BOSTON, MASSACHUSETTS, January 20, 2012, ( – A Massachusetts woman who was spared a forced sterilization could still be forced to abort her unborn child against her will, if a lower court judge orders it.

On Tuesday, Massachusetts Appeals Court Associate Justice Andrew Grainger threw out a lower court ruling that would compel a 32-year-old woman to be sterilized and have an abortion because she suffers from schizophrenia and bipolar disorder. 

Probate Judge Christina Harms ruled the woman – who is at least five months pregnant and describes herself as “very Catholic” – could be “coaxed, bribed, or even enticed…by ruse” to go to the hospital, where she would be sedated for the procedures.

Grainger threw out the sterilization requirement, ruling that since no one had requested it, Harms produced the order sua sponte, “out of thin air.”

However, he remanded the abortion ruling back to a lower court, which will hear the case and make a new ruling. Judge Harms retired five days after issuing the opinion, so another judge will instead decide whether the woman, referred to only as “Mary Moe,” should be compelled to go through with the abortion.

The Massachusetts Department of Mental Health (DMH) and the woman’s parents are asking the state to overrule their daughter’s expressed wishes, so she could have the abortion and resume taking her medication. After the story broke, the DMH defended its decision to seek a forced abortion.

If the judge agrees with Harms that Moe would want to have an abortion if she was mentally competent, the abortion could go forward.

“Someone’s mental capacity should have nothing to do with someone’s ability to sterilize you and force you to have an abortion,” Stephen Casey, vice president and chief counsel of Texas Center for Defense of Life, told “Humanity is not a malleable trait. It is a permanent trait…Your degree of dependency doesn’t affect your humanity in the least.”

Casey, whose firm protects women from forced abortions, says he cannot remember another instance in modern times when a judge forced someone who is disabled to abort an unborn child.

The original ruling, Casey said, exhibited “a heavy dose of Social Darwinism” and violates the legal profession’s “core values and principles of being transparent and upfront, particularly to someone who is ‘one of the least of these.’”

Dana Cody of Life Legal Defense Foundation agreed, “Death should not be a treatment option.”

According to court documents, Moe had a “psychotic break” after an elective abortion years earlier and “believed people were staring at her and stating that she killed her baby.”

A 1982 Massachusetts State Supreme Court holds that the right to give birth “must be extended to all persons, including those who are incompetent.” But the parents are seeking to act as Moe’s legal guardians so they can provide a substituted judgment, saying Moe would want an abortion if she were competent.

Judge Grainger had noted, “While the judge’s finding that Moe does not have the capacity to decide whether to have an abortion is not necessarily one we might have made…it has support in the record.”

However, a court-appointed guardian ad litem found Moe would choose to have the child. Harms decided to disregard his finding and order the abortion without introducing additional evidence, ignoring Massachusetts’ legal precedent that holds “the court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent.” This holds even if the person would make “an unwise or foolish decision.” 

Justice Grainger wrote, “Moe has consistently expressed her opposition to abortion, and the GAL [guardian ad litem] report concludes that she would continue to do so if she were competent.” The next judge to hear this ruling will have to bear this standard in mind, he wrote.

Defenders of the unborn hope the court will respect the woman’s choice even when her decision does not result in an abortion. “In large part when choices are made by courts or administrative bodies…the choice is always death,” Cody told

“Why not make a choice for life? Get her the help she needs and let her carry he baby to term.”

The woman’s court-appointed attorney, Douglas Boyer, did not return a telephone call.

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