Massachusetts Appeals Court rules that judge was wrong to order mentally ill woman to have an abortion and to then be sterilized

By Peter Schworm, Globe Staff

The Massachusetts Appeals Court today reversed a probate judge’s decision to order a schizophrenic woman to undergo an abortion and to then be sterilized, saying the woman had consistently expressed her opposition to the practice as a Catholic.

In October, the state Department of Mental Health filed a petition to have the woman’s parents named as guardians for the woman, who is only known as “Mary Moe,’’ so they could give consent for an abortion, according to the court.

Norfolk Probate and Family Court Judge Christina Harms, declared that the 32-year-old woman was not competent to make a decision about an abortion, citing “substantial delusional beliefs,” and concluded she would choose to abort her pregnancy if she were competent.

Earlier this month, Harms ordered that the woman’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 would then be performed, the ruling stated.

The judge also ordered the facility that performed the abortion to sterilize the woman “to avoid this painful situation from recurring in the future.”

The Appeal Court’s decision, released today, reversed the sterilization order in unusually strong terms.

“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,” wrote Appeals Court Judge Andrew Grainger.

In today’s Moe ruling, the court also concluded that Harms improperly decided the matter of Moe’s competence, and noted that a court-appointed guardian had determined Moe would decide against an abortion if competent.

According to the court, the woman showed up at a hospital emergency room last Oct. 15 where it was discovered that she was pregnant - and doctors concluded that Moe would be harmed more than the fetus if she was taken off medication used for the treatment of her mental illness.

Harms said the woman would “not choose to be delusional” if competent, and would choose to have an abortion “in order to benefit from medication that otherwise could not be administered due to its effect on the fetus.”

The parents of the woman, who has a long history of mental illness, believe an abortion is in their daughter’s best interests, according to the ruling.

The decision returns the matter to Norfolk Probate and Family Court. The woman is now believed to be five months pregnant.

“A determination should ensue with all possible speed before a different judge, and ... such a determination will benefit from an immediate examination establishing the viability and status of the pregnancy,’’ Grainger wrote today.

During the emergency room visit in October, Moe replied she “wouldn’t do that” when asked her views on whether she would abort the fetus. She also asserted she was not pregnant, mistakenly said she had given birth to a baby girl Nancy, and also wrongly claimed she had met the judge before.

Moe described herself as “very Catholic,” and would never have an abortion. Her parents, however, have stated that she is not an “active” Catholic, and believe that it is in the best interests of their daughter to terminate her pregnancy.

Moe, who also suffers from bipolar disorder, has been pregnant twice before. On the first pregnancy, she had an abortion. On the second she gave birth to a boy, who is now in the custody of her parents, according to the Appeals Court ruling.

At some point between her abortion and the birth of her son, she suffered a “psychotic break,” and has since been hospitalized numerous times for mental illness.

When she was in college, she began believing people were staring at her and saying she killed her baby. She becomes agitated when discussing her abortion, and has refused obstetric care and testing, the ruling stated.

Today's decision was based on a 1982 Supreme Judicial Court ruling which stated that the “personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent.”

Peter Schworm can be reached at schworm@globe.com. Follow him on Twitter @globepete.