriate health care and abuse that can result without employing guardianship as a protective measure).

 

132. See Id. at 72 (listing the duties of guardians of the person, including creating care plans and making medical decisions).

 

133. Cf. Cruzan, 497 U.S. at 277, 282-83 (stating a woman in a coma had the right to refuse treatment, but the state also had a compelling interest in the accuracy of the determina­tion of her wishes and her self-determination).

 

134. See Id. at 261 (explaining the woman sustained severe injuries after an automobile accident, and that while she exhibited motor reflexes, she displayed no significant cognitive function).

 

135. See Id. at 268, 280 (declining to hold unconstitutional a Missouri state procedural requirement favoring the preservation of life).

 

136. See Id. at 268-69 (describing Missouri’s Living Will Statute as a proper legislative response to the policy questions bearing on life and death).

 

137. See Id. at 280 (describing the Missouri statute as a procedural safeguard to ensure the surrogate’s action to withdraw treatment conforms with the wishes the patient expressed while “competent”).

 

138. See Roe v. Wade, 410 U.S. 113, 152-154 (1973) (establishing that the constitutional right to privacy applies to the decision to obtain an abortion, while asserting that the right is not absolute due to a compelling state interest to protect potential life, among others).

 

139. See Cruzan v. Missouri, 497 U.S. 261, 280 (1990) (explaining that an “incompetent” person is unable to make an informed and voluntary choice regarding the right to refuse treatment, and a surrogate must act on that person’s behalf).

 

140. See Id. at 280 (holding that the U.S. Constitution did not forbid Missouri from requir­ing clear and convincing evidence that an incompetent individual would have wished to be withdrawn from life-sustaining treatment).

 

141. See Id. at 277, 282-83 (holding a state may decline to judge the quality of life in its assessment of whether a life must be preserved).

 

142. Cf. Id. (claiming the state has a compelling interest in ensuring the accuracy of an individual’s wishes in determining whether she would want to refuse life-sustaining treatment).

 

143. See Id. (holding Missouri’s clear and convincing evidence standard was constitutional to determine the preferences of a woman in a coma in regard to life-sustaining treat­ment due to the high risk of error).

 

144. Cf. Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) (recognizing a statute would give parents arbitrary and absolute veto power to decline consent to a minor’s abortion, regardless of the reason).

 

145. See Roe v. Wade, 410 U.S. 113, 163-64 (1973) (establishing the privacy right to undergo abortion); Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (holding unmarried individuals have a constitutional privacy right to contraception).

 

146. See Roe, 410 U.S. at 163-64 (holding the end of the first trimester marks the begin­ning of the compelling point at which the state has a legitimate interest in protecting the health of the mother, and states may proscribe abortion at that point, except when necessary to preserve the life of the mother).

 

147. See Ruby v. Massey, 452 F. Supp. 361, 366 (D. Conn. 1978) (holding the right to vol­untary sterilization is also entitled to due process protections).

 

148. See Cruzan v. Missouri, 497 U.S. 261, 277, 280 (1990) (stating an “incompetent” indi­vidual is not able to make an informed and voluntary choice to exercise any hypothetical rights).

 

149. See Planned Parenthood v. Casey, 505 U.S. 833, 833, 871 (1992) (holding informed con­sent and twenty-four-hour waiting period requirements did not violate the Constitution); Bellotti v. Baird, 443 U.S. 622, 643-44 (1979) (holding a state may require parental consent if there is an alternative option to the parent’s absolute veto).

 

150. See Casey, 505 U.S. at 881-83 (holding informed consent requirements that involve providing truthful and non-misleading information about the nature of the abortion procedure do not place an undue burden on a person’s privacy right to undergo abortion).

 

151. See Roe v. Wade, 410 U.S. 113, 155 (1973) (applying a strict scrutiny standard to the fundamental right to undergo abortion); In re Grady, 426 A.2d 467, 472-73 (N.J. 1981) (describing eugenic attitudes in informing the court’s decision regarding whether to sterilize a woman with an intellectual disability); In re Hayes, 608 P.2d 635, 639-41 (Wash. 1980) (citing former eugenic practices in establishing sterilization standards for adults with diminished decision-making capacity).

 

152. See Bellotti v. Baird, 443 U.S. 622, 643, 651 (1979) (holding that abortion statutes may not 1) permit judicial authorization for an abortion to be withheld from a minor found to be mature and fully competent to make this decision or 2) require parental consultation in every instance); Planned Parenthood v. Danforth, 428 U.S. 52, 53, 74 (1976) (holding unconstitutional a blanket parental consent requirement).

 

153. See Danforth, 428 U.S. at 74-75 (finding no significant state interest in requiring a blanket veto power by a minor’s parents if seeking an abortion).

 

154. See, e.g., D.C. Code § 21-2047.01 (2017) (requiring a guardian to petition the court for approval for abortion or sterilization if it is not a power set out in the initial guardianship order); In re Hayes, 608 P.2d at, 641 (holding the decision regarding whether to sterilize a woman with diminished capacity must be made in a court proceeding).

 

155. See Danforth, 428 U.S. at 74-75 (holding that parents cannot have an absolute, arbitrary veto over whether a minor can undergo an abortion).

 

156. See Frazier v. Levi, 440 S.W.2d 393, 393 (Tex. Civ. App. 1969) (holding the court did not have explicit statutory authority to order sterilization of a woman under guardian­ship, and could therefore not act); Marsha L. Reingen, supra note 44, at 838 (applying Frazier’s analysis to a guardian’s ability to consent to an abortion).

 

157. See Roe v. Wade, 410 U.S. 113, 163-64 (1973) (holding that, prior to viability, a person has a constitutional right to undergo abortion); Ruby v. Massey, 452 F. Supp. 361, 366 (D. Conn. 1978) (protecting the right to voluntary sterilization under due process).

 

158. See Planned Parenthood v. Danforth, 428 U.S. 52, 73-74 (1976) (holding unconstitutional a blanket parental consent requirement in which the parent has an absolute, arbitrary veto).

 

159. See Roe v. Wade, 410 U.S. 113, 163-64 (1973) (holding the fundamental right to privacy extends to include abortion); Ruby v. Massey, 452 F. Supp. 361, 366 (D. Conn. 1978) (holding that individuals have a constitutional right to voluntary sterilization).

 

160. See, e.g., In re Hayes, 608 P.2d 635, 641 (Wash. 1980) (holding only a court can determine whether sterilization is appropriate, and that the court must apply specific standards in determining whether the sterilization is appropriate).

 

161. See, e.g., D.C. Code § 21-2047.01 (2016) (requiring further judicial proceedings should a guardian wish to petition for sterilization or abortion); In re Grady, 426 A.2d 467, 475, 475 (N.J. 1981) (holding that in sterilization cases, the court’s judgment must substitute for the consent of the person).

 

162. See D.C. Code § 21-2047.01 (2016) (excluding situations in which abortion or steriliza­tion are medically necessary).

 

163. See In re Grady, 426 A.2d at 475, 481 (citing parens patriae jurisdiction of courts to hold a court may determine whether a person under guardianship should undergo ster­ilization); In re Hayes, 608 P.2d 635, 641 (Wash. 1980) (holding a court must authorize sterilization of a “mentally incompetent” woman).

 

164. Ableist is a term describing discrimination or prejudice against individuals with dis­abilities. Ableism need not be intentional; paternalism, for example, is one form of ableism that may be unintentional.

 

165. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 444 (1985) (citing the passage of the Rehabilitation Act of 1973, among other legislation, as evidence that discrimination against individuals with disabilities exists).

 

166. See Id. at 442-47 (holding that a zoning ordinance requiring a special permit to open a group home was based on an irrational prejudice).

 

167. See Id. at 442-47 (basing its decision not to create a quasi-suspect class for individuals with disabilities on the fact that 1) protective statutes existed, and thus persons with disabilities were not politically powerless; 2) legislators would refrain from assisting if there were a higher standard; and 3) the “variation in disabilities” would have to lead to varying rights and treatment).

 

168. See Buck v. Bell, 274 U.S. 200, 207 (1927) (relying on the assumption that a “feeble­minded” woman would bear a “feebleminded” child).

 

169. Cf. In re Grady, 426 A.2d 467, 482 (N.J. 1981) (explaining the court was compelled to adopt stricter evidentiary standards and factors to consider for sterilization of a woman with diminished capacity to prevent abuse of judicial authority).

 

170. See, e.g., D.C. Code § 21-2011(1) (defining best interest as determining what is proper for the well-being of the individual under guardianship while applying the least intrusive, least restrictive, and most normalizing course of action possible under the circum­stances); D.C. Code § 21-2011(25A) (2017) (explaining beliefs, values, and preference of the individual should be considered in substituted decision-making).

 

171. See Bellotti v. Baird, 443 U.S. 622, 643-44 (1979) (stating further the proceedings must be anonymous and expedited to allow an effective opportunity for the minor to obtain an abortion).

 

172. See, e.g., D.C. Code § 21-2011(11A) (2017) (defining incapacitated individual for health-care as an adult who cannot (1) appreciate the nature and implications of the decision, (2) make a choice, and (3) unambiguously communicate that choice).

 

173. See Bellotti, 443 U.S. at 643-44 (applying a best interest standard for minors who are not found to be mature enough to decide whether to undergo an abortion).

 

174. See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52, 72 (1976) (reiterating the law may properly subject minors to more stringent limitations than are permissible for adults).

 

175. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (establishing the constitutional right to procreate); In re K.E.J., 887 N.E.2d 704, 720 (Ill. App. Ct. 2008) (holding the application of the substituted judgement standard must be attempted before proceed­ing to determine whether sterilization is in the person’s best interest); In re Hayes, 608 P.2d 635, 637 (Wash. 1980) (holding judges must consider the person’s wishes to the greatest extent possible).

 

176. See In re Hayes, 608 P.2d at 637 (establishing minimum procedural requirements for proceedings to whether an individual with diminished capacity may undergo sterilization).

 

177. See Id. at 641 (holding the petitioner for sterilization must demonstrate these factors by clear and convincing evidence).

 

178. See, e.g., D.C. Code § 21-2011(11A) (2017) (defining incapacity to make health care decisions as the inability to effectively evaluate or communicate decisions).

 

179. See, e.g., D.C. Code § 21-2011(8) (2017) (providing that guardianship can only be granted over incapacitated individuals).

 

180. See, e.g., D.C. Code § 21-2049(a)(1)(A) (2017) (providing for the removal of a guardian should the guardian fail to conform as closely as possible to a substituted judgment standard in making decisions on the person’s behalf).

 

181. See In re K.E.J., 887 N.E.2d 704, 720 (Ill. App. Ct. 2008) (applying Illinois probate law to determine the substituted judgement standard must be attempted before proceeding to determine whether sterilization is in the woman’s best interest).

 

182. See Id. at 720 (finding that the law states guardians should pursue the best interest of the person under guardianship if the person’s preferences cannot be discerned).

 

183. See In re Hayes, 608 P.2d 635, 639, 641 (Wash. 1980) (citing the fundamental right to procreate in its decision to establish strict factors for sterilization proceedings).

 

184. See Id. (holding that to sterilize an individual with diminished capacity, there must be clear and convincing evidence presented that there is a need for contraception and that the individual cannot make his or her own decisions about sterilization).

 

185. See Id. (holding that there is a heavy presumption against sterilization of an individual with diminished decision-making capacity that a person seeking the sterilization must overcome due to the invasive and permanent nature of sterilization).

 

186. See In re Terwilliger, 450 A.2d 1376, 1382 (Pa. Super. Ct. 1982) (establishing standards for determining whether an individual with diminished capacity should undergo sterilization).

 

187. See Id. at 1382 (holding that the guardian must demonstrate that sterilization is in the person’s best interest by clear and convincing evidence).

 

188. See Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding a clear and convincing evidence standard is required prior to involuntary psychiatric commitment to prevent a violation of the Fourteenth Amendment).

 

189. See Id. at 426-27 (holding a preponderance of the evidence standard in civil commit­ment proceedings failed to meet constitutional due process requirements due to the extent of the harm and the possibility for erroneous determinations).

 

190. See Id. at 427-30 (finding civil commitment allows for correction of erroneous commit­ment, and the inquiry in a civil commitment proceeding differs from that of a criminal proceeding).

 

191. See Id. at 427-30 (declining to require states to adopt a “beyond a reasonable doubt” standard of proof for civil commitment cases).

 

192. See Id. at 430-31 (finding that, even though some states have adopted the “beyond a reasonable doubt” standard for commitment, due process did not require that such a standard be met).

 

193. See Skinner v. Oklahoma, 316 U.S. 535, 543-45 (1942) (Stone, J., concurring) (writing that the Court must take appropriate steps to safeguard liberty prior to undergoing sterilization).

 

194. See In re Hayes, 608 P.2d 635, 641 (Wash. 1980) (developing procedural standards for the state of Washington in cases determining whether an individual with diminished decision-making capacity should be sterilized, weighing the nature of the procedure with the minor’s interest).

 

195. See, e.g., Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (holding the due process right to counsel is determined by the nature of the interest affected, the comparative risk of erroneous deprivation without such safeguards, and the nature and magnitude of countervailing interests in not providing the safeguard).

 

196. See, e.g., Id. at 444-45 (applying the Mathews test to determine whether counsel was required by due process in a specific civil contempt case); Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 31-33 (1981) (neglecting to require representation for an indigent client in a case regarding the termination parental rights).

 

197. Lassiter, 452 U.S. at 31-32.

 

198. See, e.g., D.C. Code §§ 21-2031, 21-2033, 21-2041(h), 21-2042 (2018).

 

199. See, e.g., D.C. Code § 21-2011(11A) (2017) (including inability to effectively evaluate or communicate decisions in the requirements to determine that an individual lacks capacity to make health care decisions).

 

200. See, e.g., D.C. Code § 21-2011(8) (2017).

 

201. See, e.g., Id.

 

202. See, e.g., D.C. Code § 21-2049(b) (2017) (providing that an interested party may petition for an order that the individual under guardianship is no longer incapacitated, and that the individual is entitled to the same rights and procedures as the appointment proceedings).

 

203. See In re Braaten, 502 N.W.2d 512, 518 (N.D. 1993) (holding the legitimate and sub­stantial government interest of protecting individuals with disabilities must be balanced with the individual’s liberty interests in guardianship proceedings).

 

204. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding there is a constitutional right to procreate); In re Hayes, 608 P.2d 635, 637, 641 (Wash. 1980) (establishing requirements for sterilization petitions for persons under guardianship).

 

205. See In re K.E.J., 887 N.E.2d 704, 720 (Ill. App. Ct. 2008) (holding the substituted judge­ment standard is preferred over the best interest standard); In re Hayes, 608 P.2d 635, 641 (Wash. 1980) (stating a the individual’s preferences should always be considered to the greatest extent possible).

 

206. See In re Hayes, 608 P.2d at 639-40 (discussing the history of eugenics in its establish­ing guidelines for sterilization); In re Grady, 426 A.2d 467, 472 (N.J. 1981) (discussing eugenics in the court’s finding that judges must take particular care to protect individuals with disabilities in considering sterilization).

 

207. See D.C. Code § 21-2047.01(1); Dinerstein, supra note 42, at 239 (stating capacity is fluid over time and on particular subjects).

 

208. See In re Hayes, 608 P.2d 635, 637, 641 (Wash. 1980) (applying a clear and convincing evidence standard to specific factors to determine the best interest of the individual with diminished capacity, only after his or her wishes are considered).

 

209. See Carlson, supra note 10, at 7, 12-14 (describing a doctor’s involvement in perform­ing a sterilization of a young girl with an intellectual disability despite not obtaining a court order).

 

210. See Id. at 14, 17-22 (finding that, despite state laws requiring guardians to seek permis­sion to sterilize their daughter, Ashley X’s parents circumvented the law to sterilize their daughter).

 

211. See Planned Parenthood v. Casey, 505 U.S. 833, 876 (1992) (holding that an undue burden standard is appropriate to balance the state and individual’s interest in obtaining an abortion prior to viability).

 

212. See Id. at 877 (defining an undue burden as a substantial obstacle imposed by the state that hinders an individual’s ability to seek abortion of a nonviable fetus).

 

213. Cf. Wood, supra note 86, at 14-15 (describing opposition by guardians as a barrier to guardianship removal).

 

214. See Bd. of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972) (noting that before an individual is deprived of a liberty interest, he or she must be afforded the opportunity to be heard, consistent with due process).

 

215. See In re Grady, 426 A.2d 467, 482 (N.J. 1981) (explaining the court was compelled to adopt stricter standards for sterilization of a woman with diminished capacity to prevent abuse of judicial authority).

 

216. See D.C. Code § 21–2044 (2017) (claiming the decision as to the least restrictive alter­native involves the individual’s current state, potential for improvement of condition, and other factors).

 

217. See Frolik, supra note 28, at 741 (arguing that there is a judicial preference for plenary guardianship).

 

218. Gustin & Martinis, supra note 41, at 41-42 (suggesting supported decision-making as a less restrictive alternative to overbroad and over-applied guardianships).

 

219. See Id. at 41-42 (describing supported decision-making as a framework that empowers individuals with disabilities to be more self-determined).

 

220. See Cruzan v. Missouri, 497 U.S. 261, 277, 282-83 (1990) (recognizing the right to refuse treatment); Roe v. Wade, 410 U.S. 113, 163-64 (1973) (finding a constitutional privacy right to abortion); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding procreation is a fundamental right).

 

221. See Robert D. Dinerstein, Sexual Expression for Adults with Disabilities: The Role of Guardianship, Impact (Inst. on Comty. Integration & Research and Training Ctr. on Comty. Living, Minneapolis, MN), Spring/Summer 2010, at 13 (discussing the need to provide assistance, rather than control, over the sexuality of individuals under guardianship).

 

222. See Gustin & Martinis, supra note 41, at 42 (arguing that guardianship is appropriate in some circumstances, and that the call is solely to end undue and overbroad guardianship).

 

223. See Cruzan v. Missouri, 497 U.S. 261, 267-70 (1990) (explaining that bodily autonomy is ingrained in common law via the concept of battery and informed consent).

 

224. See In re Grady, 426 A.2d 467, 472 (N.J. 1981) (finding a court must take particular care to protect the rights of persons with intellectual disabilities in sterilization proceedings).

 

225. See Cruzan, 497 U.S. at 277, 282-83 (recognizing the right to refuse treatment); Roe v. Wade, 410 U.S. 113, 163-64 (1973) (finding a constitutional right to abortion); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding procreation is a constitutionally-protected right).

 

226. See Cruzan, 497 U.S. at 267, 277, 282-83 (recognizing the right to refuse treatment as an extension of the right to bodily autonomy); See Skinner, 316 U.S. at 543-45 (Stone, J. concurring) (claiming appropriate steps must be taken to safeguard liberty in ster­ilization proceedings).

 

227. See In re Grady, 426 A.2d 467, 482 (N.J. 1981) (adopting stricter standards for steriliza­tion of a woman with diminished capacity to prevent abuse of judicial authority).

 

228. See Planned Parenthood v. Casey, 505 U.S. 833, 876 (1992) (holding a state cannot place an undue burden on individuals seeking abortion); Roe, 410 U.S. at 163-64 (finding a constitutional right to abortion prior to fetus viability).

 

229. See, e.g., In re Hayes, 608 P.2d 635, 639 (Wash. 1980) (considering the fundamental right to procreate in its declaration that specific factors must be addressed in steriliza­tion proceedings).

 

230. See Gustin & Martinis, supra note 41, at 41-42 (offering supported decision-making as an alternative to overbroad guardianship).

 

231. See, e.g., Casey, 505 U.S. at 876 (holding the state cannot place an undue burden on individuals seeking abortion prior to viability); In re Hayes, 608 P.2d 635, 639 (Wash. 1980) (establishing strict standards and factors for sterilization of individuals with disabilities, particularly given the fundamental nature of the right).