Should A Pregnant Developmentally Disabled Woman Receive a Court-Ordered Abortion?

This is a situation where bodily autonomy and choice are colliding and it’s very, very messy.

Nov 6, 2012 at 6:00pm | Leave a comment

In Nevada, a very sticky legal and ethical case is unfolding as a 32-year-old woman with developmental disabilities has become the battleground of an abortion case. The woman became pregnant while living in a group home setting, and her doctors are recommending abortion because it might put her health at risk. Meanwhile, her adoptive parents, acting as her guardians, insist that it would go against their Catholic values, and that, moreover, she has expressed a wish to keep the pregnancy.

The case is complicated by the fact that her developmental level appears to be about that of a six year old, which makes it extremely difficult for her to exercise carefully considered choices. Thus, this situation is turning into a case where other people need to make the abortion decision for her, and they’re battling over the patient’s best interests while also dragging moral issues into the matter. People on all sides of the abortion debate are weighing in on the case, but many of them are obscuring the basic humanity of the patient while they do it; for anti-choicers, it’s become a prime test case for forced birth, while pro-choice people are focused on the possible medical necessity of the abortion.

The specifics of her disabilities and medical condition have not been released. There is some limited information available; she apparently has a seizure disorder for which she needs to take medication, for instance. One of my initial concerns when reading about the case was when she was most recently evaluated to determine her mental capacity, and which techniques were used. Inaccurate test results could be especially important in this case, as it’s possible she’s more developmentally complex and aware than people are making her out to be, and she could exercise more choice in this situation.

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The use of adaptive technology like this electronic communication board can empower disabled people to exercise their own choices and actively participate in their medical care. (Image credit: Lisle Boomer)

I was also struck by the group home setting. Evidently, she was on birth control previously but was taken off because her guardians were concerned about weight gain on the medication, a common issue, especially if you’re also taking medications for seizures, many of which are known to cause weight gain. The use of birth control in group homes and institutions is very common, as is forcible sterilization to eliminate the issue altogether. It's curious that other birth control options not associated with weight gain (like an IUD) were apparently not considered.

My first concern was that she’d gotten pregnant in the group home as a result of abuse by fellow patients or staff, or even perhaps in the context of a consensual sexual relationship. Instead, it appears that she routinely left the grounds of the group home, and may have been performing sex work at a nearby truck stop. If that causes your eyebrows to rise, it should; it indicates both that she wasn’t receiving adequate care at the group home, and that she may potentially have been involved in coercive sexual encounters. Developmentally disabled women are frequent targets for rape and sexual assault and Elisa Bauer may be victim.

Some of her medical team believe the fetus may be at risk because of the seizure medications Elisa was taking during the early stages of pregnancy; as soon as her guardians found out about the pregnancy, they allegedly had her taken off the medications in the interest of protecting the fetus. I don’t know enough about the medical specifics here, but this concerns me. Many seizure medications need to be carefully tapered, and going without could put a patient at severe risk, which could endanger Elisa’s life as well as the developing fetus.

Her guardians insist they don’t want an abortion, and, moreover, they claim Elisa shares that sentiment. It’s hard to know if that’s true, though. She could be experiencing pressure from her guardians, or they could be deliberately interpreting her communications in a way that favors their point of view. Has Elisa been independently evaluated and has she met with counselors outside high-pressure settings? This is unclear from the reports on the case I’ve read thus far.

Some of Elisa’s doctors argue that abortion is the best option for her. Others are more neutral. Her guardians say Elisa is aware that she wouldn’t be able to raise the child and is willing to put it up for adoption, they claim to have adoptive parents lined up. Meanwhile, Elisa’s case is going to court, where a judge faces the decision of ordering an abortion, or allowing the pregnancy to continue.

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Disability rights activists have been taking the fight over our bodies to the very highest levels of government; in this image, ADAPT activists are meeting with the Deputy Secretary of Labor, Seth Harris. (Image credit: Department of Labor.)

This isn’t the first or the last time a court has been asked to intervene in a situation where decisions made by guardians may run counter to the best interests of their ward. Court orders have been issued to mandate medical treatments for childhood leukemia and other conditions when guardians and parents refuse them, for example, on the grounds that although those children cannot legally decide for themselves, it would be unjust to deprive them of medical treatment because of moral, ethical or other values being imposed on them by their parents or guardians.

Yet, this case has become a real lightning rod because of how charged the abortion issue is in the United States. This is also not as cut and dried as a case of treating cancer or mandating a blood transfusion to save a life; her own medical team is mixed on whether the pregnancy endangers the patient. Instead, this is a situation where morals are tangling with the law, and where any decision a judge makes is going to be unfairly weighted.

If the judge rules in favor of allowing the pregnancy to continue per the wishes of Elisa’s guardians, and possibly per Elisa’s wishes as well, it will be seized upon by the anti-choice community. If the judge favors a court-ordered abortion, the pro-choice community will count it as a victory.

But will it really be a victory for either side? This is a situation where bodily autonomy and choice are colliding and it’s very, very messy. It is not a simple case where a patient is exerting control over her own body, but one where others are fighting over her like a dog with a bone. I want to know what kinds of measures have been taken to establish communication with the patient, whether she truly understands the ramifications of what is going on, and how she really feels about this situation. Ultimately, this is her body, and this is her choice.

Whatever the outcome, this is a case that people should be paying attention to because of the deeper ramifications lying below the surface. How did a woman supposedly in the protective care of a group home get exposed to what sounds like repeated risks of sexual assault and abuse? How thoroughly are developmentally disabled adults evaluated and is every effort made to establish communication and determine how best to interact with them? And in cases where patients genuinely cannot communicate and lack the capacity to make choices of this nature, who should be making them? The law says parents and guardians, but is that always the best for the patient?