• Bruce Dennis Sales
  • D. Matthew Powell
  • Richard Van Duizend


This chapter deals with iegislation impacting upon the exercise by mentally disabled persons of a number of important, often “fundamental”, personal and civil rights. These rights range from the provision of life-preserving care and treatment for infants to the personal disposition of property after one’s death. They fall into several related categories. The first are those rights which are highly personal, such as the right to marry, to have and raise children, to be brought up in a family and to dispose of one’s property upon death as he or she wishes. These rights are translated into publicly sanctioned procedures such as marriage, termination of parental rights, adoption, and testamentary dispostion. The second involves the medically related areas of sterilization, abortion and medical care and treatment for infants, while the third involves the right to vote, which arises out of our system of government, and driver licensing; important to most of us for the mobility it provides.


Supra Note Disable Person Police Power Mentally Retard State Statute 
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  1. 1.
    See Wald, Basic Personal and Civil Rights, Principal Paper in THE MENTALLY RETARDED CITIZEN AND THE LAW 4 (M. Kindred ed. 1976).Google Scholar
  2. 2.
    See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a state miscegenation statute on the basis of the lack of a compelling state interest); Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating a mandatory public school attendance law as interfering with parents’ right to direct the education and upbringing of children under their control); Roe v. Wade, 410 U.S. 113 (1973) (holding that the fundamental right to privacy encompassed “a woman’s decision whether or not to terminate her pregnancy”); Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that a state may not constitutionally prohibit the use of contraceptives by married persons); Home Bldg. and Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) (discussing the importance of the right to contract). In Meyer the majority wrote that the liberty interest protected by due process “denotes not merely freedom from bodily restraint but also the right of an individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of [ones] own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 262 U.S. at 399. Strict judicial scrutiny can be triggered either by the impact of a law on the exercise of a “fundamental right,” or on the basis of the use of a “suspect” classification. The elements of a suspect classification were outlined by the Court in United States v. Carolene Prod. Co., 304 U.S. 144, 152–153 (1938), and emphasize the concept of political underrepresentation. The court noted in its well known footnote 4 that “...prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” For an argument that disabled persons should be treated as a suspect classfication, see Burgdorf and Burgdorf, A History of Unequal Treatment: The Qualifications of Handicapped Persons as a Suspect Class Under the Equal Protection Clause, 15 SANTA CLARA LAW. 855 (1975).Google Scholar
  3. 3.
    See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (voting restrictions invalidated because “less drastic means” were available and could be employed); Kusper v. Pontikes, 414 U.S. 15 (1973) (voting restrictions invalidated because they “unnecessarily” burdened the exercise of a protected interest and were not the least drastic means available.)Google Scholar
  4. 4.
    R. BARRON & H. FABING, EPILEPSY AND THE LAW 35 (1956).Google Scholar
  5. 5.
  6. 6.
    The eugenics movement resulted in the adoption of numerous state sterilization statutes beginning in 1907. The United States became a pioneer in the field of sterilization, though not without considerable legislative and judicial opposition. While many of the statutes were declared unconstitutional by state courts, the U.S. Supreme Court upheld a statute authorizing sterilization of “mentally deficient” persons in Buck v. Bell, 274 U.S. 200 (1927). See S. BRAKEL and R. ROCK, THE MENTALLY DISABLED AND THE LAW 207–209 (1971).Google Scholar
  7. 7.
    BRAKEL and ROCK supra note 6, at 206.Google Scholar
  8. 8.
    See Emergency Medical Care and Treatment For Infants infra. Google Scholar
  9. 9.
    See Wald supra note 1, at 6.Google Scholar
  10. 10.
    Lebacqz, Nonconsensual Medical Procedures and the Right to Privacy, Reaction Comment in THE MENTALLY RETARDED CITIZEN AND THE LAW supra note 1, at 113.Google Scholar
  11. 11.
    Id., at 114.Google Scholar
  12. 12.
    A number of Supreme Court cases have recognized that the safeguards afforded one individual’s exercise of rights may be restricted when his or her exercise of the right conflicts with the rights of others, particularly when free exercise may have an impact on health and safety. See Smith v. Organization of Foster Families, 431 U.S. 816 (1977) (procedures for removal of children from foster families were adequate where foster parents rights conflicted with those of biological parents); North Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) (summary seizure and destruction of individual inventory of poultry upheld in light of the public health hazards presented).Google Scholar
  13. 13.
    In applying an equal protection analysis to state statutes the Supreme Court has shown a tendency to examine more closely the state’s purpose in enacting the statute rather than some purpose “hypothesized” in an attempt to support the legislation after-the-fact. Summing up the line of Supreme Court cases which illustrates this tendency, Justice Brennan wrote in his dissent in Schlesinger v. Ballard, 419 U.S. 498, 520 (1975): While we have in the past exercised our imaginations to conceive of possible rational justifications for statutory classifications... we have recently declined to manufacture justifications in order to save an apparently invalid statute. Cf., James v. Strange, 407 U.S. 128 (1972); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 (1972). Moreover, we have analyzed asserted governmental interests to determine whether they were in fact the legislative purpose of a statutory classification, Eisenstadt v. Baird, 405 U.S. 438, 442–443 (1972), and we have limited our inquiry to the legislature’s stated purpose when these purposes are clearly set out in the statute or its legislative history. Johnson v. Robinson, 415 U.S. 361, 376 (1974).Google Scholar
  14. 14.
    See Wald, supra note 1, at 3–6.Google Scholar
  15. 15.
    See Murdock, Civil Rights of the Mentally Retarded — Some Critical Issues, 7 FAM. LQ. 1 n.2; J. MERCER, LABELING THE MENTALLY RETARDED (London 1973). One rehabilitation counselor for retarded persons expressing his own experience with traditional labels said... “it soon became apparent to me that knowing that the young person sitting in my office was labelled [educable mentally retarded] told me very little about him... I began to view the...label as of benefit only to educators... and before long began questioning that assumption as well... The one useful function of the label was that it allowed the funds necessary to provide the... services needed by these students.” Foss, Rehabilitation Counseling with the Mentally Retarded: Profession and Practice, in MENTAL RETARDATION: REHABILITATION AND COUNSELING 249, 260 (1974).Google Scholar
  16. 16.
    This approach is the basis of the constitutional requirement that restrictions imposed on the exercise of a fundamental right be “necessary,” i.e., be “closely tailored” to effectuate the asserted state goal, thus restricting the smallest number of persons possible while still serving the state’s important interests.Google Scholar
  17. 17.
    This requirement follows from the basic premise that a presumption of competency should operate in all instances. Much as the judiciary imposed the burden of proof on the party claiming incompetency, the legislature, which by classifying persons declares a person’s incompetence, should in fairness accept the same burden of justification before imposing like restrictions on entire classes of individuals. For a discussion of the presumption of competence see AMERICAN ASSOCIATION ON MENTAL DEFICIENCY, CONSENT HANDBOOK 14 (H. Turn-bull ed. 1976); Neuwirth, Heisler and Goldrick, Capacity, Competence, Consent: Voluntary Sterilization of the Mentally Retarded, 6 COLUM. HUMAN RIGHTS L. REV. 447, 448 (1975).Google Scholar
  18. 18.
    The Supreme Court has recognized that some laws, owing to their extreme vagueness, may be too imprecise to sanction a denial of personal liberty. Statutes which restrict persons’ exercise of individual rights on the basis of their being “feebleminded,” “insane” or the like, rather than on the basis of meaningful criteria, may be subject to a vagueness challenge. The Court’s test for vagueness is whether a person “of common intelligence must necessarily guess at [the classification’s] meaning and differ as to its application.” Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). See generally, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960).Google Scholar
  19. 19.
    See generally, MERCER, LABELING THE MENTALLY RETARDED 53–66 (Berkeley 1973) for a study of a single community’s response to retarded persons, including an in-depth study of how administrative agencies go about deciding, with vastly differing results, who is and is not a “retarded” person.Google Scholar
  20. 20.
    This is a basic requirement of procedural due process. The Court will determine how much individual scrutiny will be applied to any administrative decision, and at what point it will be applied based on a balancing of three factors: (1) the private interest that will be affected by the official action; (2) the likelihood or risk of an erroneous decision without the additional scrutiny and (3) the governmental interest involved. See Matthews v. Eldridge, 424 U.S. 319, 335 (1976). Clearly then, when an administrative decision impacts on the ability to exercise fundamental personal rights, the need for additional individualized procedures is great. Ordinarily, when the personal interest is especially strong, due process will require notice and a hearing prior to any actual deprivation. See Bell v. Bursen, 402 U.S. 535 (1971). A similar concept of individualized determination has been developed under the guise of equal protection analysis. Under this approach the Court has seen fit to invalidate laws which create an “irrebuttable presumption” which is neither “necessarily or universally true in fact.” Where this is so and the law impacts on the exercise of an important right, the Court has sometimes required the development of an administrative apparatus whereby individual determinations may be reviewed. See, e.g., Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974); Viandes v. Kline, 412 U.S. 441 (1973).Google Scholar
  21. 21.
    Freedom to make personal choices is a major source of personal growth and development. See Shaman, Persons Who Are Mentally Retarded: Their Right to Marry and Have Children, 12 FAM. LQ. 62–65 (1978); J. MERCER, LABELING THE MENTALLY RETARDED 127–40 (1973).Google Scholar
  22. 22.
    For a good overview of facilitative counseling and its importance see, Halpern and Berard, Counseling the Mentally Retarded: A Review for Practice, in MENTAL RETARDATION: REHABILITATION AND COUNSELING 269 (P. Browning ed. 1974).Google Scholar

Copyright information

© Springer Science+Business Media New York 1982

Authors and Affiliations

  • Bruce Dennis Sales
    • 1
  • D. Matthew Powell
    • 1
  • Richard Van Duizend
    • 1
  1. 1.Developmental Disabilities State Legislative Project of the American Bar Association’sCommission on the Mentally DisabledUSA

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