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An Open Letter to the Judges of the Probate and Family Court

An Open Letter to the Judges of the Probate and Family Court

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Published by frannie_carr
Christina Harms defended her recent ruling in a letter she sent Monday to other Massachusetts family court judges, saying she believed the schizophrenic woman would have chosen to have an abortion if she had been mentally competent.
Christina Harms defended her recent ruling in a letter she sent Monday to other Massachusetts family court judges, saying she believed the schizophrenic woman would have chosen to have an abortion if she had been mentally competent.

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Published by: frannie_carr on Feb 22, 2012
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02/06/2014

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An open letter to the judges of the Probate and Family Court
February 20, 2012Dear 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 thatmy decision not only lacked legal foundation but was pulled from “out of thin air” -- that theCourt’s decision led to a media firestorm that immediately caused Boston University to rescindits offer of employment to me. As all of you know, I had accepted an offer to serve full-time asAssociate Director for Judicial Clerkships and Internships within B.U. Law School. That offer has since been withdrawn for reasons that, according to BU’s deputy general counsel “haveeverything to do with the School’s legitimate concern that it did not want to worry about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 whenserving as the public face of the School.” That determination caused BU to decide – using theiwords – that I “[am] not the appropriate candidate for an outreach position that requiredimmediate and sustained interactions with students, alumni, and the judiciary”. Because this kindof reasoning – and from a highly regarded academic institution – is such a threat to judicialindependence, I wanted you to be aware of this.Additionally, because I was so roundly chastised by the three-member panel of the Appeals Courtfor 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 parentswant 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. Maryhas 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 thechild. 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 Moecompetent to make the abortion decision for herself? If she is competent, her own decision is thefinal word. If she is not competent, then a judge must do his/her best to discern what Mary Moe’schoice (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 methat she flatly denied she was pregnant. I took note of two other substantial delusions that MaryMoe expressed in the hearing before me: that she has a daughter named Nancy (which she doesnot) and her insistence that she knew me, when in fact we had never met – and I proceeded todecide that Mary was so significantly delusional that she was incompetent to make her ownabortion decision on a pregnancy the existence of which she vigorously denied.Ah, but then what to make of Mary’s statement that she is “very Catholic”? The Appeals Courttook me to task for not simply crediting Mary Moe’s statement. While I certainly considered thestatement, I did so in the context of all of the other evidence, including Mary’s own behavior anddemeanor. I did not think that Mary Moe’s “very Catholic” statement should end the need for any further inquiry, or deeper or more thoughtful analysis. Given that virtually all of Mary Moe’s
 
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 withmultiple partners, are certainly not "very Catholic" behaviors. In the absence of affirmativeobjective evidence that Mary Moe is “very Catholic “ (Mary doesn’t attend church, pray, wear across, etc.), I believed Mary’s own parents when they flatly stated that she is “not an activeCatholic”, which is not to say that I did not consider the possibility that this could have been aself serving representation on their part. The point is, the statements of a person suffering fromschizophrenia surely cannot simply be taken at face value.In weighing all the factors that might help discern what Mary Moe’s choice would be if competent, I gave most weight to the fact that Mary Moe’s pregnancy required that her doctorsremove her from some (not all) of her antipsychotic medication, to avoid damage to the fetus. Iwish I had written a scholarly paragraph or two about schizophrenia, reflecting on how painfuland dangerous schizophrenia is and why having Mary Moe taken off some of her medication,with her schizophrenia worsening, had important, possibly life-threatening, consequences – toher. As Probate and Family Court judges, we deal regularly with mental health issues, and knowthat people with untreated or poorly controlled schizophrenia commit suicide at far greater ratesthan the rest of the population. That Mary Moe’s pregnancy and resultant medication reduction puts her at substantial risk of killing or harming herself in the coming months seemed importantto me. I formed the judgment that religion would be a lesser consideration for Mary Moe thanher own safety and well-being. I viewed the interruption of Mary’s 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 wouldelect 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 themental illnesses, in terms of human suffering. As we know, people with untreated or poorlycontrolled schizophrenia often stop bathing, shaving, washing their hair, wearing shoes, and usingtoilets to urinate or defecate. The right combination of medications ameliorates these commonsymptoms, often to a remarkable degree, sometimes to at least a satisfactory degree. If MaryMoe’s schizophrenia may worsen to the point that she suffers from some or all of these commonsymptoms, what would be her substituted judgment? If she worsens to the point that she must beheld 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 possiblemisimpressions from two other aspects of the Appeals Court’s decision. First, I was scolded, interms that seemed to me to be derisive, for not giving Mary Moe a hearing, in accordance withfundamental due process. That is erroneous, as there was indeed a hearing before me, where Imet 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 thisdecision “out of thin air”. Certainly, the easy road for me as the trial judge would have been toavoid 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 inextricablefrom, my “substituted judgment” that an abortion was appropriate. I struggled with whether itwould 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 shewould 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 Moe’ssubstituted judgment would be to continue serial unplanned pregnancies, and therefore serialabortions. I concluded that her judgment would be to the contrary, were she competent to makethat judgment for herself.The Appeals Court reversed my attempt to spell out the means by which Mary could haveundergone 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 Courtinexplicably ignored that language. Instead, it referenced, as if in a vacuum, the second part of myruling, i.e., that she could be coaxed or enticed, including by ruse, to enter a hospital. With adelusional individual who denied that she was pregnant, I did not then, and do not now, envisionhow 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 totrumpet that the trial judge “forced” or “imposed” an abortion on a mentally ill woman. Quite tothe contrary, as we all know
, the legal principle of substituted judgment means determiningwhat the mentally ill person would choose (her “substituted judgment”) and then honoringher 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 raisingtheir 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 Iunderstand 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. Thatis a perfectly valid personal choice for a woman in Mary Moe’s situation to make. But it is notthe only choice. Everyone else’s choice for Mary is irrelevant. The only question we judges arehanded is what would Mary’s choice be as to abortion. This is an unpopular area of the law. Imade 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 anobjection to the insulting tone of the Appeals Court decision, in effect a judge-bashingadministered to me by three fellow judges. While it will make no difference in my case, it mightavoid this happening to other trial court judges in the future, and I think it is important for me tospeak to him. For any judge with a long career, there will be reversals handed down by theAppeals Court. It is, however, my hope that such reversals can in the future be accomplished inless derisive terms.My personal best to you all,Christina Harms

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