The capacity of a mentally challenged person to consent to abortion and sterilization.

The history of "discrimination against individuals with disabilities, while less noted than racial or sex discrimination, is no less a story of a group that has traditionally suffered not only physical barriers but the badge of inferiority emplaced by a society that often shuns their presence" (Trautz v. Weisman, 1993, pp. 294-295). In the United States, the capacity of a mentally challenged person to consent to an abortion or sterilization is governed primarily by state laws and common law (Mason & Pollack, 1997). The standards governing the capacity to consent, however, are usually determined by evaluating the severity of the disability. Federal law (Americans with Disabilities Act of 1990, P.L. 101-336) and state law concerning the capacity to consent demonstrate the many standards used to determine the severity of retardation and whether a mentally challenged person has the capacity to consent. This area of social policy is fascinating because it adds another layer of debate to topics that are not without their own intrinsic legal and public policy controversy (Feldman, 1994; Gilson, Bricourt, & Baskind, 1998; Goldstein, 1999; Lemieux, 2001; Llewellyn, 1995; Mackelprang & Salsgiver, 1996). Using legal materials, I explore how the issue of consent by a mentally challenged person is considered in deciding issues concerning abortion and sterilization and potential social work roles in these situations. Understanding the concepts associated with obtaining informed consent from a mentally challenged client is crucial for social workers placed in the role of client advocate. Like law, social work is fundamentally a discipline based on moral and ethical underpinnings. Thus, social workers have been at the forefront of bioethical decision making (Reamer, 1985). ABORTION The capacity to consent, which addresses a client's cognitive understanding of benefits, risks, and voluntariness, is a discussion social workers encounter within the framework of the Code of Ethics (2000). But the overall practice guidelines are set out more precisely by legal decisions. People are deemed incompetent when they lack the mental capacity to make decisions for themselves. This abstract concept is given practical application by the courts every day. For instance, courts have held that the decision of whether to carry to term or to abort a child is a fundamental right (Roe v. Wade, 1973) held by all citizens, including mentally challenged or incompetent individuals (In re Moe, 1991). When a guardian seeks an abortion for a mentally challenged ward (a person who is under the protection of a court), a court first considers whether the ward has the capacity to consent. The court has to determine whether the ward, despite her mental capacity, is capable of making an informed decision. If the ward can make an informed choice, then her decision is controlling. If the ward is deemed incapable of providing consent, the consent of the court or family members can be substituted for the ward's consent depending on state statute. Courts are required to determine competency of a ward to consent to an abortion. When a court determines that the capacity to consent is lacking, some states use the doctrine of "substituted judgment" or a "best interest" test. Other states allow the authorized relative to have sole discretion to consent. Substituted judgment directs that judges base their decisions on what the incompetent person would decide "if he or she were competent" (In re Moe, 1991, p. 720). This doctrine does not imply that the judge has to make the best decision in light of the facts. Instead, "[t]he courts ... must endeavor, as accurately as possible, to determine the wants and needs of this ward as they relate to the abortion procedure" (In re Moe, p. 720). If the ward is deemed incompetent to make the decision, the ward's expected preference is still a paramount consideration under the substituted judgment doctrine. …