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Forced abortion for a mentally ill woman? No way, says Mass. appeals court

A Massachusetts appeals court has verbally skewered a judge who ordered that a mentally ill woman have an abortion against her will even if it meant she had to be “coaxed, bribed, or even enticed” into a hospital.

The Massachusetts Appeals Court this week overturned the ruling by Norfolk Probate Judge Christina L. Harms, who had also ordered that the 32-year-old woman, known as “Mary Moe,” be sterilized.

The appellate decision noted that Moe “has consistently expressed her opposition to abortion” and likely would “continue to do so if she were competent.”

As for the sterilization order, state Appellate Court Associate Justice Andrew R. Grainger wrote: “No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.”

Records in probate and family court cases are usually kept private, but this case was unsealed because it was appealed. The revelation of Harms’ order and the language behind it sparked outrage from a variety of interest groups and politicians.

“It bothers me as a woman, that a woman can’t make a decision about her body,” state Sen. Susan Fargo, D-Lincoln, who chairs the Joint Committee on Public Health, told the Boston Herald.

Harms, a 20-year veteran probate and family court judge, retired from the court on Jan. 11. She could not be reached by msnbc.com for comment. She did not respond Thursday to a message forwarded to her by Massachusetts court officials.

The facts in the case are not in dispute, according to court documents. Moe, who suffers from schizophrenia and bipolar mood disorder, is a few months pregnant. She has been pregnant twice before: The first time she had an abortion; the second time she gave birth to a boy who is now in the custody of her parents. Between her abortion and the birth of her son, she suffered a “psychotic break,” and has been hospitalized numerous times for mental illness.

At a December hearing, the state Department of Mental Health asked a court to grant temporary guardianship of Moe to her parents. That would allow the parents, who were already caring for one child, to give consent to an abortion for their daughter. (Court documents do not mention who the father is.)

According to court records:

Moe also states that she is "very Catholic," does not believe in abortion, and would never have an abortion. Her parents, however, have stated that she is not an "active" Catholic. Moe's parents believe that it is in the best interests of their daughter to terminate her pregnancy.

Harms approved the guardianship, finding that Moe was incompetent to decide on an abortion based on “several and substantial delusional beliefs” -– including that Moe mistakenly believed she had a daughter and that she had previously met the judge.

According to the appellate ruling:

The judge ordered that Moe's parents be appointed as coguardians and that Moe could be "coaxed, bribed, or even enticed ... by ruse" into a hospital where she would be sedated and an abortion performed.


“...the judge directed that any medical facility that performed the abortion also sterilize Moe at the same time ‘to avoid this painful situation from recurring in the future."

Moe’s court-appointed lawyer, Doug Boyer, appealed Harms’ decision. Boyer did not immediately return a call for comment Thursday.

The appeals court reversed the sterilization order and set aside the abortion order, saying a determination on that matter should go before a different judge “with all possible speed.”

Massachusetts Department of Mental Health Commissioner Barbara Leadholm said the department's top priority "is protecting the safety, health and well-being of the individuals we serve."

"In this case, at the request of the individual’s independent medical provider and her parents and in the interest of protecting her health and safety, DMH petitioned the court to determine competency and to establish her parents as guardians. The Department conveyed the request of health care providers and the parents’ wishes in order to ensure the safety of a patient with severe mental illness,” Leadholm said in a statement.

The Department of Mental Health is not taking a position on the authority to perform an abortion and says it never sought or advocated for an order of sterilization. 

Despite scathing comments from women's rights groups and others, Boston Herald columnist Peter Gelzinis said the case is not so clear-cut.

In a column Wednesday titled "Logic found on both sides of this issue," he characterized the dilemma as “an awful Hobson’s choice, one that requires the wisdom of Solomon.”

He noted that doctors had suggested that stopping Moe’s psychiatric medications would place her in serious risk and plunge her "deeper into madness." But the same drugs also threatened the health of her baby.

“What yesterday’s decision seems to imply between the lines is that Judge Harms may have been trying to follow the wishes of Mary Moe’s parents. They are now caring for Mary’s son and, as co-guardians for their daughter, urged the court to rule in favor of an abortion,” Gelzinis wrote.

“There are so many variables here that making 'the right choice' is damned if you do, damned if you don't,” one reader commented in response to the column.

“Although, the parents of Mary Moe ARE legal guardians (of) her and her other child -- I think they DO have the right to say enough is enough. Having someone like Mary Moe OFF her meds is putting everyone in serious danger -- she could very well go off and kill herself, kill the parents, her other baby and then what? What would we all be saying?”

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