An open letter to the judges of the Probate and Family Court February 20, 2012 Dear Colleagues: Sometimes

trial judges make bad or wrong decisions. The Appeals Court can make mistakes too. So unfairly criticized was I by the Appeals Court in Guardianship of Mary Moe suggesting that my decision not only lacked legal foundation but was pulled from out of thin air -- that the Courts decision led to a media firestorm that immediately caused Boston University to rescind its offer of employment to me. As all of you know, I had accepted an offer to serve full-time as Associate Director for Judicial Clerkships and Internships within B.U. Law School. That offer has since been withdrawn for reasons that, according to BUs deputy general counsel have everything to do with the Schools legitimate concern that it did not want to worry about whether an individual who was at the center of a controversy would need to overcome that obstacle when serving as the public face of the School. That determination caused BU to decide using their words that I [am] not the appropriate candidate for an outreach position that required immediate and sustained interactions with students, alumni, and the judiciary. Because this kind of reasoning and from a highly regarded academic institution is such a threat to judicial independence, I wanted you to be aware of this. Additionally, because I was so roundly chastised by the three-member panel of the Appeals Court for my decisions in this case a tragic set of circumstances for which no outcome would have been easy or obviously correct -- I have decided to write from retirement to let you judge for yourselves. The facts are undisputed: Mary Moe is 31 years old, schizophrenic and pregnant, and her parents want her to have an abortion. Her parents came to court before me asking to be appointed her guardians, and to be granted the specific authority to consent to an abortion on her behalf. Mary has been pregnant twice before she terminated one pregnancy at age 19 by abortion her second pregnancy resulted in the birth of a son, now being raised by her parents who plan to adopt the child. Mary denies that she is currently pregnant. As we all know, a judge is thus required to apply the well-established first test: is Mary Moe competent to make the abortion decision for herself? If she is competent, her own decision is the final word. If she is not competent, then a judge must do his/her best to discern what Mary Moes choice (her substituted judgment) would be. I ruled that Mary Moe was incompetent to decide for herself. This seemed almost self-evident, given that Mary Moe was so delusional when she appeared for the courtroom hearing before me that she flatly denied she was pregnant. I took note of two other substantial delusions that Mary Moe expressed in the hearing before me: that she has a daughter named Nancy (which she does not) and her insistence that she knew me, when in fact we had never met and I proceeded to decide that Mary was so significantly delusional that she was incompetent to make her own abortion decision on a pregnancy the existence of which she vigorously denied. Ah, but then what to make of Marys statement that she is very Catholic? The Appeals Court took me to task for not simply crediting Mary Moes statement. While I certainly considered the statement, I did so in the context of all of the other evidence, including Marys own behavior and demeanor. I did not think that Mary Moes very Catholic statement should end the need for any further inquiry, or deeper or more thoughtful analysis. Given that virtually all of Mary Moes

other statements were delusional, I considered whether this statement was delusional as well. Ultimately, I could not find any objective evidence that Mary Moe is very Catholic. Her prior abortion hardly suggests that she is very Catholic and having pre-marital sex, and sex with multiple partners, are certainly not "very Catholic" behaviors. In the absence of affirmative objective evidence that Mary Moe is very Catholic (Mary doesnt attend church, pray, wear a cross, etc.), I believed Marys own parents when they flatly stated that she is not an active Catholic, which is not to say that I did not consider the possibility that this could have been a self serving representation on their part. The point is, the statements of a person suffering from schizophrenia surely cannot simply be taken at face value. In weighing all the factors that might help discern what Mary Moes choice would be if competent, I gave most weight to the fact that Mary Moes pregnancy required that her doctors remove her from some (not all) of her antipsychotic medication, to avoid damage to the fetus. I wish I had written a scholarly paragraph or two about schizophrenia, reflecting on how painful and dangerous schizophrenia is and why having Mary Moe taken off some of her medication, with her schizophrenia worsening, had important, possibly life-threatening, consequences to her. As Probate and Family Court judges, we deal regularly with mental health issues, and know that people with untreated or poorly controlled schizophrenia commit suicide at far greater rates than the rest of the population. That Mary Moes pregnancy and resultant medication reduction puts her at substantial risk of killing or harming herself in the coming months seemed important to me. I formed the judgment that religion would be a lesser consideration for Mary Moe than her own safety and well-being. I viewed the interruption of Marys full medical regimen as potentially life-threatening. If Mary understood this, which my observation of her behavior, demeanor, and responses indicated that she did not, I believed then, as I do now, that she would elect to abort the pregnancy in order to protect her own well-being. Apart from being life-threatening, schizophrenia is probably the most devastating among all the mental illnesses, in terms of human suffering. As we know, people with untreated or poorly controlled schizophrenia often stop bathing, shaving, washing their hair, wearing shoes, and using toilets to urinate or defecate. The right combination of medications ameliorates these common symptoms, often to a remarkable degree, sometimes to at least a satisfactory degree. If Mary Moes schizophrenia may worsen to the point that she suffers from some or all of these common symptoms, what would be her substituted judgment? If she worsens to the point that she must be held by commitment to a dreary and depressing locked facility, what would be her substituted judgment? While I do not wish to burden you with undue length, I do want to correct possible misimpressions from two other aspects of the Appeals Courts decision. First, I was scolded, in terms that seemed to me to be derisive, for not giving Mary Moe a hearing, in accordance with fundamental due process. That is erroneous, as there was indeed a hearing before me, where I met and examined Mary Moe (until Mary Moe herself terminated the hearing and walked out). Second, I was scolded for authorizing sterilization of Mary Moe, in conjunction with the abortion procedure. The three Appeals Court judges disdainfully wrote that I appear to have reached this decision out of thin air. Certainly, the easy road for me as the trial judge would have been to avoid this topic and I did find this the most difficult part of an unrelentingly difficult decision. After much thought, the issue seemed to me to be too closely connected to, if not inextricable from, my substituted judgment that an abortion was appropriate. I struggled with whether it would be intellectually dishonest for me to push the sterilization dilemma aside. At the age of 31, this delusional woman, suffering from schizophrenia and presenting as confused and unaware of her circumstances, had already been pregnant three times. I found nothing to suggest that she would discontinue her practice of unprotected sexual activity. I believed then, as I do now, that

these particular circumstances compelled me to address the question of whether Mary Moes substituted judgment would be to continue serial unplanned pregnancies, and therefore serial abortions. I concluded that her judgment would be to the contrary, were she competent to make that judgment for herself. The Appeals Court reversed my attempt to spell out the means by which Mary could have undergone an abortion. Although my ruling first specifically prohibited the use of force or restraints in order to have Mary Moe enter a hospital to undergo an abortion, the Appeals Court inexplicably ignored that language. Instead, it referenced, as if in a vacuum, the second part of my ruling, i.e., that she could be coaxed or enticed, including by ruse, to enter a hospital. With a delusional individual who denied that she was pregnant, I did not then, and do not now, envision how the substituted judgment could be carried out without coaxing, enticement, or ruse. The Appeals Court decision has caused many newspaper articles and online news services to trumpet that the trial judge forced or imposed an abortion on a mentally ill woman. Quite to the contrary, as we all know, the legal principle of substituted judgment means determining what the mentally ill person would choose (her substituted judgment) and then honoring her choice. I suspect you share my frustration with the bloggers and pundits who have written in the wake of the Mary Moe decision that they know women with schizophrenia who are successfully raising their children; does that stupid Judge understand this? Of course we know that can be true for some women with schizophrenia whose medications are successful, and they are the lucky ones. But those women are far, very far, different from Mary Moe, even at her best. While I understand and respect those who hold to Catholic or other anti-abortion beliefs, it misses the point to argue that Mary Moe should just have her baby and then the baby can be adopted. That is a perfectly valid personal choice for a woman in Mary Moes situation to make. But it is not the only choice. Everyone elses choice for Mary is irrelevant. The only question we judges are handed is what would Marys choice be as to abortion. This is an unpopular area of the law. I made a decision that appears to have been unpopular, but I made it in good faith and with good basis. I have requested a private meeting with the Chief Judge of the Appeals Court, to register an objection to the insulting tone of the Appeals Court decision, in effect a judge-bashing administered to me by three fellow judges. While it will make no difference in my case, it might avoid this happening to other trial court judges in the future, and I think it is important for me to speak to him. For any judge with a long career, there will be reversals handed down by the Appeals Court. It is, however, my hope that such reversals can in the future be accomplished in less derisive terms. My personal best to you all, Christina Harms