A sad and complicated legal case is brewing in Nevada.
Elaine Bauer is a mentally-disabled woman in her early 30s who has the mental capacity of a six-year old, epilepsy, and additional health problems. She lives in a group home in Reno. She is thirteen weeks pregnant.
The circumstances under which Ms. Bauer became pregnant are unclear. Apparently, Ms. Bauer "has a history of wandering away [from the group home] and having sex. . . . In the past, the woman had been given a birth control injection, but its side effects presented her with health complications, so it was discontinued" (Reuters). Articles published in LifeSiteNews (links below) go into more detail about Ms. Bauer's daily life and offer a slightly different take: For whatever reason, they report, she was allowed to leave her group home, and when she did, she would go to a local casino and a truck stop.
Assuming this to be accurate, I cannot for the life of me understand why someone with the mental capacity of a six-year old was knowingly permitted to go to a casino and a truck stop.
Ms. Bauer was adopted as a child by William and Amy Bauer, and they are still her official guardians. Mr. and Mrs. Bauer are pro-life and would prefer for their daughter to have the baby and give it up for adoption. This puts them in conflict with a county judge, who is considering ordering Ms. Bauer to have an abortion.
How did local authorities and a county judge become involved in Ms. Bauer's pregnancy? A just-issued Supreme Court of Nevada decision states that, under Nevada law, guardians must file reports to the county ("district") court annually and whenever the district court judge requests it. Mr. and Mrs. Bauer apparently "did not file their annual report for 2011 as required . . . and the district court obtained information about concerns over the ward's medical condition." Reuters reports that "county health officials were contacted by one of the woman's doctors" upon determining she was pregnant. Washoe County Judge Egan Walker then asked a county investigator to look into Ms. Bauer's situation.
Judge Walker apparently learned enough to call for several evidentiary hearings to consider how Ms. Bauer's pregnancy should be handled. Judge Walker appointed an attorney in the Washoe County public guardian's office to investigate Ms. Bauer's situation. He also appointed a guardian ad litem to Ms. Bauer-- this is someone who will provide advice to Judge Walker and consider Ms. Bauer's interests solely (as opposed to, e.g., the possibly-competing interests of the parents). So far, Judge Walker has heard from the investigator, the guardian ad litem, the attorney of her parents-- who argues that Mr. and Mrs. Bauer should solely represent their daughter's interests-- and several physicians.
Given her history of health problems, including the medication that she takes for epilepsy, several doctors have testified that Ms. Bauer should have an abortion, but at least one doctor disagrees.
There are several legal and ethical issues to work through here.
We do know that, under American law, a woman can have an abortion for any reason up to the point of fetal viability, so the issue isn't whether an abortion is legally permitted per se.
The main unresolved legal issue is who has the ultimate decision-making power over whether Ms. Bauer carries the pregnancy to term or terminates it. There are three candidates: Ms. Bauer herself, Ms. Bauer's parents, or Judge Walker.
Regarding Ms. Bauer, I don't see how someone with the mental capacity of a six-year-old can have an informed opinion about pregnancy and abortion. Would a six-year old even understand what a pregnancy is, exactly? How would the physical effects of pregnancy and the process of childbirth be explained to her? At the same time, how would she emotionally and intellectually process what it means to end a pregnancy, let alone the procedure for doing so?
Of course, Ms. Bauer receives regular medical treatment from doctors, including gynecological exams and management of her menstrual periods, so she is likely used to 'medical treatment' even if not fully aware of its nature and purpose. On balance, I would think that an abortion under general anesthetic would be a lot less traumatic than pregnancy and childbirth.
Given her mental condition and her legal status as a "ward" (a dependent of her parents and Nevada), state law implicitly determines that Ms. Bauer does not have the capacity to make this decision for herself. Generally, when someone is mentally incompetent, a legally authorized decision-maker exercises "substituted consent," meaning that they attempt to determine what the incompetent person would want if they were competent.
This strikes me as a bit of legal fiction. Ms. Bauer's entire life perspective and sense of her own interests and desires would be different if she did not have the mental capacity of a six-year-old. How can anyone extrapolate from who Ms. Bauer is now to what she might desire if she were a competent adult? In practice, I suspect that these decisions are made based on what the substitute decision-maker thinks is in the best interest of the person, rather than what the incompetent person 'wants' per se.
If not Ms. Bauer, who is the legally authorized substitute decision-maker?
Mr. and Mrs. Bauer say that they are the law-appointed decision decision makers. Judge Walker and the Nevada Supreme Court held that the decision making authority of guardians can be limited:
If Judge Walker decides, over the clear disapproval of the parents, to order Ms. Bauer to have an abortion, then this case will become a pro-life cause celebre. The spectre of the state 'forcing' anyone to have an abortion will be touted as a real-life example of how America is becoming a 'culture of death' dystopia. Furthermore, pro-lifers will assert, the decision hearkens back to a darker period in American history when some states routinely forcibly sterilized convicted criminals and the mentally ill and disabled.
(Note that sterilization of a mentally incompetent person based on the decision of a substitute decision-maker, in the best interests of the incompetent person, appears to be widely legal.)
I think that even people who are pro-choice might be a little uncomfortable with a judge ordering someone to have an abortion-- even if he is looking out for her health, best interests, etc.
In American law, notwithstanding some procedural hurdles, minors have the constitutional right to decide whether to obtain an abortion. I think that legal scholars and activists across the pro-choice-pro-life spectrum would agree that minors also have the right to refuse to have an abortion. This is the case, even though minors can be forced to do all sorts of things by their parents.
If we are comfortable with Ms. Bauer's pregnancy being terminated by judicial order, where are we drawing the invisible line between Ms. Bauer and, for example, the 15-year-old who is pregnant and does not want to terminate her pregnancy despite her doctor's recommendations and the wishes of her parents? We are legally comfortable with children receiving vaccines, but would we be comfortable with a 13-year-old being forced to undergo an abortion on the wishes of her parents?
Often, the pro-life position is the one that asserts a general principle (abortion is wrong and should be legally prohibited) that seems to founder on the rocky shoals of reality-- pregnancies caused by rape, pregnancies plagued by health problems, and so on. In this case, it is the pro-choice position that is challenged by difficult facts. Certainly, I think most people will have an easier time advocating for Ms. Bauer to have an abortion the more that it appears necessary to preserve her physical and mental health. If an abortion is not strongly indicated by physical and emotional complications, however, I think there is something about a state official ordering an adult woman-- regardless of her mental condition-- to have an abortion that will nag at people ethically and politically.
Links:
Article by Reuters (November 5, 2012): Nevada court mulls abortion for pregnant mentally disabled woman
Article published in The Huffington Post (November 6, 2012): Nevada Abortion Case: Judge Will Review Risks In Pregnancy Of Mentally Disabled Woman
Link to the opinion of the Supreme Court of Nevada (scroll down page to link to pdf document)(November 6, 2012): Bauer v. Dist. Ct. (No. 62025, November 6, 2012)
Article published in LifeSiteNews (November 6, 2012): Nevada judge questioned by state Supreme Court presses forward with force abortion case
Article published in LifeSiteNews (November 2, 2012): Court-summoned doctor recommends forced abortion for Nevada woman in first of two hearings
Article published in LifeSiteNews (November 1, 2012): Court may force disabled Catholic woman to abort her child
Article published in LifeNews.com (November 6, 2012): Judge Resumes Hearing to Force Abortion on Mentally Disabled Woman
Elaine Bauer is a mentally-disabled woman in her early 30s who has the mental capacity of a six-year old, epilepsy, and additional health problems. She lives in a group home in Reno. She is thirteen weeks pregnant.
The circumstances under which Ms. Bauer became pregnant are unclear. Apparently, Ms. Bauer "has a history of wandering away [from the group home] and having sex. . . . In the past, the woman had been given a birth control injection, but its side effects presented her with health complications, so it was discontinued" (Reuters). Articles published in LifeSiteNews (links below) go into more detail about Ms. Bauer's daily life and offer a slightly different take: For whatever reason, they report, she was allowed to leave her group home, and when she did, she would go to a local casino and a truck stop.
Assuming this to be accurate, I cannot for the life of me understand why someone with the mental capacity of a six-year old was knowingly permitted to go to a casino and a truck stop.
Ms. Bauer was adopted as a child by William and Amy Bauer, and they are still her official guardians. Mr. and Mrs. Bauer are pro-life and would prefer for their daughter to have the baby and give it up for adoption. This puts them in conflict with a county judge, who is considering ordering Ms. Bauer to have an abortion.
How did local authorities and a county judge become involved in Ms. Bauer's pregnancy? A just-issued Supreme Court of Nevada decision states that, under Nevada law, guardians must file reports to the county ("district") court annually and whenever the district court judge requests it. Mr. and Mrs. Bauer apparently "did not file their annual report for 2011 as required . . . and the district court obtained information about concerns over the ward's medical condition." Reuters reports that "county health officials were contacted by one of the woman's doctors" upon determining she was pregnant. Washoe County Judge Egan Walker then asked a county investigator to look into Ms. Bauer's situation.
Judge Walker apparently learned enough to call for several evidentiary hearings to consider how Ms. Bauer's pregnancy should be handled. Judge Walker appointed an attorney in the Washoe County public guardian's office to investigate Ms. Bauer's situation. He also appointed a guardian ad litem to Ms. Bauer-- this is someone who will provide advice to Judge Walker and consider Ms. Bauer's interests solely (as opposed to, e.g., the possibly-competing interests of the parents). So far, Judge Walker has heard from the investigator, the guardian ad litem, the attorney of her parents-- who argues that Mr. and Mrs. Bauer should solely represent their daughter's interests-- and several physicians.
Given her history of health problems, including the medication that she takes for epilepsy, several doctors have testified that Ms. Bauer should have an abortion, but at least one doctor disagrees.
There are several legal and ethical issues to work through here.
We do know that, under American law, a woman can have an abortion for any reason up to the point of fetal viability, so the issue isn't whether an abortion is legally permitted per se.
The main unresolved legal issue is who has the ultimate decision-making power over whether Ms. Bauer carries the pregnancy to term or terminates it. There are three candidates: Ms. Bauer herself, Ms. Bauer's parents, or Judge Walker.
Regarding Ms. Bauer, I don't see how someone with the mental capacity of a six-year-old can have an informed opinion about pregnancy and abortion. Would a six-year old even understand what a pregnancy is, exactly? How would the physical effects of pregnancy and the process of childbirth be explained to her? At the same time, how would she emotionally and intellectually process what it means to end a pregnancy, let alone the procedure for doing so?
Of course, Ms. Bauer receives regular medical treatment from doctors, including gynecological exams and management of her menstrual periods, so she is likely used to 'medical treatment' even if not fully aware of its nature and purpose. On balance, I would think that an abortion under general anesthetic would be a lot less traumatic than pregnancy and childbirth.
Given her mental condition and her legal status as a "ward" (a dependent of her parents and Nevada), state law implicitly determines that Ms. Bauer does not have the capacity to make this decision for herself. Generally, when someone is mentally incompetent, a legally authorized decision-maker exercises "substituted consent," meaning that they attempt to determine what the incompetent person would want if they were competent.
This strikes me as a bit of legal fiction. Ms. Bauer's entire life perspective and sense of her own interests and desires would be different if she did not have the mental capacity of a six-year-old. How can anyone extrapolate from who Ms. Bauer is now to what she might desire if she were a competent adult? In practice, I suspect that these decisions are made based on what the substitute decision-maker thinks is in the best interest of the person, rather than what the incompetent person 'wants' per se.
If not Ms. Bauer, who is the legally authorized substitute decision-maker?
Mr. and Mrs. Bauer say that they are the law-appointed decision decision makers. Judge Walker and the Nevada Supreme Court held that the decision making authority of guardians can be limited:
Although the guardian [Ms. Bauer's parents] is vested with broad duties for the care and custody of the ward, those duties may be limited by court order. In this regard, NRS 159.079(1) provides that "[e]xcept as otherwise ordered by the court, a guardian of the person has the care, custody and control of the person of the ward, and has the authority and . . . shall perform the duties necessary for the proper care, maintenance, education, and support of the ward, including, without limitation, the following: . . . (b) [a]uthorizing medical . . . or other remedial care and treatment for the ward." (Emphasis in original)So, at least for now, Judge Walker can proceed with his hearings. If he decides ultimately to let Ms. Bauer continue with the pregnancy, this story will fall off of the map.
If Judge Walker decides, over the clear disapproval of the parents, to order Ms. Bauer to have an abortion, then this case will become a pro-life cause celebre. The spectre of the state 'forcing' anyone to have an abortion will be touted as a real-life example of how America is becoming a 'culture of death' dystopia. Furthermore, pro-lifers will assert, the decision hearkens back to a darker period in American history when some states routinely forcibly sterilized convicted criminals and the mentally ill and disabled.
(Note that sterilization of a mentally incompetent person based on the decision of a substitute decision-maker, in the best interests of the incompetent person, appears to be widely legal.)
I think that even people who are pro-choice might be a little uncomfortable with a judge ordering someone to have an abortion-- even if he is looking out for her health, best interests, etc.
In American law, notwithstanding some procedural hurdles, minors have the constitutional right to decide whether to obtain an abortion. I think that legal scholars and activists across the pro-choice-pro-life spectrum would agree that minors also have the right to refuse to have an abortion. This is the case, even though minors can be forced to do all sorts of things by their parents.
If we are comfortable with Ms. Bauer's pregnancy being terminated by judicial order, where are we drawing the invisible line between Ms. Bauer and, for example, the 15-year-old who is pregnant and does not want to terminate her pregnancy despite her doctor's recommendations and the wishes of her parents? We are legally comfortable with children receiving vaccines, but would we be comfortable with a 13-year-old being forced to undergo an abortion on the wishes of her parents?
Often, the pro-life position is the one that asserts a general principle (abortion is wrong and should be legally prohibited) that seems to founder on the rocky shoals of reality-- pregnancies caused by rape, pregnancies plagued by health problems, and so on. In this case, it is the pro-choice position that is challenged by difficult facts. Certainly, I think most people will have an easier time advocating for Ms. Bauer to have an abortion the more that it appears necessary to preserve her physical and mental health. If an abortion is not strongly indicated by physical and emotional complications, however, I think there is something about a state official ordering an adult woman-- regardless of her mental condition-- to have an abortion that will nag at people ethically and politically.
Links:
Article by Reuters (November 5, 2012): Nevada court mulls abortion for pregnant mentally disabled woman
Article published in The Huffington Post (November 6, 2012): Nevada Abortion Case: Judge Will Review Risks In Pregnancy Of Mentally Disabled Woman
Link to the opinion of the Supreme Court of Nevada (scroll down page to link to pdf document)(November 6, 2012): Bauer v. Dist. Ct. (No. 62025, November 6, 2012)
Article published in LifeSiteNews (November 6, 2012): Nevada judge questioned by state Supreme Court presses forward with force abortion case
Article published in LifeSiteNews (November 2, 2012): Court-summoned doctor recommends forced abortion for Nevada woman in first of two hearings
Article published in LifeSiteNews (November 1, 2012): Court may force disabled Catholic woman to abort her child
Article published in LifeNews.com (November 6, 2012): Judge Resumes Hearing to Force Abortion on Mentally Disabled Woman
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