UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JANE DOE I, by her conservator and next : friend, Robert Dinerstein, et al. , : : Plaintiffs, : : Civil Action No.: 01-2398 (RC) v. : : Re Document Nos.: 326, 328 DISTRICT OF COLUMBIA, : : Defendant. :
MEMORANDUM OPINION
G RANTING IN P ART AND D ENYING IN P ART D EFENDANT ’ S M OTION FOR S UMMARY J UDGMENT , AND G RANTING IN P ART AND D ENYING IN P ART P LAINTIFFS ’ M OTION FOR P ARTIAL S UMMARY J UDGMENT
I. INTRODUCTION Plaintiffs Jane Doe I, Jane Doe II, and Jane Doe III, who broug ht suit against Defendant the District of Columbia in 2001, w ere women with intellectual disabilities committed to the District’s care. Plaintiffs’ or iginal complaint alleged that th e District denied them constitutional due process by consenting, against their wishes, to elective su rgeries they received—which, for Jane Doe I and Jane Doe III, were elective abortions. After fif teen years of litigation, those claims’ core allegations remai n unresolved and are reiterated i n Plaintiffs’ Second Amended Complaint, which brings additi onal common law battery and Distr ict of Columbia statutory claims against the District. The parties now move for summa ry judgment on the District’s liability for the due process and battery claims, as well as for Plaintiffs’ claims b rought under D.C. Code § 7-1305.14, which provides a statut ory cause of action for civ il rights deprivations based on an individual’s intellect ual disability. The D istrict also moves f or summary judgment on Plaintiffs’2 claims brought under D.C. Code § 7-1305.13, which provides a st atutory cause of action to compel the District to provide any rights guaranteed to intelle ctually disabled i ndividuals under the District’s Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978. On review of the parties’ filings and the record presented, the Court determines that the undisputed facts require the Cour t to conclude, as a matter of law, (1) that the District did not provide Jane Doe I and Jane Doe III with constitutionally adequ ate procedures before the District authorized abortions on their beha lf, (2) that th e District fol lowed its official policies when doing so, (3) that the resulting aborti ons were therefore violations of Jane Doe I and Jane Doe III’s procedural due process rights, (4) that the District is also li able for battery by failing to obtain valid consent for Jane Doe I a nd Jane Doe III’s abortions; and (5) that the abortions violated Jane Doe I and Jane Doe III’s ri ghts under D.C. Code § 7-1305.14. Th e Court accordingly will enter judgment for Plaintiffs on Jane Doe I and Jane Doe III’s due pr ocess claims, on their battery claims, and on their claims under D.C. Code § 7-1305.14. But be cause D.C. Code § 7-1305.13 provides a cause of action for only prospective relief, which P laintiffs do not seek, the Court will enter judgment for the Distri ct on Plaintiffs’ claims brought under that section. And because, for Jane Doe II, Plaintiffs do not asse rt a liberty interest protec ted by the substantive component of the Fifth Amendment’s Due Process Clause, the Court will enter judgment for the District on Jane Doe II’s due process claim t o the extent that it alleges asubstantive due process violation and not a procedural due process violation. Genuine issues of material fact p ersist regarding whether the D istrict denied Jane Doe II’s family members the right to give or withdraw consent f or Jane Doe II’s surgery in accordance with the expectation c reated by a District statute. Accordingly, the Court will deny the parties’ motions for summa ry judgment (1) on Jane Doe II’s due process claim, to the extent3 that it alleges a procedural due process violation and not a su bstantive due process violation; (2) on Jane Doe II’s battery claim; and (3) on Jane Doe II’s cl aim under D.C. Code § 7-1305.14. 1

II. BACKGROUND A. Care for the Intellectually D isabled in the District of Col umbia Forest Haven was a District in stitution located in Laurel, Mary land that served the District’s intellect ually disabled population. See Does I Through III v. District of Columbia , 216 F.R.D. 5, 7 (D.D.C. 2003) (describing Forest Haven). 2 Plaintiffs in this case were all residents at Forest Haven for some period of time before its closure. See First Am. Compl. ¶ 7, ECF No. 91; Answer to the First Am. C ompl. ¶ 7, ECF No. 90. In 1978, the Di strict consented to a judgment that found that the care provided a t Forest Haven violated resi dents’ federal constitutional rights, that prohibited any further adm issions to Forest Haven, and tha t set an initial schedule for gradually deinstitutionalizing residents. Evans v. Washington , 459 F. Supp. 483, 484, 487–88 (D.D.C. 1978). Later that year, the District C ouncil enacted the Mentally Reta rded Citizens Constitutional Rights and Dignity Act of 1978, which sought “[t ]o secure constitutional rights to [intellectually disabled] pers ons” and “to provide and define r ights of procedural due process . . .

1 The Court also denies as moot P laintiffs’ request for oral arg ument on their motion for partial summary judgment. See Pls.’ Mot. Partial S umm. J. 1, ECF No. 328.
2 Although the record in this case us es the terms “developmental ly disabled,” “feeble-minded,” “intellectuall y disabled,” and “mentally retar ded” interchangeably, the Court— like the current D.C. Code—uses t he term “intellectually disabl ed” to refer to Plaintiffs and similar persons in the District’s care. See generally, e.g. , D.C. Code § 7-1301.02 (referring to “residents of the Distr ict of Columbia with intellectual disabi lities” and to “persons with intellectual disabilities” whe n stating the purpose of the pres ent codification of the Mentally Retarded Citizens Constitutiona l Rights and Dignity Act of 1978 ); id. § 21-2203(2) (noting that a “diagnosis of an intellectual di sability” is not a reason to in fer mental incapacity to make a health-care decision).4 for such persons.” Mentally Retarded Citizens Constitutional Ri ghts and Dignity Act of 1978, pmbl., No. 2-297, 25 D.C. Reg. 5094, 5094 (Nov. 8, 1978) (act c odified as amended at D.C. Code §§ 7-1301.01 to 7-1306.05). For intel lectually disabled in dividuals residing i n the District’s care, the Act created procedures that allowed relatives or medi cal officers to consent on the individuals’ behalf to essential surgeries in medical emergenci es, but it did not enact similar procedures for elective surgeries. See id. § 507, 25 D.C. Reg. at 5130–31 (originally codified at D.C. Code § 7-1305.07) (repealed 2008). The District nonetheless ha d a policy in place from 1978 until 1990 for elective surgeries: a District official would “si gn consent forms . . . for electiv e surgery without having been appointed guardian and without consulting with the person havin g surgery.” Does I Through III v. District of Columbia , No. 01-2398, 2006 WL 2864483, at *1 (D.D.C. Oct. 5, 2006); accord Def.’s Statement of Undispute d Material Facts ¶¶ 5–6, ECF No. 3 26-30 [hereinafter Def.’s Statement]; Pls.’ Statement of U ndisputed Material Facts ¶¶ 4–6 , ECF No. 328-1 [hereinafter Pls.’ Statement]. 3 This policy remained in place ev en after the District of Colum bia Council enacted the Health-Care Deci sions Act of 1988, which declared t hat “[a]n individual shall be presum ed capable of making health-car e decisions unless certified otherwise under . . . this act”; “[m]ental incapacity to make a h ealth-care decision shall not b e inferred from the fact that an individua l . . .[i]s [intellect ually disabled] or has been determined by the court to be incompetent to refuse commitment”;

3 The District objects to Plainti ffs’ Statement of Undisputed Ma terial Facts as a whole and contends that it “liberally m ixes immaterial facts with arg uments and legal conclusions.” See Def.’s Resp. Pls.’ Statement of U ndisputed Material Facts 1, EC F No. 335-1 [hereinafter Def.’s Opp’n Statement]. Because the Dis trict has not filed a motion t o strike Plaintiffs’ Statement, the Court will not analyze the mer its of the District’s objection. In this opinion, the Court cites to Plaintiffs’ Statement to suppor t only facts on which the partie s agree or descriptions of Plaintiffs’ contentions.5 “[m]ental incapacity to make a h ealth-care decision shall be ce rtified by 2 physicians”; and “[i]n the absence of a durable power of attorney for health car e and provided that the incapacity of the principal has been certified,” consent to a health-care service, treatment, or procedure may be gi ven, in the order of priority below, by “(1) [a] court-appoin ted guardian or conservator of the patient , if the consent is within the scope of t he guardianship or conservators hip; (2) [t]he spouse of the patient; (3) [a]n adult child of the patient; (4) [a] parent of the patient; (5) [a]n adult sibling of the patient; or (6) [t]he nearest living rel ative of the patient.” Health-Care Decisions A ct of 1988, §§ 4, 5(a), 11(a), No. 7-189 , 35 D.C. Reg. 8653, 8654, 8660–61 (Dec. 1, 1988) (codified as amended at D.C. Code §§ 21- 2203, 21-2204(a), 21-2210(a)). Indeed, despite how it differed fro m the Health-Care Decisions Act’s requirements, the District’s policy for intellectua lly disabled individuals’ elec tive surgeries was put in writing in
1990. See Does I Through III , 2006 WL 2864483, at *1 (“In April 1990, [the District’s] longstanding policy was put in writing.”); accord Def.’s Statement ¶ 6; Pls.’ Statement ¶ 7. In Forest Haven’s written Policy H -18, the District detailed proce dures for granting permission for residents’ medical, dental, or sur gical treatment, including el ective surgeries: although either a resident’s parent or the Forest Haven Superintendent could give informed consent for a resident’s elective surgery, the Superintendent could also give consent alone, after discussing the matter with a medical officer. See Def.’s Statement ¶ 7; Pls.’ S tatement of Disputed Material Facts ¶ 7, ECF No. 337-20 [hereinafte r Pls.’ Opp’n Statement]; Pls.’ Statement ¶¶ 7–8. 4 The

4 Policy H-18, dated April 10, 1990, appears to have replaced an other written Policy H-18, dated September 9, 1988, that a ddressed the same subject matter. See Def.’s Ex. 4, ECF No. 326-4 (reproducing the 1990 vers ion of Policy H-18, which d eclares in a concluding paragraph that “Policy Dir ective No. H-18 . . . , dated Septemb er 9, 1988, is hereby revised and should be removed from the policy manual and/or record file and destroyed”). Because the6 record shows that, in implemen ting Policy H-18, the District’s staff would not always make contact with residents’ familymembers or guardians before a me dical procedure. See generally Hubbard Dep. 124:2–20, Def.’s E x. 5, ECF No. 326-5 (indicating that the District would look for a parent or relative to sign a consent form, but estimating tha t two-thirds of intellectually disabled people in the District ’s care lacked a “next of kin” o r guardian); Washington Dep. 61:5–67:1, 122:15–18, Pls.’ Ex. 53, ECF No. 337-15 (explaining how one District employee attempted without success to contact a resident’s family member s). Meanwhile, between 1978 and Forest Haven’s ultimate closure in 1991, the District moved former Forest Haven resid ents out of Forest Haven and int o community-based facilities, though the institution continued to house individuals during th e transition period. See Evans v. Fenty , 701 F. Supp. 2d 126, 131 (D.D.C. 2010) (“By October 1991, all plaintiffs had been moved from Forest Haven and the inst itution was closed.”). Throughout the period before Forest Haven’s 1991 closure, the Distri ct’s Mental Retardation and Dev elopmental Disabilities Administration (MRDDA) ope rated Forest Haven. See generally id. at 137 (noting that the MRDDA served Evans class members, who were all Forest Haven residents); Pls.’ Ex. 35, ECF No. 330-2 (reproducing a medical c onsent form showing in the he ader that Forest Haven was run under MRDDA’s authority); Pls.’ Ex. 60, ECF No. 342-3 (reproduc ing a Forest Haven policy

parties agree that betwee n 1978 and 1990 the District’s policy for elective surgeries was to sign consent forms without having been appointed guardian and withou t consulting with the person having surgery, the Court will assume that the 1988 version of Policy H-18, if it existed, memorialized the 1978–1990 policy on w hich the parties agree. See Def.’s Statement ¶ 6; Pls.’ Statement ¶ 7. In addition, the parties have pr oduced copies of Policy H-18 th at each appear to have at least one missing page. See Def.’s Ex. 4, ECF No. 326-4 (reproducing Policy H-18’s first p age, which concludes with paragraph A .3, followed by another Policy H-18 page that appears to begin with paragraph C.2); Pls. ’ Ex. 7, ECF No. 328-6 (same). B ecause the parties’ representations about Policy H-18’ s contents largely agree, the Court adopts those representations.7 manual showing the same). After i ntellectually disabled individ uals left Forest Haven, MRDDA remained responsible for their care. See generally Pls.’ Ex. 13, ECF No. 328-12 (noting that, as MRDDA’s Administrator, Reginald Wells managed the District’s hu man services system for individuals with intel lectual disabilities , in which “[s]ervice s were rendered in a variety of community settings”). Even after Forest Haven clos ed in 1991, however, the District’s policy for elective surgeries remained largely the s ame. The District’s written pol icy from 1992, Policy H-6, provided that “[t]he MRDDA Administrator is r esponsible for signing the infor med consent form”; “[t]he Administrator will sign the Informed Consent Form after being adequately advised of the need for the ele ctive . . . surgical . . . treat ments, expected outcome . . . , nature and degree of risks . . . , and the impa ct of abstaining from treatment procedure by the primary care physician”; “[f]amily contact is attempte d by the physician or nurse at the most current or last telephone number listed”; “[i]f the family cannot be reach ed at [the most current or lasttelephone] number, permission to send a mailgram, to the most current or last know n address, is obtained”; “[i]nformed consent ob tained from the family must have two staf f signatures on the Informed Consent Form”; and “[t]he primary care physician . . . is re[s]ponsible for provid ing family with detailed information concerning the treatment or procedure plan ned for the customer.” Def.’s Ex. 7, ¶¶ B.1–4, ECF No. 326-7 (reproducing Policy H-6); Pls.’ Ex. 11, ¶¶ B.1–4, ECF No. 328-10 (same). The policy did, h owever, state that “[i]nformed consent must be given by the parent or [g]uardian.” Pls.’ Ex. 11 (stating so in the introduc tion to the policy). But despite that apparent change to the previ ous policy, the 1992 policy reitera ted that a District official (now the MRDDA Administrator, previouslythe Forest Haven Superintendent ) could sign informed8 consent forms for elective surgeries, even if the intellectuall y disabled individual or her family members had not consented. See Def.’s Statement ¶ 13; Pls.’ Statement ¶¶ 9–10. The record identifies three ke y District employees who were, inthe 1980s and 1990s, responsible for the care of t he intellectua lly disabled populat ion residing in Forest Haven and other District facilities. Regina ld Wells was Forest Haven’s Superintendent from May 1984 until January 1986. See Pls.’ Ex. 13, ECF No. 328-12 (reproducing Mr. Wells’s resume). Succeeding Mr. Wells, Clifford Hubbard was F orest Haven’s Superintendent f rom 1986 until 1991, when Forest Haven closed. Hubba rd Dep. 295:22–296:2, Pls.’ Ex. 4, EC F No. 328-5. Afterward, he served for a time as MRDDA’s Acting Administrator. See id. at 350:1–6; Pls.’ Ex. 12, ECF No. 328-11 (reproducing a consent form from 1994, in which the title “Acting Administrator, MRDDA” appears below Mr. Hubbard ’s name). Lastly, Francis Bowie was MRDDA’s Acting Administrator from March 1995 unt il March 1996, and MRDDA’s Adm inistrator from March 1996 until at least 1999. See Bowie Dep. 1, 9:11–10:8, Pls.’ Ex. 8, ECF No. 328-7 (recountin g, in a 1999 deposition, Ms. Bowie’s MRDDA employment).
B. Jane Doe I On May 19, 1960, Jane Doe I was committed to the District’s car e and became a Forest Haven resident. See Def.’s Ex. 1, ECF No. 326-1 (findi ng in a court decree that Ja ne Doe I was “a[n] [intellectually di sabled] person who re quires supervision , control, and care,” and committing her “to the District Training School [Forest Haven] as a public patient”); Def.’s Ex. 35, ¶ 2, ECF No. 340-1 (allegin g, in a District petition fr om 1988 or shortly afterward, that Jane Doe I “was committed to F orest Haven in 1960”); First Am. Compl. ¶ 7, ECF No. 91;9 Answer to the First Am. Compl. ¶ 7, ECF No. 90. 5 Jane Doe I resided at Forest Haven until at least the mid-1970s. See Does I Through III v. District of Columbia , 216 F.R.D. 5, 7 (D.D.C. 2003) (“From the time of [her] institutionaliz ation through 197 8, [Jane Doe I] resided in Forest Haven . . . .”); Def.’s Ex. 35, ¶ 2, ECF No. 340-1 (alleging th at “[i]n 1977 [Jane Doe I] was outplaced to a group home”). She gave birth to a son in 1982. See Def.’s Ex. 8, ¶ 1, ECF No. 326-8 (noting, in findings of fact issued after a court hea ring, that Jane Doe I “gave birth to her child on July 22, 1982” and “is learning by caring for her son”); Jane Doe I Dep. 10:2–7, Pls.’ Ex. 24, ECF No. 328-22 (agr eeing that Jane Doe I’s son wa s born on July 22, 1982). A District of Columbia Superior Court Hearing Commissioner revi ewed Jane Doe I’s commitment in an oral hearing on August 10, 1982. See Def.’s Ex. 8, ECF No. 326-8 (explaining that “[t]his matter came before the Hearing Commissioner for a six month review” and “[a]n oral hearing was held”). The Heari ng Commissioner reported that, at the hearing, Jane Doe I “expressed a desire to have no more children.” Id. ¶ 3. Because the Superior Court found that it “require[d] further medical, ps ychological and ps ychiatric info rmation concerning the respondent’s competence to decide on the use of alternative met hods of birth contro l, specifically her competence to choose tubal lig ation,” the Superior Court or dered the District to “provide independent assessments” of Jane Doe I on that topic. Id. at 2527–28. The Superior Court

5 The District alleges, without cit ation, that Jane Doe I was in voluntarily committed at the time of the elective abortion upon w hich she sues, but that her commitment status later became voluntary. See Def.’s Mem. P. & A. Supp. Mot . Summ. J. 4, ECF No. 326 [herein after Def.’s Mem.]. A copy of a petition that th e District fil ed in the Dist rict of Columbia Superior Court appears to corroborate this claim. See Def.’s Ex. 35, ECF No. 340-1 (re producing the District’s petition, which the District appears to have filed in 1988 or l ater, and which sought “an order appointing a guardian ad litem and . . . determination of wheth er an abortion should be performed”). The petition sta tes that, “[o]n or about July 22, 1986,” Jane Doe I was found to be only “mildly mentally retarded” a nd so she was discharged from her commitment. Id. ¶ 4. It further states that, on that date , Jane Doe I “then voluntarilyadmitted herself to the District of Columbia for habilitation and care after having been found comp etent to do so.” Id. ¶ 4.10 required the District’s independe nt assessments to “address whe ther [Jane Doe I’s] decision to have no more children [was] temporary or permanent.” Id. at 2528. Jane Doe I’s case came before the District of Columbia Superior Court again on October 10, 1984, “pursuant to a request for a Court order authorizing the performance of an abortion.” Def.’s Ex. 9, ECF No. 326-9; see Def.’s Ex. 11, ECF No. 326-11 (documenting, in docket notes for Jane Doe I, a hearing on October 10, 1984 about the “decisi on to have a therapeutic abortion”); Def.’s Statement ¶ 17; Pls.’ Statement ¶ 19. Althou gh the Superior Court’s order implies that Jane Doe I made the request, Jane Doe I’s former c ounsel believes that the District filed the request with the court. Compare Def.’s Ex. 9 (noting in the Sup erior Court’s order that the “request for a Court order authorizing the performance of an abortion” was “requested by [Jane Doe I]”), with Rosenau Dep. 21:18–22, 26:14–27:5, 51:13–52:10, Pls.’ Ex. 16, ECF No. 328-15 (explaining that Mr. Ros enau represented Jane Doe I at her October 1984 hearing, and recalling that a “p raecipe,” which only t he District typica lly filed, initiated the matter); and Def.’s Ex. 11 (implying, in docket notes for Jane Doe I, that a “Praecipe” was f iled on October 2, 1984). After considering evidence, the Superior Court found that Jane Doe I was competent “to make a knowing, voluntary and infor med choice regarding her pre gnancy” and “to decide at [that] time whether an abortion [ was] in her best interest.” De f.’s Ex. 9, at ¶¶ 1–2. The Superior Court then ordered on October 11, 1 984 “that the request for au thorization for an abortion [was] granted.” Id. at 2665. Notwithstanding this Supe rior Court order, the partie s in this case have previously represented that Jane Doe I has never had the mental capacity to make medical decisions. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 378–79 (D.C. Cir. 2007) (explaining that, before th e D.C. Circuit, the parties ag reed that Plaintiffs all lacked11 sufficient mental capacity to a ppreciate the nature and implica tions of a medical decision); Doe ex rel. Tarlow v. District of Columbia , 920 F. Supp. 2d 112, 126 (D.D.C. 2013) (“No one suggests that Jane Does I and III were competent to consent to their abortions; indeed, their counsel conceded their incompetence on appeal.”). Less than a week after the Supe rior Court’s order, on October 1 6, 1984, Forest Haven Superintendent Reginald Wells s igned a form consenting to Jane Doe I’s abortion. See Pls.’ Ex. 35, ECF No. 330-2. In signing the consent form, Mr. Wells f ollowed his customary process: he spoke with the medical staff recommending the procedure; he did not speak with Jane Doe I, with her lawyer, or with a court. See Wells 2014 Dep. 23:14–26:1, 28:17–29:20, 54:12–20, Pls.’ Ex. 14, ECF No. 328-13; see also Pls.’ Ex. 22, ECF No. 331-3 (compiling similar consent forms Mr. Wells signed). Although the c onsent form implied that the a bortion was “required,” there is no evidence that the abortion was medically necessary for Jane Doe I. Compare Pls.’ Ex. 35, ECF No. 330-2 (“I hereby gi ve my consent for the required medical treatment or surgical operation . . . .” (emphasis added)), with Joint Status Report, ¶ 1, ECF No. 316 (indicating the parties’ agreement that “[t]here is no evidence that Jane Doe I ’s abortion in 1984 was medically necessary”). On October 19, 1984, Jane Doe I’s abortion was per formed at Howard University Hospital. See Pls.’ Ex. 25, ECF No. 328-23 (no ting Jane Doe I’s October 19, 1984 arrival and departure date in her r ecovery room record). In 2014, Jane Doe I testified tha t she did not request an abort ion in 1984, that she had not wanted the abortion, and that s he had wanted to have her baby. See Jane Doe I Dep. 7:12–20, 9:10, 10:6–11:10, 14:18–15:6, Pls.’ Ex. 24, ECF No. 328-22; see also Piechowski Decl. ¶ 16, Def.’s Ex. 12, ECF No. 326-12 (indica ting that she made similar representations in a 201412 psychological examination). 6 However, an examining psychol ogist reports that, in a psychological examination of Jane Doe I, Jane Doe I stated, wit hout prompting, “that she did not know she had had the [1984] abortion[] until her attorney found this information in her records and told her about it approximate ly ten years ago.” Piechowski Decl. ¶ 20.
C. Jane Doe II Jane Doe II was committed to the District’s care on May 13, 195 5. See Def.’s Ex. 2, ECF No. 326-2 (finding in a court decr ee that Jane Doe II was “a[n] [intellectually disabled] person who requires supervision, control, and care,” and committing he r “to the District Training School [Forest Haven] as a public pati ent”); Def.’s Ex. 27, ECF No. 32 6-27 (reporting May 13, 1955 as Jane Doe II’s date of admissi on in a 1981 Forest Haven medical assessment). She became a Forest Haven resident, and she r esided at Forest Haven for peri ods of time until at least the mid-1970s. See Does I Through III v. District of Columbia , 216 F.R.D. 5, 7 (D.D.C. 2003); Pls.’ Ex. 30, ¶ 6, ECF No. 329-4 (recounti ng Jane Doe II’s institutio nal history in the class action complaint filed in Evans v. Washington , 459 F. Supp. 483 (D.D.C. 1978)); First Am. Compl. ¶ 7, ECF No. 91; Answer to the Fir st Am. Compl. ¶ 7, ECF No. 90. Jan e Doe II’s commitment status was involuntary from 1976 (or earlier) until 2007. Pls.’ Ex. 1, ¶ 6, ECF No. 328-2. The record indicates that Jane D oe II’s mother, Theresa Felton, was Jane Doe II’s “mental retardation advocate.” See Def.’s Ex. 21, ¶ 7, ECF No. 326- 21 (reproducing Findings of Fact from a District of Columbi a Superior Court review hearing on Jane Doe II’s case); id. at

6 The District objects that Jane Doe I and Jane Doe III are not competent witnesses and argues that the Court should exc lude their testimony from consi deration. See Def.’s Mem. 21–33; Def.’s Opp’n Statement ¶ 21. Because the Court will not rely on Jane Doe I or on Jane Doe III’s testimony to decide the parties’ motions, the Court does not ad dress the merits of the District’s objections, aside from noting that the Federal Rules of Evidenc e presume that “[e]very person is competent to be a witness.” Fed. R. Evid. 601.13 3070 (noting that Jane Doe II’s mother was Jane Doe II’s “appoi nted advocate by the Court”);
see also Def.’s Ex. 20, ECF No. 326-20 (showing that, in correspondence on Jane Doe II’s behalf, Ms. Felton typed “Mother /Advocate” below her signature) . According to her brother, Duery Felton, Jr., Jane Doe II’s family regularly visited Jane Doe II during her time at Forest Haven and afterward. Felt on Dep. 9:22–11:2, Pls.’ Ex. 29, ECF N o. 329-3. Mr. Felton also recalls that Ms. Felt on, in particular, regul arly communicated with the District and its staff about
Jane Doe II’s care. See id. at 11:3–12:1, 21:15–24:8; see also Def.’s Ex. 27, at 4150, ECF No. 326-27 (reporting that “Mrs. The resa Felton (mother) is ver y actively involved with frequent visits”). The record refers to several medical procedures Jane Doe II und erwent while in the District’s care. First, Mr. Fe lton recalls that, at some point between 1979 and 1983, the District authorized a tooth extraction for Jane Doe II without consultin g Jane Doe II’s family. See Felton Dep. 22:13–24:2. Second, in 1987, MRDDA’s Acting Administrator conse nted on Jane Doe II’s behalf to an “esophago-gastro- duodenoscopy under general anesth esia.” See Def.’s Ex. 14, ECF No. 326-14. Third, on March 3, 1994, Cli fford Hubbard was MRDDA ’s Acting Administrator, and he signed a consent form on Jane Doe II’s behalf for the ey e surgery that is the focus of Jane Doe II’s claims. See Def.’s Ex. 17, ECF No. 326-17; Second Am. Compl. ¶¶ 47–49, ECF No. 219. The surgery intended to corr ect Jane Doe II’s exotropia, w hich is a condition in which one eye deviates from the other. See Def.’s Ex. 18, at 1, ECF No. 326-18 (noting Jane Doe II’s diagnosis); Hermann M. Burian, Strabismus , 60 Am. J. Nursing 653, 654 (1960) (“If the nonfixating eye is turned temp leward, the patient has . . . exo tropia.”). The eye surgery was performed the next day, on March 4, 1994. See Def.’s Ex. 18 (reproducing t he operative report).14 According to the hospital records , Ms. Felton was present for t he surgery, spoke with the operating surgeon, and accompanied Jane Doe II when she was dis charged. See Def.’s Ex. 19, ECF No. 326-19 (reproducing the r ecovery room nurses’ report); Pls.’ Statement ¶ 23. Mr. Felton claims nonetheless that Ms. Felton did not know abou t the surgery beforehand, because Ms. Felton did not inform Jane Doe II’s family about th e surgery before it happened, which was her typical pract ice. Felton Dep. 31:3–32:1, 57:2–58: 7, 60:18–61:5, 62:13–17, Pls.’ Ex. 29, ECF No. 329-3. He also recalls that Ms. Felton was upse t after the surgery and felt that Jane Doe II should not have had the surgery. Id. at 30:11–31:2, 58:10–59:3, 61:6–15. After Jane Doe II’s eye surgery, Ms. Felton wrote a letter, dat ed March 29, 1994, to the organization providing services to Jane Doe II. See Def.’s Ex. 20, ECF No. 326-20. In the letter, Ms. Felton acknowledged that she wa s present for the surgery an d lodged complaints about Jane Doe II’s post-operative care at the facility where Jane Doe II lived. See id. At a District of Columbia Superior Court r eview hearing on July 27, 1994, the Su perior Court noted Jane Doe II’s successful March 4, 1994 eye surgery. Def.’s Ex. 21, ¶ 5, ECF No. 326-21. 7 Fourth, in November 1994, Mr. H ubbard consented on Jane Doe II’ s behalf to a “cystoscopy, [a] bilate ral retrograde pyel ogram and [an] examin ation performed under anesthesia.” See Def.’s Ex. 15, ECF No. 326-15. The D istrict has no record of a n attempt to

7 A handwritten “Summary Report of Court Hearing” indicates that Ms. Felton’s “only concern” at the hearing was whet her she had the right to review Jane Doe II’s medical records. See Def.’s Ex. 21, at 3070, ECF No. 326-21. Because the Court does not rely on this evidence in its disposition of the parties’ m otions for summary judgment, t he Court will not address the merits of Plaintiffs’ hearsay objec tion to this piece of eviden ce. See Statement of Disputed Material Facts ¶ 29, ECF No. 337-20 [ hereinafter Pls.’ Opp’n St atement] (raising their hearsay objection); infra Part V.A.2.a.iii (relying on Ms. Felton’s March 29, 1994 lette r, not the Superior Court summary report, to find a ge nuine dispute of material fac t on the issue of whether Ms. Felton consented to Jane Doe II’s eye surgery).15 contact Jane Doe II’s family be fore Mr. Hubbard signed the cons ent form. Exton Dep. 41:2–42:9, 46:19–47:21, Pls.’ Ex. 3, ECF No. 328-4. 8 Fifth, on January 17, 1996, Francis Bowie had become MRDDA’s Ac ting Administrator, and she consented on Jane Doe II’s behalf to a “[p]elvic exam w ith pap smear under anesthesia.”
See Def.’s Ex. 16, ECF No. 326-16. As with the November 1994 medic al procedure, the District has no record of an attempt to contact Jane Doe II’s family bef ore Ms. Bowie signed the consent form. See Exton Dep. 53:11–54:17, Pls.’ Ex. 3, ECF No. 328-4. For all these procedures, no r ecord evidence exists of any cons ent forms that Ms. Felton signed on Jane Doe II’s behalf. Def.’s Statement ¶ 30 (citing t o Mr. Felton’s deposition transcript, in which Mr. Felt on could not reca ll seeing any con sent forms Ms. Felton signed); Statement of Disputed Mater ial Facts ¶ 30, ECF No. 337-20 [here inafter Pls.’ Opp’n Statement]. 9

8 The parties disagree about the extent to which testimony offer ed by the District’s witnesses, designated to test ify on the District’s behalf under Federal Rule of Civil Procedure 30(b)(6), may bind the District. See Def.’s Mem. P. & A. Opp’n P ls.’ Mot. Partial Summ. J. 17–19, ECF No. 335 [hereinafter Def. ’s Opp’n] (discussing witne sses Lataunja Beckwith and Robin Exton); Pls.’ Reply Supp. M ot. Partial Summ. J. 20–22, EC F No. 342 [hereinafter Pls.’ Reply] (same). In this opini on, the Court cites to Robin Exton’ s testimony to support facts only when the District does not cont end that her testimony is inappr opriate evidence. See Pls.’ Statement ¶¶ 46, 49; Def.’s Opp’n Statement ¶¶ 46, 49 (omitting any objection arguing that Ms. Exton’s testimony is inappropriate evidence for whether the Dis trict attempted to contact Jane Doe II’s family about particular medical procedures); see also Def.’s Opp’n 18 (explaining that Ms. Exton was designated to te stify on the steps taken by the D istrict when it made its decision to consent to Jane Doe II’s t eeth extractions, cystoscopy, bila teral retrograde pyelogram, and pap smear). The Court does not cite t o Lataunja Beckwith’s testimon y at all. The Court therefore need not address the merits of t he parties’ dispute on this iss ue. 9 Jane Doe II’s claims in Plainti ffs’ complaint principally rela te to Jane Doe II’s 1994 eye surgery. See Second Am. Compl. ¶¶ 47–49. Because Plaintiffs have not moved to amend their complaint to add Jane Doe II’s ot her medical procedures as addi tional instances in which the District violated Jane Doe II’s rights, the Court considers the evidence of the other medical procedures solely as factual ev idence that could support or ref ute Jane Doe II’s claims with respect to her eye surgery.16 Jane Doe II died on Januar y 15, 2007. Suggestion of Death of Ja ne Doe II, ECF No. 163. Mr. Felton, as the personal repre sentative for her estate, was substituted for Jane Doe II as a plaintiff in this case. See Consent Motion for Substitution of Parties 2, ECF No. 165 (req uesting Mr. Felton’s substitution); A pril 23, 2008 Minute Order (granti ng the motion).
D. Jane Doe III Jane Doe III was committed to Forest Haven and to the District’ s care on May 24, 1967, when she was ten years old. See Def.’s Ex. 3, ECF No. 326-3 (findi ng in a court decree that Ja ne Doe III was “a[n] [intellectuall y disabled] person who requires supervision, control, and care,” and committing her “to the District Training School [Forest Hav en] as a public patient”); Def.’s Ex. 22, at 2, ECF No. 326-22 (noting Jane Doe III’s admission d ate and age of admission in a Forest Haven medical evaluation). 10 Jane Doe III resided at Forest Haven until at least 1978. See Does I Through III v. District of Columbia , 216 F.R.D. 5, 7 (D.D.C. 2003); First Am. Compl. ¶ 7, ECF No. 91; Answer to the First Am. Compl. ¶ 7, ECF No. 90

. A Forest Haven medical eva luation, dated June 19, 1981, indicat es that Jane Doe III had an abortion “in 9-79.” See Def.’s Ex. 22, at 3, ECF No. 326-22 (st ating that a “[u]terine aspiration [was] performed in 9- 79 at approximately 8 weeks’ ge station with no c omplication or aftereffects”). The medical eva luation also reported that Jane Doe III was “refusing to take contraceptive pills” and “wishe[d ] to become pregnant,” and tha t Jane Doe III “[n]eed[ed] counseling regarding [the] ina dvisability of pregnancy.” See Def.’s Ex. 22, at 1–3, ECF

10 As with Jane Doe I, the Distr ict alleges, w ithout citation, th at Jane Doe III was involuntarily committed at the time of the elective abortion up on which she sues, but that her commitment status later became voluntary. See Def.’s Mem. 4, ECF No. 326. Some record evidence does indicate that Jane Doe III was “[i]nstitutionaliz ed at Forest Haven in Laurel, Maryland for 20 years” and “re leased in 1988.” Def.’s Ex. 25, a t 1592, 1593, 1595, ECF No. 326-25.17 No. 326-22. Because the evaluation also refers to an episode of abdominal pain as occurring in 1978 and before the “subsequent pr egnancy” and abortion, the da te recorded for Jane Doe III’s abortion (“9-79”) appears to mean September 1979. See id. However, a Distr ict of Columbia Superior Court order notes that Jane Doe III’s abortion occurre d “[i]n September of 1978.” See Def.’s Ex. 29, at 3, ECF No. 326-29. No record evidence indicates tha t Jane Doe III’s abortion, whet her it occurred in 1978 or 1979, was medically necessary. See Pls.’ Statement ¶ 36; Def.’ s Resp. Pls.’ Statement of Undisputed Material Facts ¶ 36, ECF No. 335-1 [hereinafter Def. ’s Opp’n Statement]. The District has no documents about who gave consent for Jane Doe I II’s abortion or about the process used to obtain consent for Jane Doe III’s abortion. See Def.’s Status Report ¶ 2, ECF No. 314; Lewis Dep. 55:12–56:8, Pls.’ Ex. 19, ECF No. 328-18. Later events provide additional details about Jane Doe III and about her abortion. Jane Doe III gave birth in 1982 to ason, who was put into foster ca re and later adopted. Def.’s Statement ¶ 32; Pls.’ Opp’n Statement ¶ 32; accord Pls.’ Ex. 48, at 1, 4, ECF No. 337-11. Jane Doe III later requested a sterili zation procedure, and the Dist rict of Columbia Superior Court granted her request on March 24, 1984. See Def.’s Ex. 29, at 1, 12, ECF No. 326-29. In granting Jane Doe III’s request for a tubal ligation, the Superior Courtnoted that her request arose from (1) her recognition “that she cannot care for more than one chi ld” and her wish to develop her skills to care for her existi ng son, and (2) “the severe proble ms she experienced with available, alternative methods of birth control.” Id. at 2, 11. After considering a n independent psychiatric report, witness testimony, and a discussion with Jane Doe III h erself, the Superior Court found by clear and convincing evidence th at Jane Doe III was “legally competent” to make an informed and voluntary decision to undergo a sterilizati on procedure, ha d “carefully considered all of the18 risks and benefits for several years,” and had “been consistentin her desire for t he tubal ligation for at least one year.” Id. at 1–2, 11–12. The Superior Court al so discussed Jane Doe III’ s 1978 (or 1979) abortion briefly, noting t hat “records and testimony indicate that [it] was a very traumatic experience for her , bringing on one of [Jane Doe III] ’s most disturbed emotional periods.” Id. at 3. Even though the Superior C ourt in 1984 found Jane Doe II I legally competent to decide whether to undergo a ste rilization proce dure, the par ties in this case have previously represented that Jane Doe III—like Jane Doe I—never had the men tal capacity to make health care decisions. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 378–79 (D.C. Cir. 2007); Doe ex rel. Tarlow v. District of Columbia , 920 F. Supp. 2d 112, 126 (D.D.C. 2013). A clinical neuropsychologist perf ormed a clinical evaluation of Jane Doe III in 2001. See Morote Decl. 1, Pls.’ Ex. 47, E CF No. 337-10. The psychologist reported that, during her meeting with Jane Doe III, Jane Doe III “consistently mentioned that having the abortion was not her choice.” Id. at 2. Likewise, in a 2005 deposition, Jane Doe III testified that she had wanted to have her baby and that the abortion was against her will. See Jane Doe III Dep. 10:7–17, 11:7–12:11, Pls.’ Ex. 26, ECF No. 32 8-24. And after an independ ent psychiatrist examined Jane Doe III, as well as her caretaker at the time, on July 15, 2005 , the psychiatrist r eported that Jane Doe III “spoke clearly and vividly about her anger and resentme nt about being forced to undergo that abortion” and “wanted t o have that baby.” Pls.’ Ex. 48, at2, 4, ECF No. 337-11. The psychiatrist also noted that, according to Jane Doe III’s caret aker, Jane Doe III “spoke often of the forced abortion and ha ving wanted to have the baby.” Id. at 5. Jane Doe III died on August 16, 200 6. Suggestion of Death of Ja ne Doe III, ECF No. 164. Linda Tarlow, as the person al representative for her e state, was substituted for Jane19 Doe III as a plaintiff in this case. See Consent Motion for Substitution of Parties 2, ECF No. 165 (requesting Ms. Tarlow’s substi tution); April 23, 2008 Minute O rder (granting the motion).

III. PROCEDURAL HISTORY Plaintiffs brought suit against th e District of Columbia in 200 1 and charged the District with constitutional viol ations under 42 U.S.C. § 1983. See Compl. ¶¶ 29–41, ECF No. 1. On behalf of themselves and a putat ive class of similarly situated individuals, Plaintiffs alleged that the District was not authorized to consent on Plaintiffs’ behal f to their medical procedures; the District “failed to ascertai n plaintiffs’ intent,” failed “ to have proper informed consent obtained on their behalf ,” and “did not provide plainti ffs with any legal process whatever”; and it was District policy to “unlaw fully authorize medical and sur gical procedures for [intellectually] disabled i ndividuals” in this manner. See id. ¶¶ 22–32. Plaintiffs contended that the District therefore vio lated their constitutionally protected substantive and pr ocedural due process rights. See id. ¶¶ 37–40. Plaintiffs sought damages as well as declarat ory and injunctive relief. See id. at 10–11. Plaintiffs’ initial allegations reached a judgment in 2005. See Does I Through III v. District of Columbia , 232 F.R.D. 18, 34 (D.D.C. 2005), rev’d sub nom. Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376 (D.C. Cir. 2007). After c ertifying a plaintiff c lass of “[a]ll persons with [intellectual] di sabilities who receive, will rece ive, or have in the past received, habilitation services from the District of Columbia, and for wh om District of Columbia officials have consented to or will consen t to any elective surgical proc edure since 1970,” this Court granted Plaintiffs’ motion for pa rtial summary judgment and enj oined the District from consenting to elective surgical pr ocedures for MRDDA consumers under its policy at the time.
See id. at 30–34. The Court hel d that, because the District’s 2003 med ical consent policy20 neglected to require subjective inquiry into Plaintiffs’ wishes or values when the District signed medical consent forms on their be half, the policy violated Plai ntiffs’ due process rights. See id. at 33. The Court accordingly found summary judgment appropriate ag ainst the District on the issue of its liability. See id. On appeal, the D.C. Circuit reve rsed the Court’s decision and v acated the injunction. See
Doe ex rel. Tarlow , 489 F.3d at 384. The appellate court held that the District’s 2003 policy complied with District law and di d not violate Plaintiffs’ proc edural and substantive due process rights. See id. at 380–84. On appeal, the parties had represented that Plainti ffs had “always lacked ‘sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner.’” Id. at 379 (quoting D.C. Code § 21-2202( 5)). The parties agreed onthis point, even though some evidence, no w available, calls into que stion the notion that Jane Doe I and Jane Doe III have always lacked the capacity to make medica l decisions. See Def.’s Ex. 9, at ¶¶ 1–2, ECF No. 326-9 (finding, in an October 11, 1984 District of Columbia Superior Court order, that Jane Doe I was com petent “to decide . . . whether a bortion [was] in her be st interest”); Def.’s Ex. 29, at 11, ECF No. 326-29 (reproducing a District of Columbia Superior Court opinion, which found by clear and co nvincing evidence on March 24, 1984 that Jane Doe III was “legally competent” to make an informed and voluntary decision to undergo a sterilization procedure); see also Mem. P. & A. Supp. Pls.’ Mot. P artial Summ. J. 1, ECF No. 328 [hereinafter Pls.’ Mem.] (taking the position that Jane Doe I a nd Jane Doe III “possessed capacity to consent to surgery”). Relying on the parties’ mutual re presentations about Plaintiffs ’ lack of capacity to make medical decisions, the D.C. Circu it then concluded that, for Pl aintiffs’ procedural due process21 claims, “[c]onsideration of the wishes of patients who are not and have never been competent [to make medical decisions] is . . . not required by the Supreme Co urt’s procedural due process
cases.” Doe ex rel. Tarlow , 489 F.3d at 382. The court also found P laintiffs’ substantive due process claims meritless because Plaintiffs did not show “that consideration of the wishes of a never-competent patient is ‘deep ly rooted in this Nation’s hist ory and tradition’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if the asserted right were sacrificed.’” Id. at 383–84 (brackets omitted) (quoting Washington v. Glucksberg , 521 U.S. 702, 720–21 (1997)). But despite how conclusively the D.C. Circuit ru led against Pla intiffs, their claims did not disappear. On remand, the Court gr anted Plaintiffs leave to ame nd their complaint to “argue that the abortions pe rformed on Jane Does I and III w ere unauthorized because . . . only a court can properly consent to the performa nce of an abortion on an incompetent woman” and to “a llege that the District of Co lumbia had a policy or custom of authorizi ng abortions without such an order ,” to “maintain . . . that Jane Doe II’s surgery was performed und er an illegal policy or custom of failing to obtain c onsent from or ignoring the wis hes of family members and guardians,” and to “allege that all three surger ies at issue here were batterie s, and that they all violated the Mentally Retarded C itizens Constitutional Rights a nd Dignity Act of 1978.” Does I Through III v. District of Columbia , 815 F. Supp. 2d 208, 213–21 (D.D.C. 2011); see also Second Am. Compl. ¶¶ 13–78, ECF No. 219 (bringing substantive d ue process, procedural due process, battery, and statutory c laims on behalf of all three p laintiffs). Plaintiffs’ amended complaint sought damages, but not d eclaratory or injunctive rel ief. See Second Am. Compl. 15. In their altered form, Plaintiffs ’ claims survived a motion to dismiss and are still before the
Court. See Doe ex rel. Tarlow v. District of Columbia , 920 F. Supp. 2d 112, 127 (D.D.C. 2013).22 Plaintiffs have not filed a moti on for class certification, and so only Jane Doe I, Jane Doe II, and Jane Doe III’s individual claims are at issue. The parties now seek summary j udgment on the District’s liabili ty for Plaintiffs’ due process and battery claims. See Def.’s Mem. P. & A. Supp. Mot. Summ. J. 37, ECF No. 326 [hereinafter Def.’s Mem.]; Pls.’ Mem. 32. They also move for summary judgment on the District’s liabilit y for Plaintiffs’ claims brought under D.C. Code § 7-1305.14, which provides a statutory cause of action for ci vil rights deprivations based o n an individual’s intellectual disability. See D.C. Code § 7-1305.14(a) (“No pe rson shall be deprived of any civil right . . . solely by reason of . . . having re ceived services, voluntaril y or involuntarily, f or an intellectual disability.”); Def.’s Mem. 37; P ls.’ Mem. 1. And the District m oves for summary judgment on Plaintiffs’ claims brought under D.C. Code § 7-1305.13, which p rovides a statutory cause of action to compel the District t o provide any rights guaranteed to intellectually disabled individuals under the District’s Mentally Retarded Citizens Con stitutional Rights and Dignity Act of 1978. See D.C. Code § 7-1305.13(a) (“Any inter ested party shall have the right to initiate an action . . . to compel the rights afforded persons with inte llectual disabilities under [the Mentally Retarded Citizens Cons titutional Rights and Dignity Ac t of 1978].”); Def.’s Mem. 37.

IV. LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary judgment if “the movant shows th at there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ . P. 56(a). A “material” fact is one capable of affecting the substant ive outcome of the litigation. See Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris , 550 U.S. 372, 38023 (2007). The inquiry under Rule 56 is essentially “whether the e vidence presents a sufficient disagreement to require submi ssion to a jury or whether it is s o one-sided that one party must prevail as a matter of law.” Anderson , 477 U.S. at 251–52. The principal purpose of summar y judgment is to streamline liti gation by disposing of factually unsupported claims or defenses and determining whethe r there is a genuine need for trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 323–24 (1986). The movan t bears the initial burden of identifying portions of t he record that demonstrate t he absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex , 477 U.S. at 323. In response, the non-movant must point to specific facts in t he record that reveal a genuin e issue that is suitable for trial. See Fed. R. Civ. P. 56(c)(1); Celotex , 477 U.S. at 324. The non-movant may not rest upon mere allegations or denials but must instead present affirmative evi dence. Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987) (citing Anderson , 477 U.S. at 257). In considering a motion for summary judgment, a court must “esc hew making credibility determinations or weighing the evidence,” Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and i nferences must be analyzed in the light most favorable to the non-movant, see Anderson , 477 U.S. at 255. Nevertheless, con clusory assertions offered without any evidentiary support do not estab lish a genuine issue for tr ial. See Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999).

V. ANALYSIS
A. Due Process The Court first addresses Plaintiffs’ constitutional claims. Al leging substantive and procedural due process violati ons, Plaintiffs bring their const itutional claims under 42 U.S.C. § 1983. Second Am. Compl. ¶¶ 3, 21–33, 56–67.24 Section 1983 provides a remedy against any person who “under co lor of state law, deprives another of rights pr otected by the Constitution.” Collins v. City of Harker Heights , 503 U.S. 115, 120 (1992); see 42 U.S.C. § 1983. To hold a municipali ty like the District of C olumbia liable under § 1983, a plaintiff mu st show both a predicate vio lation of her constitutional rights and that the violati on resulted from a gove rnment policy or cus tom. See Warren v. District of
Columbia , 353 F.3d 36, 38 (D.C. Cir. 2004); see also Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690–95 (1978) (emphasizing that “it is when execution of a government’s policy or custom . . . inflicts the injury tha t the government as an enti ty is responsible under § 1983”). Thus, “proper analysis require s” a court “to separate two diffe rent issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiff’s harm w as caused by a constitutional violation, and (2) if so, whether the city is responsible for t hat violation.” Collins , 503 U.S. at 120. The Court performs this two-st ep analysis for Jane Doe I a nd Jane Doe III first. 1. Jane Doe I and Jane Doe III’s Abortion Claims
a. Predicate Due Process Violations The Fifth Amendment’s Due Proces s Clause declares that “[n]o pe rson shall . . . be deprived of . . . liberty . . . wit hout due process of law.” U. S. Const. amend. V. 11 This language grounds two types of due process claims actionable under § 1983 . First, through its “substantive component,” it “bars certain arbitrary, wrongful government act ions ‘regardless of the fairness of

11 Instead of the Fourteenth Amend ment’s Due Process Clause, the Fifth Amendment’s Due Process Clause applies in the District of Columbia, a polit ical entity created by the federal government. Bolling v. Sharpe , 347 U.S. 497, 499 (1954); Propert v. District of Columbia , 948 F.2d 1327, 1330 n.5 (D.C. Cir. 1991). Although courts typically analyzes due process violations under the Fourteenth Amendment’s Due Process Clause, “due proce ss protections under the Fifth and Fourteenth Amendments are the same.” English v. District of Columbia , 717 F.3d 968, 972 (D.C. Cir. 2013) (discussing pr ocedural due process); see also Butera v. District of Columbia , 235 F.3d 637, 645–46 & n.7 (D.C. Cir. 2001) (discussing substan tive due process).25 the procedures used to implement them.’” Zinermon v. Burch , 494 U.S. 113, 126 (1990) (quoting
Daniels v. Williams , 474 U.S. 327, 331 (1986)). Second, thr ough its “guarantee of fair procedure,” it bars state actor s from depriving an individual o f a constitutionally protected liberty interest without constituti onally adequate procedures. Id. Intellectually disabl ed individuals, like Plaintiffs here, retain both ki nds of due process protections. See generally City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 447 (1985) (“[T]he men tally retarded, like othe rs, have and retain their substantive constitutional rights in addition to t he right to be treat ed equally by the law.”). Plaintiffs claim that the Distri ct violated Jane Doe I and Jane Doe III’s substantive and procedural due process rights by authorizing Jane Doe I and Jan e Doe III’s abortions. See Second Am. Compl. ¶ 63 (alleging that the District violated Jane Doe I and Jane Doe III’s substantive due process rights); id. ¶ 64 (alleging that the District violated Jane Doe I and Jane Doe III’s proceduraldue process rights). Because th e two types of due process clai ms are analytically distinct, the Court anal yzes them separately. Compare, e.g. , Zinermon , 494 U.S. at 127–28 (explaining analytical principl es governing procedural due proc ess claims), with Obergefell v. Hodges , 135 S. Ct. 2584, 2597–98 (2015) (same, for substantive due pr ocess claims); Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 278–79 (1990) (also disc ussing substantive due process). i. Liberty Interest As an initial step for both substa ntive and proced ural due proc ess claims, however, plaintiffs must allege that the defendant deprived them of a co nstitutionally cogn izable liberty or property interest. See Washington v. Glucksberg , 521 U.S. 702, 720–22 (1997) (explaining that the Supreme Court’s “establis hed method of substantive-due-proc ess analysis” creates a26 “threshold requirement . . . that a challenged state action imp licate a fundamental right”); see Roberts v. United States , 741 F.3d 152, 161 (D.C. Cir. 2014) (expl aining that plaintiff s must also allege that the defendant depriv ed them of a cognizable libertyor property interest for procedural due process claims, because pro cedural due process exists “to p rotect a substantive interest to which the individual has a legitimate claim of entitlement” (qu oting Olim v. Wakinekona , 461 U.S. 238, 250 (1983))). 12 The Supreme Court has recognize d “a general liberty interest i n refusing medical treatment.” Cruzan , 497 U.S. at 278 (citing Vitek v. Jones , 445 U.S. 480, 494 (1980); and Parham v. J.R. , 442 U.S. 584, 600 (1979)). This libert y interest includes, fo r instance, the “interest in avoi ding the unwanted a dministration of antipsychotic drugs.” Id. (quoting Washington v. Harper , 494 U.S. 210, 221–22 (1990)). Here, Jane Doe I and Jane Doe III ’s due process claims center o n their allegedly forced abortions. See Second Am. Compl. ¶¶ 13–33. The part ies agree that Jane Doe I and Jane Doe III’s interests in avoiding those abortions are constitutio nally cognizable under the Due Process Clause. See Def.’s Mem. 15 (“A personal d ecision relating to procreation o r contraception is a protected lib erty interest.”); Pls.’ Mem. 5 (“The liberty interest in the right to refuse unwanted medical treatment is . . . recognized by federa l law.”). The Court readily concurs. After all, a forced abor tion is more intrusive than “a voiding the unwanted

12 To establish a substantive due pr ocess violation, plaintiffs’ alleged liberty or property interest must also meet a higher standard: it must be “‘deeply rooted in this Natio n’s history and tradition,’ and ‘implic it in the concept of ordered liberty,’ s uch that ‘neither liberty nor justice would exist if [it was] sacrificed.’” Washington v. Glucksberg , 521 U.S. 702, 720–21 (1997) (citations omitted) (quoting Moore v. City of E. Cleveland , 431 U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut , 302 U.S. 319, 325, 326 (1937)). As discussed below, the Court finds that Plaintiffs merit summa ry judgment on Jane Doe I and Jane Doe II’s procedural due process claims, so the C ourt does not discuss Jane Doe I and Jane Doe II’s substantive due process claims. See infra note 18. The Court likewise will not here discuss whether Jane Doe I and Jane Doe III’s alleged libe rty interest meets the higher standard required for substan tive due process violations.27 administration of antipsychotic d rugs,” which the Supreme Court found to be a liberty interest protected under the Due Process Clause. Harper , 494 U.S. at 221–22; see also Pls.’ Reply Supp. Mot. Partial Summ. J. 5, ECF No. 34 2 [hereinafter Pls.’ Reply] (contending that Harper involved “less substantial bodily intrusions”). See generally Youngberg v. Romeo , 457 U.S. 307, 313–14 n.14 (1982) (characterizing “surgical intervention” as a “sever e” intrusion on individual dignity). The Court next analyzes, briefly, w hether the District deprivedJane Doe I and Jane Doe III of their liberty interest i n avoiding a forced abortion. See Roberts v. United States , 741 F.3d 152, 220 (D.C. Cir. 2014) (“[T]he plain tiff must show the Government deprived her of a ‘liberty or property interest’ . . . .” (emphasis added) (quoting Ky. Dep’t of Corr. v. Thompson , 490 U.S. 454, 460 (1989))). ii. Liberty Interest Deprivation The parties do not dispute whether Jane Doe I and Jane Doe III’ s abortions occurred, and evidence in the record repeatedl y confirms that the abortions d id occur. See Pls.’ Ex. 25, ECF No. 328-23 (reproducing medical records documenting Jane Doe I’ s abortion); Def.’s Ex. 35, ¶¶ 7–8, ECF No. 340-1 (recounting Jan e Doe I’s 1984 abortion ina petition that th e District filed in the District of Col umbia Superior Court); see also Def.’s Ex. 22, at 3, ECF No. 326-22 (noting that Jane Doe III had an abortion in “9-79,” or September 1979) ; Def.’s Ex. 29, at 3, ECF No. 326-29 (noting that Jane Doe III had an abortion in Septemb er 1978). The District does, however, impl y that Jane Doe I and Jane Doe III might have themselves requested the abortions they underwent. See Def.’s Mem. 21–22 (arguing that “Jane Doe I requested the abortion”); id. at 25 (“There is . . . no corroborat ing evidence that the Dist rict forced Jane Doe III to have an abortion against her will.” (emp hases omitted)). But that theory of the facts cannot survive in t he face of one of the principles t hat has controlled this case ever since28 the D.C. Circuit’s 2007 decision: t he idea that Jane Doe I and Jane Doe III have always lacked the capacity to make medical decisions. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 379, 381 (D.C. Cir. 2007). If Jane D oe I and Jane Doe III lacked capacity to make medical decisions, then their abortions c ould not have f lowed from thei r own desires but must necessarily have originated from the Distri ct’s consent to the abortions onJane Doe I and Jane Doe III’s behalf. Given the clear record t hat the abortions occurred, andgiven the parties’ longstanding adherence to the idea that Jane Doe I and Jane Doe III lacked c apacity to make medical decisions, the Court finds that Jane Doe I and Jane Doe III did suffer a deprivation of their liberty interest in avoi ding a forced abortion. The Court acknowledges that some evidence, now available, suppo rts the District’s theory of the facts. See Def.’s Ex. 9, at ¶¶ 1–2, ECF No. 326-9 (finding Jane Doe I “co mpetent to decide . . . whether an abortion [wa s] in her best interest”); Def.’s Ex. 29, at 11, ECF No. 326-29 (finding Jane Doe III “legally com petent” to make an informed a nd voluntary decision to undergo a sterilization procedure) . But neither Plaintiffs nor the District explicitly ask this Court to revisit its previous decisi ons on this issue, which adopted the parties’ previous representations and the D.C. Circuit’s view of the matter. 13 Accordingly, the Court will not disturb the idea that Jane Doe I and Jane Doe II have a lways lacked the capacity to m ake medical decisions. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 379, 381 (D.C. Cir. 2007). That is the law

13 See, e.g. , Doe ex rel. Tarlow v. District of Columbia , 920 F. Supp. 2d 112, 126 (D.D.C. 2013) (“No one suggests that Jane Does I and III were competentto consent to their abortions; indeed, their counsel conceded t heir incompetence on appeal.”); Does I Through III v. District of Columbia , 593 F. Supp. 2d 115, 122 (D.D.C. 2009) (incorporating into th e Court’s analysis the fact that “Jane Doe I . . . [and] Jane Doe III . . . have never had the mental capacity to make health care decisions”); cf., e.g. , Def.’s Mem. 14–36 (declining to e xplicitly ask the Court to reconsider the issue); Mem. P. & A. Supp. Pls.’ Mot. Partial Su mm. J. 1–30, ECF No. 328 [hereinafter Pls.’ Mem.] (same).29 of the case, and the District is judicially estopped from argui ng otherwise. 14 The Court therefore proceeds to an analysis of whether the District provided consti tutionally adequate procedures before depriving Jane Doe I and Jane Doe III of their liberty i nterest in avoiding a forced abortion. iii. Procedural Due Process Principles The Court analyzes Jane Doe I and Jane Doe III’s due process cl aims under procedural due process principles. Alt hough claims relating to abortions o ften sound in substantive due
process, see, e.g. , Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 846–53 (1992) (plurality opinion); Roe v. Wade , 410 U.S. 113, 152–56 (1973), Jane Doe I and Jane Doe III’s principal constitutional arguments here sound in proc edural due process, not substantive due process. See Pls.’ Mem. 11–27 (arguing, after disc ussing the liberty intere st at stake, that “due process requi res a judicial hearing and applic ation of the clear and convincing standard” and that “Plaintiffs w ere denied proc edural due proce ss” (capitalization omitted)). And, given that this case involve s women who concededly have ne ver been competent to make medical decisions, see Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 379, 381 (D.C. Cir. 2007), Jane Doe I and Jane Doe III’s right to choose wheth er to have an abortion is not at issue in this case. Cf. Casey , 505 U.S. at 846 (recognizing “the right of the woman to choos e to have an abortion before viability”). After all, the D.C. Circui t’s opinion in this case foreclosed

14 See generally Crocker v. Piedmont Aviation, Inc. , 49 F.3d 735, 739 (D.C. Cir. 1995) (explaining that the “law-of-the -case doctrine” “refers to a fa mily of rules embodying the general concept that a court involved in l ater phases or a lawsuit shou ld not re-open questions decided (i.e., established as th e law of the case) by that court or a h igher one in earlier phases”); see also Abtew v. U.S. Dep’t of Homeland Sec. , 808 F.3d 895, 899–900 (D.C. Cir. 2015) (“[T]he rule of judicial estoppel ‘generally pr events a party from prevailing i n one phase of a case on an argument and then relying on a cont radictory argument to prevai l in another phase.’” (quoting New Hampshire v. Maine , 532 U.S. 742, 749 (2001))).30 any claim based on the District’s obligation to defer to Plaint iffs’ wishes, given the parties’ mutual representations about how Plaintiffs had always lacked t he capacity to make medical decisions. See Doe ex rel. Tarlow , 489 F.3d at 381–84 (“Consideration of the wishes of patients who are not and have never been c ompetent is . . not required by the Supreme Court’s procedural due process cases.”) . Thus, the question of women’s choice—so fundamental to the constitutional analysis in a t ypical abortion case—is not prese nt here. Instead, accepting that Jane Doe I and Jane Doe III have never been competent to make medical decisions, the Court focu ses its inquiry o n what proced ures were required to ensure that the decisions that the Distric t made on their behalf, including any decisions about abortions, were constitutional. To that end, a pr ocedural due process analysis is appropriate. See Washington v. Harper , 494 U.S. 210, 220 (1990) (“The proced ural [due process] issue concerns the minimum procedures required by the Constitution for determining that th e individual’s li berty interest . . . is outweighed in a particular insta nce.” (internal quotation ma rk omitted) (quoting Mills v. Rogers , 457 U.S. 291, 299 (1982))). Courts evaluate procedures’ ad equacy under the Due Process Clau se by weighing several factors: First, the private interest t hat will be affected by the offici al action; second, the risk of an erroneous deprivati on of such interest through the p rocedures used, and the probable value, if any, of additional or substitute procedu ral safeguards; and finally, the Government's interes t, including the function invo lved and the fiscal and administrative burdens that the additional or substitute pr ocedural requirement would entail. Zinermon v. Burch , 494 U.S. 113, 127 (1990) (quoting Mathews v. Eldridge , 424 U.S. 319, 335 (1976)). This analysis “is flexi ble and calls for such procedur al protections as the particular situation demands.” Mathews , 424 U.S. at 334 (internal quotation mark omitted) (quoting Morrissey v. Brewer , 408 U.S. 471, 481 (1972)). Put anothe r way, “[w]hat process i s31 constitutionally due cannot be divo rced from the nature of the ultimate decision that is being made.” Parham v. J.R. , 442 U.S. 584, 608 (1979). On multiple occasions, the Supreme Court has articulated proced ural due process principles that apply when the s tate seeks to forcibly administ er antipsychotic medication to individuals committed to the state’s care. See Sell v. United States , 539 U.S. 166, 177–85 (2003) (articulating principles govern ing situations in which the gove rnment seeks to “involuntarily to administer antipsychotic drugs t o a mentally ill defendant faci ng serious criminal charges in order to render that defendant competent to stand trial”); Riggins v. Nevada , 504 U.S. 127, 133–38 (1992) (same, but in the contex t of a record that “narro wly define[d] the issues” before the Supreme Court); Washington v. Harper , 494 U.S. 210, 228–36 (1990) (articu lating principles governing when the government may f orcibly medicate a mentally ill prisoner to mitigate his dangerousness). Given that an abo rtion is at least as intrusive as antipsychotic medication, see generally Youngberg v. Romeo , 457 U.S. 307, 313–14 n.14 (1982), the Court summarizes the procedures that the Constitution requires for forced administra tion of antipsychotic medication, as set forth by the Supreme Cour t. The Supreme Court’s antipsyc hotic medication cases and Jane Doe I and Jane Doe III’s constitu tional claims all address the constitutionally required procedures for administering medical treatment to a mentally di sabled individual. Procedures required for antipsychotic medi cation therefore establish a bas eline of constitutionally adequate procedures that the District s hould have provided to Jane Doe I and Jane Doe III before their abortions. In the Supreme Court’s antipsyc hotic medication cases, the Supr eme Court has balanced the private interest in “avoidi ng the unwanted administration o f antipsychotic drugs” with the government’s interests (1) in mai ntaining safety and (2) in ren dering a mentally ill defendant32 competent to stand trial. See Sell , 539 U.S. at 178 (noting individua ls’ “significant” liberty interest in “avoiding the unwante d administration of antipsycho tic drugs,” and summarizing how the Supreme Court in Harper balanced that interest with the government’s interest in medic ating an inmate who “is dangerous to hims elf or others” (internal quo tation marks omitted) (quoting Harper , 494 U.S. at 221)); id. at 179–83 (prescribing a similar but different analysis when t he government asserts an interest in rendering a mentally ill defe ndant competent to stand trial). For each of these two separate balanc ing inquiries, the Supreme Cou rt examined the strengths of the interests at stake and the circumstances presented before concl uding that particular procedures would be constitutionally sufficient to justify unwanted admini stration of antipsychotic medication. See id. at 178–83; see also United States v. Dillon , 738 F.3d 284, 290 (D.C. Cir. 2013) (distinguishing the Sell inquiry from the Harper inquiry).
In Washington v. Harper , the Supreme Court held tha t administering unwanted antipsychotic medication to treat a dangerous inmate is constitutionally permissible when (A) A psychiatrist determines that th e inmate “(1) suffers from a ‘ mental disorder’ and (2) is ‘gravel y disabled’ or poses a ‘likelihood of serious harm’ to himself, others, or their property”; (B) The government provides the inmate with a hearing before “a spe cial committee consisting of a psychiat rist, a psychologist, and the Associate Superintendent of the [Medical] Center, none of whom may be, at the time of the hearing, involved in the i nmate’s treatment or diagnosis ”; (C) The inmate receives twenty-four hours’ notice of the Medical Ce nter’s intent to convene that heari ng, during which time the governmen t may not medicate him; (D) The inmate receives “notice of the tentative diagnosis, the fac tual basis for the diagnosis, and why the [medi cal] staff believes medication is necessary”; (E) The inmate may attend, present evidence and witnesses, and cross-examine opposing witnesses at the hearing;33 (F) The inmate receives, at the hear ing, “the assistance of a lay a dviser who has not been involved in his cas e and who understands the psych iatric issues involved”; (G) The government keeps minutes of the hearing and provides a copy to the inmate; (H) A majority of the special comm ittee at the hearing determines “ that the inmate suffers from a mental d isorder and is gravely disabled o r dangerous,” provided that the ps ychiatrist is in the majority; (I) The inmate has the right to appeal the committee’s decision to the Medical Center’s Superintendent w ithin twenty-four hours; (J) The Superintendent decides the appeal within twenty-four hours after its receipt; (K) The inmate can seek judicial review of the committee’s decision in state court; and (L) A special committee “composed of a nontreating psychiatrist, a psychologist, and the [Medical] C enter’s Associate Superintende nt” reviews the inmate’s case period ically after the government beg ins administering involuntary medication. See Harper , 494 U.S. at 215–16 (discussing proce dures that the State of W ashington provided to the inmate Walter Harper); id. at 217 (reporting that the c ommittee convened to assess Mr. Harper’s case found that he “ was a danger to others as a re sult of a mental disease or disorder”); id. at 233 (finding Washington’s proc edures constitutionally adequ ate). Although the Supreme Court held in Harper that the government need not furnish a judicial decisionmaker, the Cour t emphasized the “independence of the decisionmaker” as a requirement for constitutionally a dequate procedures before the government administers unwanted antipsychotic medication. See id. at 231–33. And though a “clear, cogent, and convincing” standard of proof is unnecessary at the committee h earing, the Supreme Court emphasized the importance of the inmate’s “notice” of the adver sary hearing, “the right to be present” at the hearing, and the inmate’s “rightto present and cross-examine witnesses.” Id. at34 235. Likewise, though the government need not provide an attorn ey to advise the inmate, the Supreme Court noted with approva l the government’s “provision o f an independent lay adviser who understands the psychiatric issues involved.” Id. at 236. The Supreme Court later summarized its opinion in Harper as holding that, generally, “fo rcing antipsychotic drugs on a convicted prisoner is impermissi ble absent a finding of overrid ing justification and a determination of medical appropriateness.” Riggins v. Nevada , 504 U.S. 127, 135 (1992).
In Sell v. United States , the Supreme Court performe d a similar but different inquiry i n a case in which the government’s asse rted interest was not in mai ntaining safety because of a dangerous and mentally ill inmate, but instead in rendering a m entally ill criminal defendant competent to stand trial. See 539 U.S. 166, 177–83 (2003) (performing a procedural due proce ss inquiry into when the government m ay administer unwanted antips ychotic medication “solely for trial competence purposes,” and di stinguishing the analysis in Sell from the analysis in Harper ). The Supreme Court held that th e government may administer unwan ted antipsychotic medication to render a mentally ill defenda nt competent to stand trial for serious criminal charges under limited circumstances: the treatment must be “medically appropr iate,” “substantially unlikely to have side effects that may underm ine the fairness of the trial, ” and, “taking account of less intrusive alternatives, . . . nece ssary significantly to furthe r important governmental trial-related interests.” Id. at 179. The Supreme Court further artic ulated four key findings that a court must make to authorize the administration of unw anted antipsychotic medicati on for these purposes: “First, the court must find that important governmental interests are at stake” after considering whether the government accuses the individual “of a serious crime,” the possibility of civil commitmen t to restore the defendant’s competence, and the effect that commitment mi ght have on an eventual trial. “Second, the court must conclude t hat involuntary medication wi ll significantly further ” those important governmental interests, because the medicatio n will35 “likely . . . render the defendant competent to stand trial” an d is “unlikely to have side effects that will interfere significantly with the defenda nt’s ability to assist counsel in conducting a trial defense.” “Third, the court must conclude that involuntary medication is necessary to further those interests,” “mus t find that any alternative, less intrusive treatments are unlikely to achieve substant ially the same results,” and “must consider less intrusive means for administering the drugs, e.g. , a court order to the defendant backed up by the contempt power, before considering more intrus ive methods.” “Fourth, . . . the court must conc lude that administration of t he drugs is medically appropriate , i.e. , in the patient’s best medical i nterest in light of his medica l condition,” and may consider the “specific kinds of drugs at is sue,” as well other kinds of antipsychotic drugs and t heir respective side effects and success rates. Id. at 180–82 (emphases in original). Under Harper and Sell , therefore, the government must satisfy several key prerequisi tes before administering unwanted an tipsychotic medication to an in dividual in its custody. The government must identify an impor tant government interest, such as maintaining safety, or restoring a criminal defendant’s c ompetence so that he can stan d trial for a serious crime. See id. at 180; Riggins , 504 U.S. at 135 (explaining that, under Harper , the government must establish “a finding of overriding justificati on”). The government must f ind that the medication would further that interest, such as by reducing an individual’s dang erousness or by having a substantial likelihood of rendering a criminal defendant competent to stand trial. See Sell , 539 U.S. at 181; Harper , 494 U.S. at 236 (upholding Washingt on’s policy for administer ing unwanted antipsychotic medication as a means of “providing appropriate m edical treatment to reduce the danger than an inmate suffering fro m a serious mental disorder represents to himself and others”). The government must es tablish that the medication is in the individual’s best medical interest and that no le ss intrusive treatments would achieve su bstantially the same results. See
Sell , 539 U.S. at 181; Riggins , 504 U.S. at 135 (explaining that, under Harper , the government should demonstrate “that treatment with anti-psychotic medicati on was medically appropriate36 and, considering less intrusive a lternatives, essential for the sake of [the indivi dual’s] own safety or the safety of others”). And, t o ensure that administering th e medication is constitutional, the government should meet all these pr erequisites by means of appr opriate procedures, which should at least include procedures that provide t he individual with (1) advance notice of a hearing on these issues, (2) the right to be present at the hea ring, (3) the right to present and cross-examine witnesses, (4) a n advisor who understands the psy chiatric issues involved, and (5) an independent decisionmaker to make the ultimate determina tion about whether to administer unwanted antipsychotic medication. See Harper , 494 U.S. at 233–36.

iv. Procedures Provided to Jane Doe I and Jane Doe III Having described the baseline pro cedural requirements that the District should have provided to Jane Doe I and Jane Doe III in advance of their abo rtions, the Court now analyzes whether the District satisfie d those requirements. Because an abortion is at least as intrusive as antipsychotic medication, see generally Youngberg v. Romeo , 457 U.S. 307, 313–14 n.14 (1982), the Due Process Clause require d the District to provide Jane Do e I and Jane Doe III with at least the procedural protections they w ould have received if the Dist rict had sought to administer antipsychotic medication to them. The Court addresses each of t he prerequisites that the Court has derived from the Supreme Court’s antipsychotic medication c ases. See supra Part V.A.1.a.iii (discussing Sell v. United States , 539 U.S. 166 (2003); Riggins v. Nevada , 504 U.S. 127 (1992); and Washington v. Harper , 494 U.S. 210 (1990)). First, the District must iden tify an important government inter est or overriding government justification that Jane Doe I and Jane Doe III’s abo rtions served. See Sell , 539 U.S. at 180; Riggins , 504 U.S. at 135; see also United States v. Weston (Weston II) , 255 F.3d 873, 880 (D.C. Cir. 2001) (explaining that, t o “medicate” a criminal def endant, the government must37 prove that doing so “is necessary to accomplish an essential st ate policy”); United States v. Weston (Weston I) , 206 F.3d 9, 13 (D.C. Cir. 2000) (same ). But here, the Distric t has advanced no government interest, compelli ng or otherwise, to justify Jan e Doe I and Jane Doe III’s abortions. See, e.g. , Def.’s Mem. 20–22, 25–30 (arguing mer ely that a court hearing provided Jane Doe I with due process and t hat no competent evidence exis ts to show that Jane Doe III did not receive due process, without asserting any government inter est as a reason for the abortions); Def.’s Opp’n 6–8 (same); Def.’s Reply 4, 7–11 (same). Indeed, t he District has conceded that no evidence exists to show that Jane Doe I and Jane Doe III’s abor tions were medically necessary, and so any justification for their abortions would not be medic al. See Joint Status Report, ¶ 1, ECF No. 316 (indicating the partie s’ agreement that “[t]here is no evidence that Jane Doe I’s abortion in 1984 was medically nece ssary”); Pls.’ Statement ¶ 3 6 (“There is no evidence indicating that it was medical ly necessary to perform an aborti on on Jane Doe III in 1978 or 1979.”); Def.’s Opp’n Statement ¶ 36 (conceding the lack of evi dence of medical necessity for Jane Doe III’s abortion). Nor ha s the District made any attempt to argue that abortions were necessary for the benefit of t he public. The District thus has not established even the first procedural prerequisite to Jane Doe I and Jane Doe III’s aborti ons. Second, assuming that the District had identified an important government interest that Jane Doe I and Jane Doe III’s abortions served, the District wo uld have had to establish that the abortions actually served that interest. See Sell , 539 U.S. at 181; Harper , 494 U.S. at 236. Having identified no government interest that Jane Doe I and Jane Doe III’s abortions served, the District also has not shown that the a bortions actually served any government interest. Third, the District must show tha t the abortions were in Jane D oe I and Jane Doe III’s best medical interest and that no less intrusive treatments wou ld achieve substantially the same38 results. See Sell , 539 U.S. at 181; Riggins , 504 U.S. at 135; see also Weston II , 255 F.3d at 882–87 (engaging in an exhaustive analysis of possible “alterna tive means for the government to satisfy its essential policy). A s noted above, the District con cedes that no evidence exists to show that the abortions were medica lly necessary—thus implicitly als o conceding that no evidence exists to show that the abortions were in Jane Doe I and Jane D oe III’s best medical interest. See Joint Status Report, ¶ 1, ECF N o. 316; Pls.’ Statement ¶ 36; De f.’s Opp’n Statement ¶ 36. Furthermore, even if the District were to allege that the abort ions served the District’s interest in reducing “fiscal and admi nistrative burdens,” Zinermon v. Burch , 494 U.S. 113, 127 (1990) (quoting Mathews v. Eldridge , 424 U.S. 319, 335 (1976)), the record also lacks evidence showing that the District consider ed less intrusive alternative s and found them “unlikely to achieve substantially the same results,” Sell , 539 U.S. at 181. See generally, e.g. , Pls.’ Ex. 35, ECF No. 330-2 (reproducing the Distr ict’s consent form for Jane Doe I’s abortion, which has neither an analysis of why a “[p]r egnancy [t]ermination” was ap propriate nor an assessment of alternatives to a pregnancy ter mination). On this point, the re cord indicates that, despite the potential fiscal and administrat ive burdens on government resou rces, the District has accommodated a less intrusive alternative to abortion: in 1982, Jane Doe III gave birth to a child, who was then placed in foster care. See Def.’s Ex. 29, at 3, ECF No. 326-29 (recounting Jane Doe III’s relationship with her son in a District of Columbia S uperior Court opinion on Jane Doe III’s request for a sterili zation procedure). In light of t he record, therefore, the District has neither established that Jane Doe I and Jane Doe III’s abortion s were in their best medical interest nor esta blished that no less intr usive treatments coul d have served the District’s interest in authorizing the abortions.39 Fourth, even assuming that the District had made a preliminary showing of the first three prerequisites, the District must show that it satisfied those p rerequisites by means of constitutionally app ropriate procedures. See Harper , 494 U.S. at 228 (“[P]rocedural protections are necessary to ensure that the decision to medicate . . . is neither arbitrary nor erroneous . . . .”). To that end, the District should a t least show (1) that it prov ided to Jane Doe I and Jane Doe III with advance notice of hearings t o determine whether abortions were appropriate for them; (2) that it allowed Jane Doe I and Jane Doe III the right to be present at any hearings convened for that purpose; (3) that it allowed Jane Doe I and Jane Doe I II to present and cross-examine witnesses at those hearings; (4 ) that it provided Jane Doe I an d Jane Doe III with advisors who understood the issues involved at those hearings; and (5) that an independent decisionmaker, unaffected by “any institutional bi ases,” made the decision to proceed with their abortions. See
id. at 233–36. The record, however, does not ind icate that any “hearings” on J ane Doe I and Jane Doe III’s abortions ever occurre d. With respect to Jane Doe I, the record indicates that, when Forest Haven Superintendent Reg inald Wells consented to Jane Do e I’s abortion, he merely spoke with medical staff recomme nding the procedure; he did not speak with Jane Doe I, with her lawyer, or with a court. See Wells 2014 Dep. 23:14–26:1, 28:17–29:20, 54:12–20, Pls.’ Ex. 14, ECF No. 328-13; see also Pls.’ Ex. 35, ECF No. 330-2 (reproducing the consent form Mr. Wells signed for Jane Doe I’s abortion). And though the Distric t argues that “the District provided [Jane Doe I] with the f ull due-process protection of a court hearing, where she was represented by counsel,” Def.’s Mem. 21, that court hearing did not address the issues that are relevant to the procedural due pr ocess analysis h ere: whether t he District had an important government interest that justif ied Jane Doe I’s abortion, wheth er an abortion would serve that40 interest, whether the abortion w as in Jane Doe I’s best medical interest, and whether no less intrusive treatments would achie ve substantially the same resul ts. See Sell , 539 U.S. at 180 (discussing findings necessary t o justify the government’s “inv oluntary administration of drugs”); cf. Def.’s Ex. 9, at ¶¶ 1–2, ECF No. 326-9 (finding, in an October 11, 1984 District of Columbia Superior Court order, onl y that Jane Doe I was compete nt to make decisions about her pregnancy and a possible abortion). 15 Jane Doe I’s court hearing t hus did not provide Jane Doe I with the procedural due process ne cessary to justify the Distri ct’s decision to authorize her abortion. With respect to Jane Doe III, the District admittedly has no do cuments about who gave consent for Jane Doe III’s abortion or about the process used t o obtain consent for that abortion.
See Def.’s Status Report ¶ 1, E CF No. 314; Lewis Dep. 55:12–56:8, Pls.’ Ex. 19, ECF No. 328-18. But the District does not dispute that, during the time period in which Jane Doe III had her 1978 or 1979 abortion, a Di strict official would “sign consent forms for elective surgery without having been appointe d guardian and with out consulting w ith the person having surgery.” Does I Through III v. District of Columbia , No. 01-2398, 2006 WL 2864483, at *1 (D.D.C. Oct. 5, 2006); accord Def.’s Statement ¶¶ 5–6; Pls.’ Statement ¶¶ 4–6. On this record, the undisputed f acts require the Court to concl ude, as a matter of law, that no “hearing” on Jane Doe I and Jan e Doe III’s abortions occurre d. In the same vein, the undisputed facts require the Cour t to conclude, as a matter of law, (1) that Jane Doe I and Jane

15 As discussed earlier, the Cour t proceeds under the parties’ pr evious representation that Jane Doe I has always lacked capacity to make medical decisions

. See supra Part V.A.1.a.ii. Proceedings cited to show deference to Jane Doe I’s wishes do n ot, in these circumstances, have any relevance to the du e process analysis. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 382–84 (D.C. Cir. 2007) (“Consideration of the wishes of patients who are not and have never been competent i s . . . not required by the Supreme Court’s . . . due pro cess cases.”).41 Doe III never were afforded the right to be present at any proc eeding in which they, or a representative acting on their be half, could influence the Dist rict officials d eciding whether to authorize their abortions; (2) that they never were afforded th e right to present or cross-examine witnesses at a proceeding for that purpose; and (3) that they n ever received the benefit of an advisor to help them navigate any such proceedings. Given the s ignificant possibili ty that District officials like Mr. Wells were affected by “inst itutional biases ,” such as the desire to keep the Forest Haven population low or the desire to red uce medical cos ts and administrative burdens,

see Harper , 494 U.S. at 233, Jane Doe I and Jane Doe III likely did not r eceive an independent decisionmaker either. See Pls.’ Ex. 13, at 2, ECF No. 328-12 (re producing Mr. Wells’s re sume, which states that from May 1984 t hrough January 1986, Mr. Wells “reduced the resident census [at Forest Haven] by 30%,” “as mandated by court order”); Pls.’ Ex. 35, ECF No. 330-2 (showing that Mr. Wells authori zed Jane Doe I’s abortion on Oct ober 16, 1984); see also Def.’s Ex. 22, at 3, ECF No. 326-22 (noting , in the record from a 1981 medical evaluation of Jane Doe III, that Forest Haven official s recommended “counsel[]ing rega rding [the] inadvisability of pregnancy”). The Court acknowledges that, in Washington v. Harper , the Supreme Court did not specify the minimum procedures required under the Due Process C lause. See Harper , 494 U.S. at 228–36 (concluding merely that “[t] he Due Process Clause does r equire certain essential procedural protecti ons, all of which [we re] provided by the reg ulation” that the Supreme Court considered). Thus, the Supreme Court could possibly find antips ychotic medication procedures constitutional, even if they a re less elaborate than those Harper outlined. (The procedures at issue in Harper included an independent decisi onmaker, “notice, the right to b e present at an adversary hearing, . . . the right t o present and cross-examine witnesses,” and “an independent42 lay adviser who understands the ps ychiatric issues involved.” Id. at 233–36.) But, even so, the District must still provide some way for the Court to confirm t hat the District had an important government interest that justifie d Jane Doe I and Jane Doe III’ s abortions, that their abortions served that interest, that the a bortions were in Jane Doe I and Jane Doe III’s best medical interests, and that no less intru sive treatments would achieve substantially the same results. See
Sell , 539 U.S. at 180 (discussing findings necessary to justify the government’s “involuntary administration of drugs”). To that end, other courts have, in pre- Harper decisions, suggested tha t medical records could suffice, if the records a ddress the relevant individual’s history, his or her present condition, and the various treatments available. See United States v. Charters , 863 F.2d 302, 312–13 (4th Cir. 1988) (en banc) (“[T]h e basis for the decision should be supported by adequate documentation, not only because of normal professional requirem ents, but as a potential aid to judicial review.”); 16 Rennie v. Klein , 653 F.2d 836, 848 (3d Cir. 1981) (disc ussing the panoply of medical considerations that the due process decisionmaker shoul d consider) (en banc), vacated, 102 S. Ct. 3506 (1982) (remanding the case “for further conside ration in light of Youngberg v.
Romeo , 457 U.S. 307 . . . (1982)”). The Distr ict, however, has not p roduced any medical records

16 In another case, the Fourth Circuit suggested that Harper overruled its opinion in Charters , but a later opinion in that ca se vacated the previous one and explained that Harper “did not address[] what process might be required before state prison authorities may administer an antipsychotic drug i n an emergency circumstance,” which was the question at issue there. Hogan v. Carter , 85 F.3d 1113, 1116 (4th Cir. 1996) (en banc); see also Hogan v. Carter , No. 94-7037, 1995 WL 674574, at *4 (4th Cir. 1995) (“ Harper requires more than Charters . . . .”), vacated , 85 F.3d 1113 (4th Cir. 1996) (en banc ). In any event, because Charters addressed the administration of unw anted antipsychotic medicati on to render a criminal defendant competent to stand trial, see Charters , 863 F.2d at 304–05, the Supreme Court’s decision in Sell v. United States , 539 U.S. 166 (2003), supersedes the Fourth Circu it’s analysis in Charters . Furthermore, as discussed belo w, the District has not produce d even the medical records that Charters contemplated.43 that show a reasoned analysis of w hether to authorize Jane Doe I and Jane Doe III’s abortions. Cf. Def.’s Ex. 22, ECF No. 326-22 (reprodu cing the record of a med ical evaluation that post-dated Jane Doe III’s abor tion by two or three years, but n ot records that preceded Jane Doe III’s abortion); Pls.’ Ex. 25, ECF No. 328-23 (reproducing medical records from Jane Doe I’s abortion, but not medical rec ords that preceded the dec ision to authorize the abortion). Given that no evidence shows that Jane Doe I and Jane Doe III r eceived the procedural due process that they were due with respect to the District’s decis ion to authorize their abortions, the undisputed facts in this case req uire the Court to conclude, as a matter of law, that Jane Doe I and Jane Doe III never received any constitutionally adequate p rocedures before the District authorized their abortions. 17

17 The Court previously contempla ted two other means by which the District could prevail on Jane Doe I and Jane Doe III’s procedural due process claims, but the Court now determines that the District c annot prevail by those means on t he record presented. First, the Court previ ously observed that, under Youngberg v. Romeo , 457 U.S. 307 (1982), “the state may (sometimes and for some reasons) physica lly restrain” involuntarily committed individuals; in those situations, “the minimal proced ural protections to which an involuntary patient is entitle d before being restrained—the exe rcise of appropria te professional judgment, and nothing more—are constitutionally tolerable only because he has necessarily had the benefit of a prior due process proceeding.” Doe ex rel. Tarlow v. District of Columbia , 920 F.2d 112, 124 (D.D.C. 2013) (internal quotation mark omitted). Thus, constitutionally adequate procedures for Jane Doe I and Jan e Doe III’s abortions might in clude (1) previous constitutionally adequate due process proceedings that authoriz ed their commitment to the District’s care, and (2) the exe rcise of professional judgment when later authorizing their abortions. But, given the early sta ge of Plaintiffs’ amended cl aims at the time of the Court’s earlier opinion, the Court did not a ddress what “the exercise o f professional judgment” might entail. See id. at 120–21, 124–25. The Supreme Court’ s antipsychotic medicatio n cases do. See, e.g. , Washington v. Harper , 494 U.S. 210, 228–36 (1990) (holding tha t, though the state n eed not provide a judicial decisionma ker and could provide a medical pr ofessional as the decisionmaker, the state must still provide “procedural protections . . . to e nsure that the decision . . . is neither arbitrary nor erroneous”). As disc ussed above, the District lac ks evidence to s upport that its procedures met the requirement s outlined in the Supreme Court’s antipsychotic medication cases. Second, the Court previously noted that “the District could . . . prevail by showing . . . that Jane Does I and III in fact consented to their abortions.” Doe ex rel. Tarlow , 920 F. Supp. 2d at 126. But the Court also specifi cally foreclosed this theory because, at the time, “[n]o one44 In sum, on the evidence presente d, the Court must conclude, as a matter of law, that the District did not provide Jane Doe I and Jane Doe III with const itutionally adequate procedures before authorizing abortions on the ir behalf. The evidence reve als no government interest that justifies the abortions, no indica tion that abortions furthered any government interest, no analysis of whether the abortions were i n Jane Doe I and Jane Doe III’s best medical interests, and no consideration of whether less in trusive treatments would achiev e substantially the same results. And no evidence indicates that, whe n the District authorized Ja ne Doe I and Jane Doe III’s abortions, the District furnished Jane Doe I and Jane Doe III w ith an adversarial hearing before an independent decisionmaker, w hich the Constitution requires. No evidence exists even to show that the District made a reas oned decision based on medical con siderations. On this record, the Court must conclude, as a matter of law, that the District viol ated Jane Doe I and Jane Doe III’s constitutional rights and deni ed them procedural due process. 18

suggest[ed] that Jane Does I a nd III were competent to consent to their abortions” and “their counsel conceded their incompetence on appeal.” Id. (citing Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 378 (D.C. Cir. 2007)). On summary judgment, the District has not asked the Court to hold otherwise. See, e.g. , Def.’s Mem. 14–36. Even if it did, the doctrine of judicial estoppel would prevent the Court from granting that re quest. See Abtew v. U.S. Dep’t of Homeland Sec. , 808 F.3d 895, 899–900 (D.C. Cir. 2015) (“[ T]he rule of judici al estoppel ‘generally prevents a party f rom prevailing in one phase of a c ase on an argument and then relying on a contradictory argumen t to prevail in another phase .’” (quoting New Hampshire v. Maine , 532 U.S. 742, 749 (2001))). The Dist rict thus cannot prevail under a theory based on Jane Doe I and Jane Doe III’s consent.
18 Because the Court must conclude , as a matter of law, that the District denied Jane Doe I and Jane Doe III due process under the procedural compone nt of the Due Process Clause, the Court will not address the merits of Jane Doe I and Jane Do e III’s claims under the substantive component of the Due Process Clause. See Zinermon v. Burch , 494 U.S. 113, 125–26 (1990) (discussing the two componen ts as alternative ways in wh ich claims “may be brought against the State under the Due Process Clause”). For this reas on, the Court does not address the parties’ arguments, made under th e substantive component of the Due Process Clause, about whether the District ’s conduct “shocks the conscience,” whether the District s howed deliberate indifference, or whether the Dis trict exercised professional ju dgment. See, e.g. , Def.’s Mem. 18–21; Pls.’ Mem. 27–28. These considerations matter for substa ntive due process analysis, but not for the procedural due proce ss analysis that the Court disc ussed above. See generally Cty. of45 b. Municipal Policy or Custom Having established that the Court must conclude, as a matter of law, that the District denied Jane Doe I and Jane Doe III procedural due process, the Court now addresses whether genuine disputes of material fact exist with respect to whether a District policy or custom caused those constitutional violati ons. To hold a municipality liable under 42 U.S.C. § 1983 for the constitutionally obj ectionable actions of its employees, a plai ntiff must show not only a predicate constitutional violation, but a lso how that municipality’s poli cy or custom was the “moving force” behind a constitutional violation. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694–95 (1978); Baker v. District of Columbia , 326 F.3d 1302, 1306 (D.C. Cir. 2003). The D.C. Circuit has explained that [t]here are a number of ways i n which a “policy” can be set by a municipality to cause it to be liable under § 1983: [1] the explicit setting of a policy by the government that violates the Cons titution; [2] t he action of a policy maker within the government; [3] the adoption through a knowing failure to a ct by a policy maker of actions by his subordina tes that are so consistent tha t they have become “custom”; or [4] the failure of the government to respond to a need . . . in such a manner as to show “deliberate indifference” to the risk that no t addressing the need will result in constitutional violations. Baker , 326 F.3d at 1306 (citations omitted). Here, the parties agree that the District had an official polic y in place when both Jane Doe I’s abortion and Jane Doe III’s abortion took place. Betwee n 1978 until 1990, the District’s policy for intellectually disabl ed persons in its care allowed District officials to “sign consent forms for elective surgery wit hout having been appointed guardi an and without consulting with

Sacramento v. Lewis , 523 U.S. 833, 845–47 (1998) (discussin g the “shocks the consc ience” test in the context of substantiv e due process analysis); Youngberg v. Romeo , 457 U.S. 307, 314, 321–25 (1982) (discussing the profes sional judgment standard inthe context of substantive due process analysis); Butera v. District of Columbia , 235 F.3d 637, 651–52 (D.C. Cir. 2001) (discussing how a government offici al’s “deliberate indifferenc e” may be conscience-shocking).46 the person having surgery.” Does I Through III v. District of Columbia , No. 01-2398, 2006 WL 2864483, at *1 (D.D.C. Oct. 5, 2006); accord Def.’s Statement ¶¶ 5–6; Pls.’ Statement ¶¶ 4–6. In 1990, the policy was put in writi ng, but remained largely uncha nged: although either an intellectually disabled person’s parent or the Forest Haven Sup erintendent could give informed consent for the person’s electiv e surgery, the Superintendent c ould also give consent alone, after discussing the matter with a medical officer. See Does I Through III , 2006 WL 2864483, at *1 (“In April 1990, [the District’s ] longstanding policy was put i n writing.”); accord Def.’s Statement ¶¶ 6–7; Pls.’ Statement ¶ 7; Pls.’ Opp’n Statement ¶¶ 7–8. 19

19 In its filings, the District re peatedly relies on the assumpti on that, because the District’s official medical consent polic ies were held constitutional on a ppeal, they cannot ground Plaintiffs’ alleged due p rocess violations now. See Def.’s Mem. 35; Def .’s Opp’n 10 n.6; Def.’s Reply 11–12 n.9. See generally Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 382–84 (D.C. Cir. 2007) (holding the D istrict’s policy, in its 2003 form, constitutional); Does I Through III v. District of Columbia , 593 F. Supp. 2d 115, 123–24 (D.D.C. 2009) (interpreting the D.C. Circuit’s opinion as holding, by implication, that pre -2003 near-identical policies were also constitu tional). But, in doing so, the District mi sunderstands the scope of the D.C. Circuit’s ruling in this case. The D.C. Circuit did not hol d that the District’s policie s were constitutional in every case in which the District applied them . Instead, the D.C. Circuit addr essed one particular challenge to the District’s policy. Faced with t he question of whether the D istrict’s policies were unconstitutional because they did not require the District “to consider an intellectually disabled patient’s wishes in deciding whe ther to authorize surgery,” the Circuit held that the alleged defect did not render the Distri ct’s policies unconstitutional under the Due Process Clause. See Doe ex rel. Tarlow , 489 F.3d at 382–84. The D.C. Circuit did not address th e distinct challenges to the District’s policies raised here: (1) the contention that the Constitution required the Dis trict to provide additional procedures to Jane Doe I and Jane Doe III before authorizing ab ortions on their behalf, and (2) the contention that the Constitution required the District to consult with or defer to Jane Doe II’s family members before authorizing an elective surgery on her behalf. See Does I Through III v. District of Columbia , 815 F. Supp. 2d 208, 218–20 (D.D.C. 2011) (discussing Plaintiffs’ new challenges to t he District’s policies); Second Am. Compl. ¶¶ 23, 57–58, ECF No. 219 (bringing those challenges). A ccordingly, given that Plaint iffs are asserting challenges that are different from those that t he D.C. Circuit addressed, the D istrict’s official policies can serve as a basis for Plaintiffs’ c onstitutional claims here.47 No evidence suggests that the D istrict diverged from its offici al policy when it authorized Jane Doe I and Jane Doe III’s abortions. In Jane Doe I’s case, a District consent form shows that Reginald Wells, the Forest Have n Superintendent at the time, co nsented to the abortion on her behalf. See Pls.’ Ex. 36, ECF No. 330-2. Mr. W ells testified that, in doin g so, he followed his customary process, which he beli eved to be in keeping with the District’s official medical consent policy. See Wells 2014 Dep. 23:14–26:1, 28:17–30:4, 54:12–20, Pls.’ Ex. 14 , ECF No. 328-13; see also Pls.’ Ex. 22, ECF No. 331-3 (compiling similar consent forms M r. Wells signed). Likewise, in Jane Doe III’s c ase, even though the record contai ns no contemporaneous consent form or medical records , nothing contradicts the notionthat the District simply followed its established policy. The record c reates a clear timeline of events with respect to Jane Doe III: in 1967, Jane Doe III was admitted to Forest Haven and committe d to the District’s care, see Def.’s Ex. 3, ECF No. 326-3; D ef.’s Ex. 22, ECF No. 326-22; her abortion occurred in 1978 or 1979, see Def.’s Ex. 22, at 3, ECF No. 326-22; Def.’s Ex. 29, at 3, ECF No. 326-29; and Jane Doe III was released from Forest Haven in 1988, Def.’s Ex. 25, at 1592, 1593, ECF No. 326-25. Given this timeline and the lac k of evidence suggesting otherwi se, the undisputed facts require the Court to conclude, as a matte r of law, that the District au thorized Jane Doe III’s abortion in keeping with the District’s policy, in place since at least 197 8, of “sign[ing] consent forms for elective surgery . . . w ithout consulting with the person havin g surgery.” Does I Through III v. District of Columbia , No. 01-2398, 2006 WL 2864483, at *1 (D.D.C. Oct. 5, 2006); accord Def.’s Statement ¶ 5; Pls.’ Statement ¶¶ 4–6. See generally Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987) (explaini ng that, on summary judgme nt, the non-movant must present affirmative evidence to show a genuine dispute of mater ial fact).48 On this record, the Court must c onclude, as a matter of law, th at the District adhered to its official policies when it authorized Jane Doe I and Jane Doe II I’s abortions in a manner that violated the Due Process Clause . The District’s official polici es were thus “the moving force of the constitutional violation[s].” Monell , 436 U.S. 694–95. * * * Because the undisputed facts require the Court to conclude as a matter of law (1) that the District denied Jane Doe I and Jane Doe III procedural due proc ess, and (2) that the District’s official policy caused th at due process violation, the Court will enter j udgment for Jane Doe I and Jane Doe III on their constitutional claims. See generally Warren v. District of Columbia , 353 F.3d 36, 38 (D.C. Cir. 2004) (indicating that, in order to prevail on § 1983 claim against a municipality, the plaintiff must establish “a violation of his rights under the Constitution or federal law” and “that the munici pality’s custom or policy caus ed the violation”). 2. Jane Doe II’s Claim for Ignoring or Overriding Family Wishe s The Court now turns to Jane Doe II’s constitutional claims. Pla intiffs claim that the District denied Jane Doe II due pr ocess when the District “did not obtain consent from and/or ignored the wishes of Jane Doe II’s family” when it consented t o her eye surgery. Second Am. Compl. ¶ 57. As the Court did for Jane Doe I and Jane Doe III’s constitutional claims, the Court first addresses “whether plaintiff’s harm was caused by a const itutional violation” before addressing “whether the city is responsible for that violation. ” Collins v. City of Harker Heights , 503 U.S. 115, 120 (1992).
a. Predicate Due Process Violation As explained before, the Due Pro cess Clause has two components: a substantive one, which “bars certain arbitrary, w rongful government actions rega rdless of the fairness of the49 procedures used to implement the m,” and a procedural one, whichbars state actors from depriving an individual of a constitutionally protected liberty interest withoutconstitutionally adequate procedures. Zinermon v. Burch , 494 U.S. 113, 125 (1990) (internal quotation mark omitted) (quoting Daniels v. Williams , 474 U.S. 327, 331 (1986)). Courts use different analytical principles when considering the two types of due process claims

. Compare, e.g. , id. at 127–28 (discussing procedural due process), with , e.g. , Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 278–79 (1990) (discussing substantiv e due process). But fo r both substantive and procedural due process claims, t he plaintiff must first allege that the defendant deprived her of a constitutionally cognizable l iberty or property interest. See generally, e.g. , Washington v. Glucksberg , 521 U.S. 702, 720–22 (1997); Roberts v. United States , 741 F.3d 152, 161 (D.C. Cir. 2014). Because the liberty interest required for substanti ve due process claims must meet a higher standard, see generally Glucksberg , 521 U.S. at 720–22, the Court discusses Jane Doe II’s alleged liberty inter est under substantiv e due process principl es first. 20

20 For Jane Doe I and Jane Doe III’s constitutional claims, the C ourt did not address substantive due process because Jane Doe I and Jane Doe II are entitled to summary judgment on procedural due process grounds—m aking any analysis of an altern ative theory of due process liability unnecessary. See supra note 18. But, for Jane Doe II’s due process claim, the Court d oes not find that Jane Doe II merits summary judgment at this time under either theory of due process liability. See infra Parts V.A.2.a.i–iv. The Court acco rdingly articulates the anal ysis under both theories below.50 i. Substantive Due Process Liberty Interest Substantive due process “norma lly imposes only very slight burd ens on the government to justify its actions,” and “ it imposes none at all in the abs ence of a liberty or property interest.” George Washington Univ. v. District of Columbia , 318 F.3d 203, 207 (D.C. Cir. 2003). Here, Jane Doe II’s asserted liberty i nterest is the right to have ha d her family members’ wishes considered by the District when t he District made medical decis ions on her behalf. See Second Am. Compl. ¶¶ 57, 63. 21 Plaintiffs argue that substantiv e due process protects this li berty interest from government infringement because it derives from the consti tutionally protected right to refuse medical treatment. See Pls.’ Mem. 5–6. To be sure, the Supreme Court ha s recognized that substantive d ue process protects the fundamental right t o bodily integrity. See Washington v. Glucksberg , 521 U.S. 702, 720 (1997) (citing Rochin v. California , 342 U.S. 165 (1952)). And it has assumed that substantive due process gives competent people a “constitutionally protected ri ght to refuse lif esaving hydration and nutrition.” Id. at 723 (internal quotation marks omitted) (quoting Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 279 (1990)). The Court agrees with Plaintiffs t hat, “if the Due Process Clause protects the right to refuse lifesaving medical treatment, it also p rotects the right to refuse surgery that is merely e lective.” Pls.’ Mem. 6.

21 Plaintiffs’ complaint is not w orded precisely, and it may also claim a constitutional violation of Jane Doe II’s right to have her wishes considered in the D istrict’s decisionmaking process. See, e.g. , Second Am. Compl. ¶ 65 (alleging t hat the District violated Jane Doe II’s right to accept or refuse medical treatment). This claim is, ho wever, foreclosed by the law of this case. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 382–83 (D.C. Cir. 2007) (holding that “[c]onsideration of the wishes of patients who ar e not and have never been competent” is not a cognizable lib erty interest under either pr ocedural or substantive due process precedents).51 But the Supreme Court has also made clear that, though “[a]n in competent person is not able to make an informed and vol untary choice to exercise a hyp othetical right to refuse treatment,” it “do[es] not think t he Due Process Clause require s the State to repose judgment on these matters with anyone but the patient herself.” Cruzan , 497 U.S. at 280, 286. A state may, of course, rely on family decisionmak ing when determining the corr ect course of action for an incompetent person. Id. at 286. But that permissive r ule is not a “constitutional requirement that the State recognize such decisionmaking.” Id. (emphasis added). The Supreme Court expressly declined to require States “to repose a right of ‘substituted j udgment’” with an incompetent person’s family members because “there is no automatic assuranc e that the view of close family members will necessarily be the s ame as the patient’s would hav e been had she been confronted with the prospect of her situation wh ile competent.” Id. Substantive due process thus did not require the District to consult or defer to Jane Doe II’s famil y members in determining the best course of action for Jane Doe II’s medical treatment—the substa ntive component of the Due Process Clause simply doe s not protect that right. Of course, in a case such as this one, there are still constitu tional limits on the District’s discretion. The Due Process Clause bars the District from actin g arbitrarily, “unrestrained by the established principles of privat e right and distributive justic e.” See Cty. of Sacramento v. Lewis , 523 U.S. 833, 845 (1998) (quoting Hurtado v. California , 110 U.S. 516, 527 (1884)). The District could not act on Jane Doe II’s medical care “without a ny reasonable justification in the service of a legitimate governmental objective.” Id. at 846. But though the District must always tether its actions to a legitimate governmental objective, subs tantive due process did not require it to provide Jane Doe II with t he right she has described ( i.e. , the right to have her family’s wishes considered and followed). See generally Glucksberg , 521 U.S. at 721 (explaining that, in52 substantive due process cases, the Supreme Court requires “a ca reful description of the asserted fundamental liberty interest”). Even if the substantive compone nt of the Due Process Clause doe s not protect Jane Doe II’s asserted liberty interest, however, Jane Doe II can st ill find refuge under another source of law. Indeed, the District’s Health-Care Decision Act of 1988 expressly protects the very interest that Plaintiffs describe. See D.C. Code § 21-2210 (1994) (prov iding that, if someone has been certified incapable to give i nformed consent for health ca re decisions and lacks a courtappointed guardian, conservator , or intellectual disability adv ocate, family members shall grant, refuse, or withdraw consent on her behalf). But because substan tive due process does not seek to supplant ordinary violations of local law, a violation of this Act is not necessarily a substantive due process violation. See generally Lewis , 523 U.S. at 848–49 (explaining that substantive due process liability “duplicates no t raditional category of common -law fault”). Aft er all, “it is a constitution we are expounding.” Id. at 846 (quoting Daniels v. Williams , 474 U.S. 327, 332 (1986)). Because Jane Doe II has not alleged a viable liberty interest u nder the substantive component of the Due Process Cl ause, the Court must enter summa ry judgment for the District on this issue. 22 But even though the District’s statutory procedures are not “ substantive liberty

22 This Court has assumed before t hat Plaintiffs have a liberty i nterest in bodily integrity, which could have been violated if the District consented on the ir behalf to elective surgeries “without first attempting to obtai n consent from, or after igno ring the wishes of, those persons authorized to make medical deci sions” on their behalf by the D. C. Code. Does I Through III v. District of Columbia , 593 F. Supp. 2d 115, 124–125 (D.D.C. 2009). But, in making th is assumption, the Court did not speci fy whether that potential li berty deprivation was cognizable under substantive due process pr inciples or procedural due proc ess principles. See id. at 124. The Court now clarifies that, though Jane Doe II’s constitutional c laim is viable as a proceduraldue process claim, it does not alle ge a cognizable liberty interest under the substantive component of the Due Process Clause.53 interests entitled to federal constitutional protection” under the Due Process Clause, Ellis v. District of Columbia , 84 F.3d 1413, 1421 n.6 (D.C. Cir. 1996) (emphasis added), lib erty interests for purposes of a proceduraldue process claim “may arise f rom an expectation or interest created by state laws or policies,” Atherton v. D.C. Office of the Mayor , 567 F.3d 672, 689 (D.C. Cir. 2009) (quoting Wilkinson v. Austin , 545 U.S. 209, 221 (2005)). The Court next analyzes whether Jane Doe II’s constitutional claim can proceed under proceduraldue process principles. ii. Procedural Due Process Liberty Interest The procedural due process inquir y, like the substantive due pr ocess inquiry, requires the plaintiff to first allege the de privation of a cognizable liber ty or property interest. See Roberts v.
United States , 741 F.3d 152, 161 (D.C. Cir. 2014) (explai ning that this firs t element is “essential,” because procedural due process exists “to protect a substantive interest to which the individual has a legitimate cl aim of entitlement” (quoting Olim v. Wakinekona , 461 U.S. 238, 250 (1983))). For a procedural due p rocess claim, liberty inter ests “may . . . be located in the Constitution itself”—as they are for Jane Doe I and Jane Doe II I—or they “may arise from an expectation or int erest created by state laws or policies.” Atherton v. D.C. Office of the Mayor , 567 F.3d 672, 689 (D.C. Cir. 2009) (internal quotation marks om itted) (quoting Wilkinson v
Austin , 545 U.S. 209, 221 (2005)). Thus, state laws can ground a cons titutionally protected liberty interest when they “c ontain substantive limitations on official discretion, embodied in mandatory statutory . . . language.” Id. (internal quotation mark omitted) (quoting Price v. Barry , 53 F.3d 369, 370 (D.C. Cir. 1995) (per curiam)). The D.C. Circu it has explained th at this kind of

Because Jane Doe II’s substantive due process claim thus cannot proceed, the Court declines to address the parties’ arguments about later steps inthe substantive due process analysis. See Def.’s Mem. 18–21, 23–25 (indicating t hat the Court should use the deliberate indifference and professional judgm ent tests to determine wheth er the District’s actions “shock the conscience”); Pls.’ Mem. 27 (urging a simpler analysis).54 “mandatory” statutory language typically finds expression in th e word “shall”; the word “may” typically signals disc retionary language. See Price , 53 F.3d at 299 (finding mandatory language in statutes declaring that paro le boards “shall” order inmates’ release in cert ain situations);
accord Ellis v. District of Columbia , 84 F.3d 1413, 1418 (D.C. Cir. 1996) (de clining to revise this interpretation). Against this legal backdrop, Jane Doe II’s constitutional claim is viable as a procedural due process claim. Because Jane Doe II’s asserted liberty inter est corresponds w ith her rights under a mandatory District statut e in effect at the time of the deprivation, procedural due process provides that interest wit h constitutional protection. Jane Doe II’s asserted liberty i nterest is the right to have he r family members’ wishes considered by the District when the District makes medical deci sions on her behalf. See Second Am. Compl. ¶¶ 57, 63. This right co rresponds with her rights un der the District’s Health-Care Decisions Act of 1988, which, at th e time of her eye surgery, c reated a clear right to substituted consent for people that lacked t he mental capacity to make a he alth-care decision: (a) In the absence of a durable power of attorney for health care a nd provided that the incapacity of the prin cipal has been certified in acco rdance with § 21-2204, the following individuals, in the order of priority set forth below, shall be authorized to gr ant, refuse or w ithdraw consenton behalf of the patient with respect to t he provision of any health-care service, treatment, or procedure: (1) A court-appointed guardian or cons ervator of the patient, if th e consent is within the scope of t he guardianship or conservators hip; (2) The spouse of the patient; (3) An adult child of the patient; (4) A parent of the patient; (5) An adult sibling of the patient;55 (5A) A religious superior of the patient, if the patient is a m ember of a religious order or a d iocesan priest; or (6) The nearest living rela tive of the patient. . . . (d) If no individual in a prior c lass is reasonably available, mentally capable and willing to act, responsibility for decisionmaking shall res t with the next reasonably available, mentally capable, and willing personon the priority list. D.C. Code § 21-2210 (1994) (reflect ing the statute as it was onMarch 4, 1994); Def.’s Ex. 18, ECF No. 326-18 (showing March 4, 1994 as the date of Jane Doe I I’s surgery). This District statute gave Jane Doe II an “expectation” that, i f she was incapable of giving informed consent to a medi cal procedure, the District wo uld consult her family members and would allow them to give or refuse informed consent on her behalf. See Atherton v. D.C. Office of the Mayor , 567 F.3d 672, 689 (D.C. Cir. 2009) (explaining that an expect ation created by state law can be a liberty i nterest that procedural due proc ess protects). 23 The evidence in the

23 From the parties’ arguments, t he Court infers that they agree that Jane Doe II was incapable of giving informed consen t to medical treatment, and therefore could expect the protections of D.C. Code § 21-2210 —notwithstanding the statute’ s preliminary requirement that persons eligible for its protecti ons must have their incapacitycertified under D.C. Code § 21-2204’s procedures. The District, for instance, notes that “there is no dispute tha t Jane Doe II has never been competent to make medical decisi ons for herself,” and proceeds to argue that it complied with the statute because “[t]he most natural and likely inference to be drawn from all the evidence is that Ms. Felton [Jane Doe II’s mo ther] consented to the eye sur gery.” Def.’s Reply Supp. Mot. Summ. J. 5–7, ECF No. 340 [herein after Def.’s Reply]; see also Def.’s Opp’n 7–8, ECF No. 335 (making the same argument). Plaintiffs’ complaint likewise focuses on whether the District consulted Jane Doe II’s family members before consenting to her eye surgery; it does no t allege that Jane Doe II was ever capable of giving informed c onsent to medical treatment. See Second Am. Compl. ¶¶ 46–49, 57; see also Pls.’ Opp’n Def.’s Mot. Sum m. J. 19, ECF No. 337 (focusing on the allegation that “the District authorized Jane Doe II’s surgery without obtaining consent or refusal from her lawful healthcare proxy ”). And now, after discovery, P laintiffs have produced no evidence indicating that Jane Doe II was capable of giving info rmed consent. In fact, the evidence shows that, because Jan e Doe II was nonverbal, she was likely never capable of giving56 record shows that Jane Doe II wa s “non-verbal” and “unable to a ddress her concerns”—and thereby unable to give informed c onsent to a medical procedure. Def.’s Ex. 20, at 3007, ECF No. 326-20; accord Felton Dep. 17:9–14, Pls.’ Ex. 29, ECF No. 329-3; see also Def.’s Reply Supp. Mot. Summ. J. 5–7, ECF No. 340 [ hereinafter Def.’s Reply] (“[T]here is no dispute that Jane Doe II has never been compe tent to make medical decisions for herself.”). Under the statute, therefore, Jane Doe II had an expectation that one of the enumerated individuals would provide substituted consent on her behalf. Because the District does not argue that Clifford Hubbard, the person who signed Jane Doe II’s consent form, was her court-appointed guardian or conservator, “responsibility for decisionmaking” would “rest with the next reasonably available, mentally capable , and willing person on the priority list.” D.C. Code § 21-2210(a)(1), (d) (1994); see Pls.’ Ex. 12, ECF No. 328-11 (show ing that Mr. Hubbard signed Jane Doe II’s consent form); Def.’s Mem. 23–25 ( declining to argue that Mr. H ubbard was Jane Doe II’s court-appointed guardian or cons ervator); Def.’s Mem. P. & A. O pp’n Pls.’ Mot. Partial Summ. J. 7–8, ECF No. 335 [hereinafter Def. ’s Opp’n] (same); Def.’s R eply 5–7 (same). And because no evidence exists that Jane D oe II had a spouse or an adult ch ild, the next person on the priority list would have been Jane Doe II’s parent. See D.C. Code § 21-2210(a)(1)–(4) (1994).

informed consent. See Def.’s Ex. 20, at 3007, ECF No. 326-20 (“[Jane Doe II] is non- verbal and unable to address her concerns .”); Felton Dep. 17:9–14, Pls.’ E x. 29, ECF No. 329-3. The Court will therefore assu me that D.C. Code § 21-2210 create d an expectation that its provisions would apply to Jane Do e II, even if Jane Doe II neve r received a formal certification under D.C. Code § 21-2204 that she was incapable of giving info rmed consent to medical treatment. Cf. Pls.’ Opp’n Def.’s Mot. Summ. J . 38 (arguing that the lack of formal certification is relevant, but in the context of whether the District had aut hority to consent, not in the procedural due process context). Jane Doe II’s 2002 probate ord er, which found her incapable of managing her own property and appo inted a conservator for her, is inapposite to this inquiry, because it does not make any determination about her capacity t o give informed consent to a medical procedure. See Pls.’ Reply Ex. A, ECF No. 126-2 ( reproducing a probate order for Jane Doe II, dated January 18, 2002).57 The statute thus indicated, in ma ndatory language, that Jane Do e II’s mother, Theresa Felton, would exercise responsibil ity for medical decisionmakin g on Jane Doe II’s behalf. See D.C. Code § 21-2210(a) (1994) (“[T]he following individuals, inthe order of priority set forth below, shall be authorized to grant, refus e or withdraw consent . . . .” (e mphasis added)); id. § 21-2210(d) (1994) (“If no individual in a prior class is reas onably available, mentally capable and willing to act, responsibi lity for decisionmaking shallrest with the next r easonably available, mentally capable, and willing pers on on the priority list.” (em phasis added)). Jane Doe II therefore had a constitutionally pr otected liberty interest in having her mother direct her medical treatment by making health c are decisions on her behalf. See Atherton , 567 F.3d at 689 (explaining that, when a state r egulation limits official discr etion in mandatory statutory language, it creates a constitutio nally protected liberty inter est under the procedural component of the Due Process Clause). If Pl aintiffs can show that the Dis trict deprived Jane Doe II of that liberty interest without providi ng her with appropriate procedu ral protections, then Jane Doe II can prevail on her procedur al due process claim. iii. Deprivation of Procedural Due Process Liberty Interest Before addressing whether Jane Do e II received adequate procedu ral protections, however, Plaintiffs must show tha t the District actually depriv ed Jane Doe II of the liberty interest. See Roberts v. United States , 741 F.3d 152, 220 (D.C. Cir. 2014) (“[ T]he plaintiff must show the Government deprived her of a ‘liberty or property i nterest’ . . . .” (emphasis add ed) (quoting Ky. Dep’t of Corr. v. Thompson , 490 U.S. 454, 460 (1989))). On this issue, a genuine dispute of material fact exists . The record includes evidence b oth for and against the notion that Jane Doe II’s mother, Ms. Fe lton, did indeed consent on Jane Do e II’s behalf to the eye surgery.58 As a preliminary matter, the Cour t addresses what words or cond uct might be necessary to show that Ms. Felton consente d to the eye surgery. As discus sed above, under the Health-Care Decisions Act at the time of Jane Doe II’s surgery, Jane Doe II had the right to have her mother “grant, refuse or withdraw consent” on her behalf. See D.C. Code § 21-2210(a) (1994); supra Part V.A.2.a.ii (discussing the statute and how it applied to J ane Doe II). The Health-Care Decisions Act did not include a definition for “consent.” See D.C. Code § 21-2210(b), (c) (1994) (explaining what the decisionmak er should consider and requirin g a witness for any decisions made, but without defining the mean s by which the decisionmaker would consent); id. § 21-2202 (1994) (providing definitions for the Health-Care Decisions Act , but without defining “consent”). Although Plaintiffs imp ly that the Court should int erpret “consent” by using the definition of “informed consent” specified elsewhere in the D.C . Code, that definition applies only to a different chapter of t he D.C. Code (Chapter 13 of Tit le 7), not to the Health-Care Decisions Act (which is codified in Chapter 22 of Title 21 of t he D.C. Code). See id. § 7-1301.03 (2016) (defining only terms “ used in this chapter,” i.e. , Chapter 13 of Title 7); id. § 7-1301.03(15) (requiring “informed consent” to be “given in w riting”); Pls.’ Reply 19 (citing D.C. Code § 7-1301.03(15)). The Cour t accordingly will not intr oduce Plaintiffs’ suggested “informed consent” definition into the Health-Care Decisions Ac t. See Nova Univ. v. Educ. Inst.
Licensure Comm’n , 483 A.2d 1172, 1179–80 (D.C. 1984) (disapproving of a statuto ry construction that contravenes “ the quite obvious fact that the statute does not c ontain the words [that a party] urges [t he court] to insert”). To analyze whether Ms. Felton consented to Jane Doe II’s eye su rgery, however, the Court must determine whether the Health-Care Decisions Act requ ired consent to be given in writing. If it did, the n given the lack of evidence of any writ ten consent that Ms. Felton gave for59 Jane Doe II’s eye surgery, the Court would have to conclude tha t Ms. Felton never consented to the eye surgery—and therefore tha t Jane Doe II was deprived of her liberty interest in having Ms. Felton give or withhold consent on Jane Doe II’s behalf. See Def.’s Statement ¶ 30 (“There is no evidence suggesting that [Ms. Felton] ever explicitly con sented . . . to any particular procedure proposed for Jane Doe II.”); Pls.’ Opp’n Statement ¶ 30 (raising no objection to the notion that no evidence exists of written consent that Ms. Felt on gave for Jane Doe II’s medical procedures). To determine the meaning of “cons ent” in the Health-Care Decisi on Act, the Court adheres to the “settled princip le of interpretation that, absen t other indication, [ the legislature] intends to incorporate the well-se ttled meaning of the common-l aw terms it uses.” Universal Health Servs., Inc. v. United States , No. 15-0007, 2016 WL 3317565, at *7 (U.S. June 16, 2016) (internal quotation mark omitted) (quoting Sekhar v. United States , 133 S. Ct. 2720, 2724 (2013)); see, e.g. , Tann v. United States , 127 A.3d 400, 441 (D.C. 2015) (applyi ng this principle in the criminal context); Berryman v. Thorne , 700 A.2d 181, 184 (D.C. 1997) (same, in the estate context); Lenkin ex rel. 14th & Eye Streets Assocs. v. Beckman , 575 A.2d 273, 276 (D.C. 1990) (same, in the property context). Bec ause the District of Columb ia Court of Appeals has, in the tort context, previously discusse d similar issues with respect to consent to medical procedures, the Court interprets “consent” in light of common law tort prin ciples. See Bonner v. Moran , 126 F.2d 121, 121–23 (D.C. 1941) (discussing c onsent in the context of “an action for damages for assault and battery” arising out of medical operations performe d on a child). Under those principles, consen t is a defense to any claim sound ing in tort law. See Woodfield v. Providence Hosp. , 779 A.2d 933, 937 (D.C. 2001) (“[T]he invasion of a person’s interest cannot be a tort wh en such person is willing to have t hat invasion take place and has60 legal capacity to cons ent to the invasion.” (internal quotationmarks omitted) (quoting 2 Fowler V. Harper et al., The Law of Torts § 5.17, at 138 (2d ed. 1986))). And, contrary to Plaintiffs’ suggestion, consent “may be man ifested by action or inaction an d need not be communicated to the actor.” Restatement (Second) of Torts § 892(1) (Am. Law Ins t. 1979); accord Boyrie v. E & G Prop. Servs. , 58 A.3d 475, 477–78 (D.C. 2013) (explai ning that consent to a n alleged trespass “can be express or implied”); Martin v. George Hyman Constr. Co. , 395 A.2d 63, 71 (D.C. 1978) (explaining that, to e stablish assumption of risk i n the negligen ce context, a defendant must prove that a plai ntiff “voluntarily consents to incur a risk,” though “[t]he consent may be express . . . or implied by con duct”). Thus, “[i]f words or conduct are reasonably understood by another to be intende d as consent, they constitut e apparent consent and are as effective as consent in fact.” R estatement (Second) of Torts § 892(2) (Am. Law Inst. 1979);
accord Faniel v. Chesapeake & Potomac Tel. Co. of Md. , 404 A.2d 147, 152–53 (D.C. 1979) (imputing implied consent onto the plaintiff because of her act ions). Here, therefore, Ms. Felton could have legally consented to Jane Doe II’s eye surgery eithe r through words (written or spoken) or through conduct. On revie w of the record, the Court finds that evidence exists both to support and to undermine the idea that Ms. Felton consented to Jane Doe II’s eye surgery. On the one hand, the parties agree that Ms. Felton was present for the surgery. See Def.’s Statement ¶ 23; Pls.’ Opp’n Statement ¶ 23; see also Def.’s Ex. 19, ECF No. 326-19 (indicating that Ms. Felton spoke with the operating surgeon on the day of the surgery); Def.’s Ex. 20, at 3006, ECF No. 326–20 (same). And when Ms. Felton wrote a letter complaining about Jane Doe II’s care after the surgery, she did not mention any objection to the decision to pr oceed with the surgery in the first place. See Def.’s Ex. 20, at 3006–07. From this evidence, a reasonable ju ry could infer that, at or before t he appointment for Jane Doe II’ s surgery, Ms. Felton consented—61 either through her words or thr ough her conduct—to the eye surg ery on Jane Doe II’s behalf. If that were the case, no deprivati on of Jane Doe II’s rights unde r D.C. Code § 21-2210 would have occurred. On the other hand, the record is cl ear that the District’s MRDD A Acting Administrator, Clifford Hubbard, signed a form giving consent to Jane Doe II’s surgery. See Pls.’ Ex. 12, ECF No. 328-11; see also Def.’s Statement ¶ 21; Pls.’ Statement ¶ 40. And Jane Doe II’s brother’s testimony recalls that Ms. Felton w as upset after the surgery and felt that it should not have occurred. See Felton Dep. 30:11–31:2, 58:10–59:3, 61:6–15, Pls.’ Ex. 29, ECF No. 329-3. His testimony also posits that Ms. Fel ton did not know about the su rgery beforehand, because she did not inform Jane Doe II’s famil y about the surgery before it hap pened, which was Ms. Felton’s typical practice. See id. at 31:3–32:1, 57:2–58:7, 60:18–61: 5, 62:13–17. From this evide nce, a reasonable jury could infer that the District did not give Ms. Felton an opportunity to make a decision on Jane Doe II’s behalf about the eye surgery, that Ms . Felton learned about Jane Doe II’s scheduled eye surgery only just before it occurred, an d that Ms. Felton was not aware of Jane Doe II’s legal right to have Ms. Felton “refuse or withdra w consent” to the surgery on Jane Doe II’s behalf. D.C. Code § 21-2210(a) (1994); see Pls.’ Opp’n Def.’s Mot. Summ. J. 6–7 (making this argument). If that w ere the case, the District dep rived Jane Doe II of her right under D.C. Code § 21-2210(a) to have her mo ther’s wishes for Jane Doe II’s medical treatment heeded. 24

24 If the jury accepts this version of the facts, any implied con sent derived from Ms. Felton’s presence at Jane D oe II’s surgery would not be eff ective. See Restatement (Second) of Torts § 892B(2) (Am. Law Inst . 1979) (“If the person consent ing . . . is induced to consent . . . by the other’s misrepresentati on, the consent is not effective for the unexpected invasion or harm.”).62 The Court cannot on summary judgmen t weigh the conflicting evid ence in Jane Doe II’s

case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). The Court accordingly cannot find that either party w ould necessarily prevail on Jane Doe II’s predicate procedural due process claim.

iv. Procedures Provided to Jane Doe II To address the District’s cont ention that “a mere violation of law does not give rise to a due process claim,” Def.’s Mem . 17 (internal quotation mark omi tted) (quoting Am. Fed’n of Gov’t Emps., Local 446 v. Nicholson , 475 F.3d 341, 353 (D.C. Cir. 2007)), the Court briefly addresses the legal principles that would govern the remainder of the procedural due process analysis. The Court’s preceding discussion addressed only the f irst element of a procedural due process claim: the requirement t hat the plaintiff establish tha t the government deprived the plaintiff “of a liberty or prope rty interest to which she had alegitimate claim of entitlement.”
Roberts v. United States , 741 F.3d 152, 161 (D.C. Cir. 2014) (in ternal quotation mark o mitted) (quoting Ky. Dep’t of Corr. v. Thompson , 90 U.S. 454, 460 (1989)). But, to prevail on a procedural due process claim, t he plaintiff must also show that “the procedures attendant upon that deprivation were constitutionally insufficient.” Id. (brackets and inte rnal quotation marks omitted) (quoting Thompson , 490 U.S. at 460). As noted earlier , courts evaluate procedure s’ constitutional adequacy by weighi ng the plaintiff’s liberty int erest, the countervailing government interest, and the valu e that procedural safeguards w ould provide . See Zinermon v.
Burch , 494 U.S. 113, 127 (1990) (citing Mathews v. Eldridge , 424 U.S. 319, 335 (1976)). Thus, even if the District depriv ed Jane Doe II of her liberty interest under the Health-Care Decisions Act, the D istrict’s bare violation of tha t local law does not “give rise to a due process claim.” Nicholson , 475 F.3d at 353. “In procedural due process claims, the63 deprivation by state action of a constitutionally protected int erest in ‘life, liber ty, or property’ is not in itself unconstitutional; wh at is unconstitutional is the deprivation of such an interest without due process of law .” Zinermon , 494 U.S. at 125. The constituti onal violation “is not complete unless and until the St ate fails to provide due proces s.” Id. at 126. Thus, Plaintiffs must establish that the District viol ated the Health-Care Decisions Act and that the District did so without providing Jane Doe II w ith appropriate procedural safeg uards. Accordingly, the District could, for instance, show that its official policies allowed th e District to violat e the Health-Care Decisions Act in particular situa tions, after the District had followed particular procedures . See,

e.g ., Def.’s Ex. 7, ¶ A.2, ECF No. 326–27 (reproducing Policy H-6, the District’ s policy from 1992, which indicated that “[i]n cas e of extreme emergency, the family will be contacted as soon as time permits and given a full explanation of the emergency a nd treatment administered”). The District must, of course, cite a n important government interest as its justification for any decision to violate an individual ’s liberty interest. See Sell v. United States , 539 U.S. 166, 180 (2003). Here, however, whether the District provided Jane Doe II with a ppropriate procedural safeguards—the last step of the procedural due process analysis —is intertwined with an earlier step: whether the District act ually deprived Jane Doe II of her liberty interest in having her mother give or refuse consent t o the surgery, which the Court d iscussed previously. See supra Part V.2.a.iii. As noted before, areasonable jury could infer from the evidence in this case (1) that the District did not give Jane Doe II’s mother, Ms. Fe lton, an opportunity to make a decision on Jane Doe II’s behalf abo ut the eye surgery; (2) tha t Ms. Felton learned about Jane Doe II’s scheduled eye surgery only just before it occurred; an d (3) that Ms. Felton was not aware of Jane Doe II’s legal right to have Ms. Felton “refuse o r withdraw consent” to the surgery on Jane Doe II’s behalf. See id. Accepting this theory of events, areasonable jury would likely64 also find that, for reasons explai ned below, the District did n ot provide appropriate procedural safeguards before proceeding t o authorize the surgery. After all, “[a]n elementary a nd fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them a n opportunity to p resent their o bjections.” Small v. United States , 136 F.3d 1334, 1336 (D.C. Cir. 1998) (inte rnal quotation marks omitted) (quoting Mullane v.
Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 314 (1950)); accord United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 272 (2010). If Ms. Felton, Jane Doe II’s mother and advocate, learned about Jane Doe II’s surgery only just before it occurre d, then she (and Jane Doe II, by implication) did not receive “not ice reasonably calculated . . . to apprise interested parties” of the surgery in time to give them “a n opportunity to p resent their o bjections.” Small , 13 F.3d at 1336 (quoting Mullane , 339 U.S. at 314). See generally Def.’s Ex. 21, ¶ 7, ECF No. 326-21 (noting that Jane Doe II’s mother was “ her mental retardation advocate” ); id. at 3070 (noting that Jane Doe II’s mother was her “appointed advocate by the Court”). And if Ms. Felton was not aware of Jane Doe II’s legal right to have Ms. Felton give or refuse con sent to the surgery, then she and Jane Doe II likewise never recei ved notice of the District’s in tention to deny Jane Doe II that right—nor an opportunity to presen t objections to that intentio n. 25 On these facts, if a reasonable jury were to find that Ms. Felt on did not consent to Jane Doe I I’s surgery (and thereby deprived Jane Doe II of a constitutionally protected liberty interest), then the jury, absent any additional

25 The District can find little pr otection here from the principl e that, in certain cases, “due process does not require actual notice.” Jones v. Flowers , 547 U.S. 220, 225 (2006). Because the record shows that Ms. Felton and the District communicated freq uently, see Def.’s Ex. 27, at 4150, ECF No. 326-27; Felton Dep. 11:3–12:1, 21:15–24:8, Pls.’ Ex. 29, ECF No. 329-3; see, e.g. , Def.’s Ex. 20, ECF No. 326-20, the C ourt would be skeptical o f any claim that notice “reasonably calculated” to reach Ms. Felton (as Jane Doe II’s a dvocate) did not actually reach her. Small , 13 F.3d at 1336 (quoting Mullane , 339 U.S. at 314).65 evidence not presented here, w ould likely also find that Jane D oe II did not receive constitutionally adequate proced ures to guard against that libe rty deprivation. Nonetheless, as discussed before , a genuine dispute of material fact exists regarding the predicate issue of whether the D istrict even deprived Jane Doe II of her liberty interest under the Health-Care Decision Act. See supra Part V.2.a.iii. If Jane Doe II did not even suffer a liberty interest deprivation, then the Di strict need not show that it p rovided her with appropriate procedural safeguards in t he face of that deprivation. 26 Thus, on the facts presented, the earlier-mentioned dispute of fact —regarding whether Ms. Felton consented to Jane Doe II’s
surgery, see supra Part V.A.2.iii —prevents a summary judgment decision on both e lements of Jane Doe II’s procedural due process claim. Because of that di spute of fact, the Court cannot decide on summary judgment (1) whet her the District deprived Ja ne Doe II of her constitutionally protected liberty interest, see id. ; and (2) whether Jan e Doe II received constitutionally adequate proced ural safeguards in the face of that liberty interest deprivation. b. Municipal Policy or Custom Of course, the District may noneth eless merit summary judgment on Jane Doe II’s constitutional claim if no reas onable jury could find that a Di strict policy or custom caused her alleged due process violation. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694–95 (1978) (holding that a municipality ma y be liable under 42 U.S.C. § 19 83 only “when execution of a government’s policy or custom . . . inflicts the injury”); Baker v. District of Columbia , 326 F.3d

26 In other words, if Ms. Felton consented to Jane Doe II’s surge ry, then the District need not show that it provided Jane Doe II with procedures pertainin g to any decision to proceed with the surgery in the absence of Ms . Felton’s consent. By obtainin g Ms. Felton’s consent to the surgery, the District would have met its constitutional and sta tutory burden to obtain consent from Jane Doe II’s parent. See supra Part V.A.2.ii (explaining that, under D.C. Code § 21-2210, Jane Doe II had a constitutionall y protected liber ty interest i n having her mother give or refuse consent to her surgery).66 1302, 1306–07 (D.C. Cir. 2003). However, as with Jane Doe I and Jane Doe III, the evidence on record indicates that the District authorized Jane Doe II’s eye surgery in accordance with its longstanding policy or custom of “s ign[ing] consent forms for e lective surgery . . . without having been appointed guardian and without consulting with the person having surgery.” Does I Through III v. District of Columbia , No. 01-2398, 2006 WL 2864483, at *1 (D.D.C. Oct. 5, 2006); Def.’s Statement ¶¶ 5–6; Pls.’ Statement ¶¶ 5–6. A Distr ict consent form shows that Clifford Hubbard, the District’ s Acting Administrator for the M RDDA, consented to Jane Doe II’s eye surgery on Jane Doe II’s behalf. See Pls.’ Ex. 12, ECF No. 328-11. This evidence suggests that Mr. Hubbard signed the consent form in accordance with District policy or custom, because Mr. Hubbard had signed other consent forms in a similar manner. See Pls.’ Ex. 6, ECF No. 331-2 (including similar consent forms Mr. Hubbard signed). From this evidence alone, a reasonable jury could infer that Mr. Hubbard signed Jane Doe II ’s consent form—and thereby authorized her eye surgery—in k eeping with District policy or c ustom. To be sure, the explicit Distri ct policy does indicate that a D istrict official should obtain informed consent “by the parentor [g]uardian” before medical p rocedures. See Def.’s Ex. 7, ECF No. 326-7 (stating, in the introdu ction to the poli cy, that “[i ]nformed consent must be given by the parent or [g]uardian”). But despite the policy’s apparent r equirement that parents or guardians should give informed cons ent, the District’s policy a lso states that the MRDDA
Administrator “will sign the Informed Consent Form after being adequately advised of the need for the elective . . . surgical . . . treatments.” Id. ¶ B.2 (emphasis added). And record evidence indicates that the D istrict often would not make contact with—thus necessarily would not obtain informed consent from—an individual’s family members or guardia ns before a medical procedure. See Hubbard Dep. 124:2–20, Def.’s Ex. 5, ECF No. 326-5 (indicating that the District67 would look for a parent or rela tive to sign a consent form, but estimating that two-thirds of intellectually disabled people in the District’s care lacked a “next of kin” or guardian); Washington Dep. 61:5–67:1, 122:15– 18, Pls.’ Ex. 53, ECF No. 337 -15 (explaining how one District employee attempted w ithout success to contact an indiv idual’s family members). Thus, even if the District’s expr ess policy might have required the District to obtain Jane Doe II’s mother’s consent to Jane Doe II’s surgery, there is a dispute of fact concerning whether the District had, at the very l east, a custom by which the District authorized surgeries without obtaining consent from intellectua lly disabled individuals’ par ents or guardians. See Baker v. District of Columbia , 326 F.3d 1302, 1306 (D.C. Cir. 2003) (explaining that a munic ipality may be liable for a constitutional vi olation if the plaintiff shows “the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become custom” (internal quotation mark omitted)). In Jane Doe II’s case at least, a case in which the District could consult with Jane Doe II’s family memb ers, see supra note 25, the District concedes that it assume d responsibility for “[a]ll med ical care and decisions.” Def.’s Mem. 17. To that end, as the Dis trict notes, “there is no evide nce suggesting that [Jane Doe II’s] mother ever explicitly consented . . . to any procedure proposed for Jane Doe II.” Id. ; see, e.g. Def.’s Exs. 14–17, ECF Nos. 326-14 to -17 (reproducing consent forms in which District officials, not Jane Doe II’s mot her, Ms. Felton, consented to J ane Doe II’s medical treatment). The District thus implies that, pursuant to its custom, the Dis trict never sought consent from Ms. Felton nor, presumably, from other parents as well. Nowhere does the District argue that any failure to obtain Ms. Felton’s c onsent (to the extent that it w as not, in fact, obtained) was the result of an isolated error or an i ndividual employee’s failure to follow policy. To the contrary, what little evidence exists seem s to indicate that there was no thing unusual in the authorization68 that took place. On this scant reco rd, a reasonable jury could infer that the District authorized Jane Doe II’s eye surgery, wit hout her mother’s consent, in acc ordance with the District’s custom of authorizing medical car e without the required consent

. Furthermore, a reasonable jury c ould also infer for another rea son that the District consented with the imprimatur of municipal policy to Jane Doe I I’s eye surgery: Mr. Hubbard, the MRDDA Acting Administrator, s igned the consent form authori zing her eye surgery. See Def.’s Ex. 17, ECF No. 326-17 (reproducing the consent form). B ecause Mr. Hubbard was the person who had himself authorized the District’s official polic y in place at the time and who had helped develop that policy, the j ury could reasonably find Mr. Hubbard’s written consent to Jane Doe II’s eye surgery was “a single decision taken by the highes t official[] responsible for setting policy in that area of the gove rnment’s business”—and therefore that his consent was a decision taken pursuant to a municipal policy. City of St. Louis v. Praprotnik , 485 U.S. 112, 123 (1988);

see Baker , 326 F.3d at 1306 (citing Praprotnik) (explaining that “pol icy” can be set by a municipality through “ the action of a policy m aker within the g overnment”); see also Pls.’ Ex. 11, ECF No. 328-10 (displaying Mr . Hubbard’s signature bene ath the official written policy, dated January 15, 1992); Hubbard Dep. 106:16–108:11, Pls.’ Ex. 4, ECF No. 328-5 (explaining that Mr. Hubbard, with his execu tive staff and a special policy unit, developed the 1992 policy). Of course, whether Mr. Hubbard’s written consent was unconstitu tional depends on whether it was given with or without consent from Jane Doe II’s mother, Ms . Felton. As already discussed, a dispute of fact exists on tha t issue, which the Court cannot decide on summary judgment. See

supra Part V.2.a.iii. Given this background, there is at least a dispute of fact abou t whether the District’s custom or policy was the “moving force” behind the deprivation of Jane Doe II’s liberty interest69 under the Health-Care Decision Act. Monell , 436 U.S. at 694. 27 The District therefore does not merit summary judgment on Jane Doe II’s due process claim. 28 B. Battery Having addressed Plaintiffs’ constitutional claims, the Court a nalyzes their other claims only briefly. On Plaintiffs’ battery claims, Distr ict of Columb ia law is well-settled that “[a] battery is an intenti onal act that causes a harmful or offensiv e bodily contact.” Evans–Reid v. District of Columbia , 930 A.2d 930, 937 (D.C. 2007) (internal quotation marks omitt ed) (quoting Jackson v. District of Columbia , 412 A.2d 948, 955 (D.C. 1980)). For patients competent to consent to a surgery, a surger y performed without the patient’s consent is a viable battery claim.
In re A.C. , 573 A.2d 1235, 1243 (D.C. 1990). This principle is unchanged when the patient is incompetent to consent, except that the patient’s “substituted judgment,” derived from decisions made when competent before, generally controls. See id. at 1249. When the patient has never been competent to consent to a s urgery, a parent or guardian’s consent is required, in

27 The Court recognizes that the D istrict’s custom or policy migh t have at times allowed the District to authorize surgeries without family members’ con sent for justifiable reasons, given that many individuals in the District’s care may have lacked a “next of kin” that the District could contact. See Hubbard Dep. 124:2–20, Def.’s E x. 5, ECF No. 326-5. The Court d oes not here imply that the District might have violated the Constituti on every time it authorized a surgery without making contact with or obtaining consent from afamily member. After all, a viable procedural due process clai m requires not just the depri vation of a constitutionally cognizable liberty interest, but also a showing that the govern ment deprived the plaintiff of that liberty interest “ without due process of law .” Zinermon v. Burch , 494 U.S. 113, 125 (1990). For situations in which the District could not reach an individual’ s family member, therefore, the District’s actions could have been constitutional if the Distri ct provided constitutionally adequate procedures (1) to identify fam ily members authorized to give or deny consent on the individual’s behalf, (2) to provide them with adequate notice, and (3) to gi ve them the opportunity to exercise their authority to give or deny cons ent before the District pro ceeded to authorize the individual’s surgery. 28 Because at this time the Court will not enter summary judgment for the District on Plaintiffs’ constitutional claims, the Court need not address t he District’s argument urging the Court to decline to exercise s upplemental jurisdiction over Pla intiffs’ other claims. See Def.’s Mem. 35–36.70 non-emergency situations, to avoi d liability for battery. See Bonner v. Moran , 126 F.2d 121, 121–23 (D.C. Cir. 1941) (explainin g that, in an action for dama ges for assault and battery, “a surgeon has no legal right to ope rate upon a child without the consent of his parents or guardian,” though the consent may be express or implied); accord Kozup v. Georgetown Univ. , 851 F.2d 437, 439 (D.C. Cir. 1988); Canterbury v. Spence , 464 F.2d 772, 782 n.32, 789 n.92 (D.C. Cir. 1972). 29 As discussed above, under common l aw tort principles, a personcan consent by words or actions: when words or c onduct “are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact .” Restatement (Second) of Torts § 892(2) (Am. Law Inst. 1979); see also supra Part V.A.2.a.iii (citing Boyrie v. E & G Prop. Servs. , 58 A.3d 475, 477–78 (D.C. 2013); Faniel v. Chesapeake & Potomac Tel. Co. of Md. , 404 A.2d 147, 152–53 (D.C. 1979); and Martin v. George Hyman Constr. Co. , 395 A.2d 63, 71 (D.C. 1978)). For Jane Doe II, the Court has already determined that a genuin e dispute of fact exists regarding whether Jane Doe II’s mother provided implied or expr ess consent to Jane Doe II’s eye
surgery. See supra Part V.A.2.a.iii. The record indicates that Jane Doe II was ne ver competent to consent to her eye surgery and t hat the District was not her co urt-appointed guardian. See id. ;
supra note 23. For Jane Doe II’s battery claim, therefore, a genuine dispute of fact exists regarding whether Jane Doe II’s surgery proceeded with the cons ent of her parent or guardian.

29 The D.C. Circuit’s decision in t his case did not discuss the v alidity of the District’s policies under common-la w battery principles. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 380–82 (D.C. Cir. 2007) (finding that the Distric t’s 2003 medical consent policy for intellectually disabled peopl e in its care “complie[d] withD.C. law,” but analyzing the policy under just District of Columbia statutes). The Court thus does not include discussion of that decision here. Contra Def.’s Mem. 36.71 Accordingly, neither the District nor Plaintiffs merit summary judgment on Jane Doe II’s battery claim. Jane Doe I and Jane Doe III’s battery claims call for a differe nt analysis. As discussed repeatedly in this case and in t his opinion, the Court accepts that Jane Doe I and Jane Doe III, like Jane Doe II, have never bee n competent to consent to a sur gery. See Doe ex rel. Tarlow v. District of Columbia , 489 F.3d 376, 378 (D.C. Cir. 2007); Doe ex rel. Tarlow v. District of
Columbia , 920 F. Supp. 2d 112, 126 (D.D.C. 2013); supra Part V.A.1.a.ii–iii. Thus, if the District did not obtain consent from an appropriate parent or g uardian either for Jane Doe I’s abortion or for Jane Doe III’s abortion, then the District face s liability for battery. See Bonner , 126 F.2d at 121–23. Here, the analysis of Jane Doe I and Jane Doe III’s battery cla ims diverges from the analysis of Jane Doe II’s batte ry claim. Jane Doe II had familymembers who could provide consent on her behalf, but, based on the evidence on record, Ja ne Doe I and Jane Doe III did not.
See Def.’s Ex. 8, ¶ 1, ECF No. 326-8 (noting that Jane Doe I was p laced at a “specialized foster care home” in 1982, two years before the abortion that is the s ubject of this suit); Def.’s Ex. 35, ¶ 2, ECF No. 340-1 (noting that Ja ne Doe I began living with a different foster family in 1984); Def.’s Ex. 22, ECF No. 326-22 (noting that many of Jane Doe III ’s relatives had been Forest Haven residents—and therefore li kely incompetent to provide con sent—and that Jane Doe III had lived in emergency care or foster care until she was ten ye ars old). For Jane Doe I and Jane Doe III, therefore, only a guardia n could have con sented on the ir behalf to their abortions. Even though the District likely was not t hese two plaintiffs’ court- appointed guardian, see Def.’s Mem. 5 (“[I]t was the policy of the District to sign consent fo rms . . . without having been appointed guardian . . . .”), the D istrict would have been the only reasonable source of any72 consent to a surgery on their behalf. See generally Canterbury , 464 F.2d at 788–89 (explaining that “a relative’s consent”— i.e. , the consent of an interested thi rd-party, akin to the Distric t in Jane Doe I and Jane Doe III’s cas es—may be adequate when a pati ent is “incapable of consenting” to treatment, but without requiring that relative o r interested third-party to be the patient’s parent or court-appoint ed guardian). Their battery cl aims thus hinge on whether the District provided valid cons ent to their abortions. As discussed at length earlier, the District could not constitutionally consent to Jane Doe I and Jane Doe III’s aborti ons without providing Jane Doe I and Jane Doe III with more procedural protections than it did. See supra Part V.A.1. The District’s consent to the abortions was therefore unconstitutional, see id. , and Jane Doe I and Jane Doe III’s resulting abortions were not legally authorized. 30 Because they were not legally authorized, the Court must concl ude as a matter of law that, with respect to Jane Doe I and Jane Do e III’s abortions, the District is liable for battery. See Bonner , 126 F.2d at 122 (“[T]he [defendant] is liable in damages if the operation is unauthorized.”). This Court will accordingly enter summary judgment for Plaintif fs on Jane Doe I and Jane Doe III’s battery claims. B ut, as discussed above with res pect to Jane Doe II’s battery claim, a genuine issue of materia l fact exists on the issue of whether Jane Doe II’s mother provided implied or express consen t to Jane Doe II’s surgery—an d thus on the ultimate issue of whether Jane Doe II’s surgery w as a battery. The Court will acc ordingly deny summary judgment to all parties on J ane Doe II’s battery claim.

30 After all, consent under mistak e, misrepresentation, or duress is not effective consent. See Restatement (Second) of Torts § 892(B)(2), (3) (Am. Law Inst. 1979). A fortiori , consent obtained by unconstitutional mean s would not be effective conse nt either.73 C. D.C. Code § 7-1305.14 D.C. Code § 7-1305.14 declares tha t “[n]o person shall be depri ved of any civil right . . . solely by reason of his or her having received services, volunt arily or involuntarily, for an intellectual disability.” D .C. Code § 7-1305.14(a). It also cre ates a private right of action to remedy deprivations of intellectua lly disabled individuals’ civ il rights. See id. § 7-1305.14(c) (“Any person who violates or abuses any rights or privileges pr otected by this chapter shall be liable for damages as determin ed by law, for Court costs and fo r reasonable attorneys’ fees.”); Doe ex rel. Tarlow v. District of Columbia , 920 F. Supp. 2d 112, 127 (D.D.C. 2013). The success of Plaintiffs’ clai ms under this statutory provisio n hinges on whether their constitutional claims succeed. Plaintiffs’ elective surgeries, and the accompanying allegations of due process deprivations, arose f rom their commitment to the Di strict’s care for services relating to their intellectual disabili ties. Thus, if they prevail on th eir due process claims, they will also show that they were deprive d of civil rights “by reason of . . . having received services . . . for an intellectual disability,” D .C. Code § 7-1305.14(a), entitling t hem to that provision’s statutory remedy. No party suggests that the statutory analysis here diff ers from the constitutional due process analysis conducted previously. See Def.’s Mem. 37; Pls.’ Mem. 35–36; Pls.’ Opp’n Def.’s Mot. Summ. J. 43, ECF No. 3 37 [hereinafter Pls.’ Opp’n]; see also supra Part V.A (analyzing Plaintiffs’ due process claims). Because the Court will enter judgment for Jane Doe I and Jane D oe III on their constitutional due process claims, see supra Part V.A.1, Jane Doe I and Jane Doe III have also74 shown that they merit relief under D.C. Code § 7-1305.14. The C ourt will accordingly enter judgment for Jane Doe I and Jane Doe III on their claims under that provision. 31 For Jane Doe II, however, a genuine dispute of material fact re mains regarding her constitutional claim. See supra Part V.A.2 (explaining how a reas onable jury might find either that Jane Doe II’s mother consen ted to Jane Doe II’s eye surgery or that Jane Doe II’s mother did not consent). That factual disput e also precludes summary judgm ent on Jane Doe II’s claim under D.C. Code § 7-1305.14. D. D.C. Code § 7-1305.13 D.C. Code § 7-1305.13 provides a diffe rent private right of act ion: one “to compel the rights afforded persons with intel lectual disabilities” under C hapter 13 of Title 7 of the D.C. Code (the present codificat ion of the Mentally Retarded Ci tizens Constitutional Rights and Dignity Act of 1978). See D.C. Code § 7-1305.13(a); see also id. § 7-1305.13(b) (declaring that the District may be liable fo r a “civil remedy in an amount not less than $25 per day . . . for each day” when an intellectually disa bled individual lacks an approp riate habilitation program under the Act). See generally Mentally Retarded Citizens Cons titutional Rights and Dignity A ct of 1978, No. 2-297, 25 D.C. Reg. 5094 (Nov. 8, 1978) (act codified as amended at D.C. Code §§ 7-1301.01–7-1306.05). The District argu es that the statute “ provides a cause of action for prospective relief only,” which would be ina ppropriate here because “Jane Does II and III have passed away, and Jane Doe I does not make any allegations that the District is currently

31 Because the Court will enter judgment on Jane Doe I and Jane D oe III’s D.C. Code § 7-1305.14 claims based on their successful constitutional cla ims, the Court need not assess whether Jane Doe I and Jane Doe III may also merit relief under that statute because the District “illegally consent[ed] to aborti ons and sterilizations without a court order” in violation of D.C. Code § 7-1305.08. Second Am. Compl. ¶ 40; see also, e.g. , Pls.’ Mem. 14, 22–23 (discussing sterilization).75 providing an inadequate progr am.” Def.’s Mem. 36–37. Faced with this argument, Plaintiffs provide no response. See Pls.’ Opp’n 42–43 (discussi ng battery and D.C. Code § 7-1305.1 4, but not D.C. Code § 7-1305.13). The Court agrees with the Distr ict and finds that D.C. Code § 7 -1305.13 intends to compel the District to secure appropriate prospective care for intellectuall y disabled persons in its care. Accord Harvey v. Mohammed , 841 F. Supp. 2d 164, 189 (D.D.C. 2012), aff’d in part and rev’d in part on other grounds sub nom. Harvey v. District of Columbia , 798 F.3d 1042 (D.C. Cir. 2015). Because Plaintiffs do not seek a prospective remedy, see Second Am. Compl. 15, and because they make no argumen t disputing the District’s interpretation of the statute, see Pls.’ Opp’n 42–43, the Court will enter judgment for the Distri ct on Plaintiffs’ D.C. Code § 7-1305.13 claims.

VI. CONCLUSION For the foregoing reasons, Defendant’s motion for summary judgm ent (ECF No. 326) is
GRANTED IN PART and DENIED IN PART , and Plaintiffs’ motion f or partial summary judgment (ECF No. 328) is GRANTED IN PART and DENIED IN PART . An order consistent with this Memorandum Opinion is se parately and contemporaneousl y issued.
Dated: September 9, 2016 RUDOLPH CONTRERAS United States District Judge