Abstract
As noted in the previous section, eugenic sterilization is a permanent deprivation of the fundamental rights to “privacy, marriage, sexual intercourse and procreation.”1 It is usually irreversible and is, of course, the most restrictive form of birth control available. For developmentally disabled persons, this procedure has traditionally been administered involuntarily by state hospital or penal authorities under the guise of treatment, and a number of state laws still permit sterilization without the express and sole consent of the handicapped person who is affected by the operation.2 While abortion is not a permanent deprivation, it does, if performed involuntarily, impinge upon these same fundamental rights.
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References
P. Wald, The Legal Rights of People with Mental Disabilities in the Community: A Plea for Laissez Faire, in PRACTISING LAW INSTITUTE, LEGAL RIGHTS OF THE MENTALLY HANDICAPPED 1044 (1973).
See Introduction to Subchapter 1.4: Sterilization
316 U.S. 535 (1942); see generally, Introduction, id., for discussion of Skinner, as well as cases and materials cited therein.
See e.g., Griswold vs. Connecticut, 381 U.S. 479 (1965).
Palko vs. Connecticut, 302 U.S. 319, 325 (1937).
Supra, note 4.
Id., at 495–6.
405 U.S. 438 (1972).
Id., at 453.
410 U.S. 113(1973).
Id., at 152–3.
Id., at 154. In Doe vs. Bolton, decided on the same day as Roe (January 22, 1973), the Court struck down provisions of a Georgia statute which impinged upon a woman’s right to have an abortion. This law required, inter alia, approval of two physicians other than the woman’s own to certify that an abortion was appropriate prior to the operation; approval of a hospital abortion committee; and performance of the operation in a state licensed and accredited hospital. The Court held that the acquiescence of two co-practicioners impinged on a physician’s right to practice; that the hospital committee was unduly restrictive of the woman’s personal rights; and the committee requirement which fails to take account of the woman’s rights during the first trimester pursuant to Roe is invalid. 410 U.S. 179 (1973). In Colautti vs. Franklin, 439 U.S. 379 (1979), the Court emphasized that the physician, rather than the state, has the discretion to determine when a fetus becomes “viable” or capable of maintaining itself outside of the mother. Critical decisions relating to abortion matters are therefore left up to the woman and her physician.
428 U.S. 52(1976).
Id., at 67–72.
Id., at-72–75.
61 L. Ed. 2d 797, 816–821 (1979).
432 U.S. 964 (1976).
432 U.S. 319 (1976).
Although the Court did not specifically define “non-therapeutic”, this phrase is generally regarded to refer to abortions that are not “medically necessary”—another amorphous term.
42 U.S.C. §§ 1381, et seq.
42 U.S.C. §§ 40, et seq.
Harris vs. McRae, ___U.S____(1980).
Model Sterilization Act, Section 4 precludes involuntary sterilizations in all instances, in the absence of a medical emergency, whether a developmentallu disabled person is an institutionalized or non-institutionalized person.
Section 7 of the Model Sterilization Act, supra Subchapter 1.4, describes the Human Rights Committee which is to act as an independent analyst to ensure that a sterilization is indeed voluntary. Section 8 provides for consent procedures and forms to further protect against involuntary sterilizations.
For a discussion and legal case history of the states’ involvement in abortion and developmentally disabled women, see “Abortion for the Severely Retarded: A Search for Authorization”, 1 M.D.L.R. 484 (May-June 1977); and, M. Burgdorf, “Marital and Family Rights”, an outline of cases and materials in the field set forth in PRACTISING LAW INSTITUTE, LEGAL RIGHTS OF MENTALLY DISABLED PERSONS (1979).
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Sales, B.D., Powell, D.M., Duizend, R.V. (1982). Abortion. In: Disabled Persons and the Law. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-0794-6_6
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