Sterilization Ban Overturned : State High Court Upsets Law Covering Retarded

A 1980 state law that banned the sterilization of mentally retarded people was declared unconstitutional by the California Supreme Court on Monday, prompting dissenting justices to warn that such operations will become commonplace once more.

The court acted in a case brought by Mildred Gedney, a Santa Clara mother who wants to have her severely retarded 30-year-old daughter sterilized. The daughter, Valerie Nieto, has never had sex, but is affectionate toward men and may one day have relations, her mother believes.

Although unanimously rejecting the specific sterilization sought in the case, by a vote of 4 to 3 the court said the law that banned such operations violated state and federal constitutional rights to privacy.

Tubal ligations, the court ruled, must be available at least in limited circumstances to preserve a woman’s right to decide over reproduction.

Justice Joseph Grodin, writing for the majority, said Nieto will never be able to make a real choice about childbearing. But “she has a constitutional right to have these decisions made for her.”

“An incompetent developmentally disabled woman has no less interest in a satisfying or fulfilling life free of the burdens of an unwanted pregnancy than does her competent sister,” Grodin wrote.

“If the state withholds from her the only safe and reliable method of contraception suitable to her condition, it necessarily limits her opportunity for habilitation and thereby her freedom to pursue a fulfilling life.”

The Legislature’s prohibition against sterilization “sweeps too broadly, for it extends to individuals who cannot make that choice and will not be able to do so in the future,” the majority said.

Bird Dissents

But in dissent, Chief Justice Rose Elizabeth Bird said the majority’s opinion “opens the door to abusive sterilization practices which will serve the convenience of conservators, parents and service providers.”

Bird pointed to the “ugly history of sterilization”--something the majority largely ignored, she said. In a failed attempt at eugenics, 60,000 people were subjected to compulsory sterilization in the United States in the first half of this century. Nearly 20,000 of them were in California.

“Most importantly, the majority fails to note that abuses continue to occur,” she said.

In a dissent joined in large part by Justice Cruz Reynoso, Bird pointed to the 1980 court-sanctioned sterilization of a mildly retarded woman in North Carolina on grounds that she “exhibited emotional immaturity, the absence of a sense of responsibility, a lack of patience with children and continuous nightly adventures with boyfriends.”

Justice Malcolm Lucas also dissented, pointing out that the Santa Clara County Superior Court trial judge in Nieto’s case concluded that the 1980 law precluded the sterilization, but agreed there were grounds to sterilize the woman, even though the evidence he heard amounted to a brief statement by her pediatrician, a counselor and her mother.

That skimpy evidence, Lucas said, “serves only to heighten my concern that sterilization of persons such as Valerie will become pro forma commonplace occurrences.”

Eugenics Movement

The people affected by the ruling are mentally disabled to the point where they have court-appointed conservators. The 1980 law, which banned sterilization of such people, was passed after restrictions became increasingly severe in the face of the eugenics movement earlier this century.

Though the court unanimously rejected the sterilization sought specifically by Gedney for her daughter, the ruling allows the mother, who also is Nieto’s court-appointed conservator, to seek a new court hearing and order allowing the operation.

“It’s kind of scary,” Gedney said of Monday’s ruling. “I hope it will not be abused. . . .

“If it is left completely in a judge’s hands, it could be abused. I have always said it shouldn’t be up to one person. But each case should be heard so the door is not completely shut.”

Gedney said she doubts that her daughter knows what is happening. She added that she is unsure whether the young woman will ever have sex. But she noted she cannot be certain that she will always be available to look out for her daughter’s interests.

Nieto, who was born with Down’s Syndrome, has an IQ estimated to be 30 and cannot care for herself.

Other Methods

Gedney said her daughter has physical reactions to oral contraceptives and has rejected attempts by doctors to give her a pelvic exam necessary to implant interuterine birth control devices.

The court pointed out that while Nieto’s parents were precluded from having her sterilized, they could take virtually any other steps to control her reproductive rights.

The parents “may choose abortion should she become pregnant; they may arrange for any child Valerie might bear to be removed from her custody; and they may impose on her other methods of contraception, including isolation from members of the opposite sex.”

Until the Legislature comes up with regulations, Grodin wrote, lower court judges should follow procedures set forth by the Supreme Court of Washington state. Under the Washington standard, courts must rely on medical and other evidence and have clear and convincing evidence that sterilization is the best course.

Among the factors to be considered are the age and intelligence of the person; whether the offspring would inherit a genetic form of retardation; whether lesser forms of contraception will work. Courts must be certain that the proposed method of sterilization is the least intrusive method possible, and the woman to be sterilized must have an attorney.

Grodin was joined by Justices Stanley Mosk, Allen Broussard and Otto Kaus.

Real Life

“The bottom line is that . . . in real life, these standards are no obstacle to allowing a judge to do what he wants to do,” said Deputy State Public Defender Ezra Hendon, who represented Nieto.

“Whatever the parent wants, if they are well-meaning, they will get what they want. . . . Invariably in a Superior Court when a judge is presented with the choice of a well-dressed competent person and a person who is incompetent, they are always going to rule for the one who is well-dressed.”

Hendon pointed out that people who are mildly retarded and have been sterilized are “desperately unhappy” that they were forced to have the operation. Arguing against sterilization, he said these people are most likely to know what Nieto’s feelings would be if she were sterilized.

(Conservatorship of Valerie N., S.F. 24745)