ABORTION When a Mentally Ill Woman Refuses Abortion 17 Ann Brown is a twenty-seven-year-old woman with a diagnosis of chronic paranoid schizophrenia. She has a history of prolonged institutionalization, with intermittent attempts at independent living. Presently living in a mental her desire to continue the pregnancy and to keep the child. Abortion, she de- hospital, Ann Brown is now twelve weeks pregnant. She has firmly indicated clares, "is against my principles." The father is unknown. While Ann's psychiatrist does not consider her capable of responsible par- enthood, he does think that she is capable, at times at least, of meaningful moral decisions. Her schizophrenia and medication taken early in pregnancy slightly increase the possibility of fetal defect. Ann Brown's mother wants her to have an abortion, and has secured legal custody of her daughter in order to effect that result. She feels that the ex- Ann's mental state. Moreover, she herself is unable to care for the child and perience of pregnancy and the trauma of labor and delivery will worsen fears that Ann will suffer further if she is forced to give up the child to strangers. The hospital attorney has indicated that she will oppose Ann's mother's re- quest for an abortion. She will argue that it cannot be performed without consent. There is little likelihood that Ann Brown would be allowed to care for her child. However, because of the ambiguity surrounding parental consent, the child would probably be placed in foster care rather than with adoptive parents. Should the abortion be performed? Who should decide? COMMENTARY Mary Mahowald Among the diverse ethical and legal issues raised by this case, I would like to address two: the moral status of incompetent adults, as well as fetuses; and the relationship between the hospital and the courts. "Informed consent" is generally viewed as essential to legal and moral justification for medical procedures. There is also general agreement that in- formed consent entails three factors: competence, understanding, and volun tariness. The same factors are present in proxy or substitute consent, which 78 is neither legally is less binding on nor WHEN A MENTALLY ILL WOMAN REFUSES ABORTION morally 79 as strong a basis for medical intervention as in- formed consent. Accordingly, parents' refusal of treatment for their offspring selves. Proxy dissent may be overruled on grounds that it violates the best interests of the person for whom consent is refused. In securing legal custody of her daughter, Ann Brown's mother has as- sumed certain rights and responsibilities regarding her, but these do not nec- essarily imply either Ann's incapability for informed consent or her mother's right to choose abortion for her pregnant daughter. A court judgment would have to be obtained to warrant overriding Ann's refusal of the procedure. practitioners than is their refusal of treatment for them- In requesting such an order, Ann's mother could argue that it is in her nancy, experiencing labor and delivery, and probably delivery of the child daughter's best interest to have an abortion, because continuing the preg- into another's custody would together entail a burden greater than the abortion. Against that argument stands the fact that Ann has clearly indi- abortions entail the experience of labor and delivery. (Alternatives to cated a desire to continue the pregnancy, and that most second-trimester labor are available for either childbirth or abortion.) Moreover, the possi- bility that Ann's sense of "wrongness" about abortion might impose an added psychological burden needs to be considered in evaluating her best interests. As the psychiatrist apparently recognizes, even legally incompetent indi- viduals may be capable of moral decisions. In addition to mental illness, youth is often a criterion for denying a legal right to choose or refuse medical care. Yet most adolescents, and many younger children, are morally respon- sible for some of their acts, even as adults may be legally competent while morally incompetent. Moreover, a sophisticated understanding of compli- cated medical procedures is not requisite to informed consent. The crucial cognitive component of a moral decision is recognition of the cause-effect re- lationship between election of a procedure and its results. If Ann has a basic understanding of what abortion entails, and what continuation of her preg- nancy entails, that cognitive requirement is satisfied. While ambiguity may remain about whether Ann has made a moral de- cision in this instance, the moral standing of the fetus tips the scale in favor of respecting her refusal. Moral standing does not imply personhood; it merely means that an individual has some moral claim on others, for exam- the ple, a prima facie right to, or interest in, continued existence. In this case, probability that the child will be normal, and live a life that is better than death, argues that the interests of the fetus coincide with Ann's desire to continue the pregnancy. consider the interests of a nonviable fetus. Therefore, a legal determination Nonetheless, since Roe v. Wade (1973) there is no legal requirement to might be provided through a court decision, based on psychiatric evaluation of Ann's competence to dissent or consent to an abortion is crucial. This of Ann's competence. 2/4 80 ABORTION an important criticism of the popular "pro-choice" view of abortion. Some The possibility that Ann is incompetent both legally and morally suggests women who are pregnant are clearly incapable of autonomous decisions (for example, those who are unconscious or profoundly retarded). Others, partic- ularly minors, are questionably competent. Exclusive emphasis omy undercuts the principles of beneficence and nonmaleficence, which re- main applicable in such cases. on auton- COMMENTARY Virginia Abernethy There is little question that the hospital attorney would prevail in a court of law and that the abortion would not be performed over her and Ann Brown's objections. But although the case will be decided in Ann's favor, I maintain that this is an absurd outcome based on a fallacious understanding of liberty. and a competent person has the nearly unqualified right to refuse any un- Ann's objection will be honored because abortion is a medical procedure wanted health care intervention. However, this right to refuse apparently does not overwhelm a state interest in protecting others, so limited coercion is permitted in issues of immunization or quarantine, or where refusal of blood transfusion endangers a third-trimester fetus. Even when the patient's own life is at issue, if the refusal is "ambivalently" given and the intervention is not major (as in blood transfusion), a patient's refusal may be overridden. Ordinarily, however, a competent person's right to refuse is respected even when the decision appears life-threatening and is "irrational" in terms of others' thinking and values. Legal precedents affirming the person's right not to be touched without personal consent derive both from the common law and from the constitutional guarantee of privacy. The question thus turns on whether Ann Brown is competent. It is rele- vant here that competence is presumed and the burden of proof is on those who challenge it; that schizophrenia is not conclusive evidence of incompe- tence to refuse a medical procedure; that Ann has the capacity to under- stand the procedure and its meaning to her (that is, abortion means no baby, and no abortion means she will probably deliver); and that the psy- chiatrist declares "she is capable, at times at least, of meaningful moral deci- sions." If Ann wanted to have the baby even after being forewarned that, since she was psychiatrically ill and institutionalized, she would never be entrusted with her child, that would constitute telling evidence of her in- competence. But to support the conclusion of incompetency, one might still have to argue that denying those facts because of hoping for recovery from schizophrenia is so unrealistic as to be, in itself, grounds for judging a per- son to be incompetent. 3/4 WHEN A MENTALLY ILL WOMAN REFUSES ABORTION 81 I am unwilling to agree that hoping for recovery is a sign of incompetence. I also doubt that a court of law would find Ann incompetent on the totality of evidence. If she is competent, she can refuse the abortion. End of case. Unfortunately, this leads to an absurd outcome-so absurd that one must search for an underlying fallacy. The outcome is absurd because Ann Brown does not want the pregnancy and childbirth as ends in themselves; she wants the resulting child. But it is acknowledged by all (except Ann, pre- sumably) that she cannot care for the child, her mother cannot care for the child, and so the child will be taken from her for indefinite foster home placement. No one's good is served: not Ann's and not society's, because so- ciety will be burdened with the cost of foster care. All this happens because society will take away Ann's child but cannot prevent or take away Ann's pregnancy. The fallacy, in my view, is in assuming that Ann has the right to bear a child. This is a wrong-headed belief into which we have muddled because of overemphasis on rights and privileges and neglect of duties and responsibilities. A well-functioning, stable society matches every right to a responsibility. A "person" in either the philosophic or social sense has both rights and re- sponsibilities. There is a correspondence between them. This suggests that Ann's right to procreate might be compromised by her very limited capacity to be responsible as a parent. If no one felt obliged to care for the child it would be different; the child would die and Ann's "right" would be nullified. But our society does feel obliged; this is not Dickensian England. Since children are thought to create a responsibility, perhaps there should not be a right to procreate by those unable to assume that responsibility. No right so broad that, morally, it can extend to harming others. Thus, there is a public right to use water, but not to pollute it. Industry has rights to free conduct of their business, but not to destroy the environment for oth- ers. Your right to swing your fist ends where my nose begins. Ann's right to procreate ends where the responsibility to raise her child becomes mine- ours-society's. Acceptance of the underlying principle would raise questions for others who are arguably deficient as parents: for example, the severely retarded, ambulatory schizophrenics, the socially maladjusted, people who have proven to be "poor parents" in the past and had their children taken from them. Possible extensions of a principle of reciprocal rights and responsibili- ties are disquieting and raise questions about how due process would de- velop in order to prevent abuse. Nevertheless, since the present rules seem seriously flawed I do not withdraw my proposal. Since Ann's pregnancy is leading to a child for which she cannot be responsible, a child for which society will be responsible, her right to privacy does not extend to refusing an abortion. The right to procre- ate should be limited by the capacity to take responsibility for the result. Ann's right to bring forth ends where my duty to care for her child begins. 4/4