Ruby v. Massey

• Decision Date: 16 May 1978
• Docket Number: Civ. No. H-76-315.
• Citation: 452 F. Supp. 361
• Court: U.S. District Court — District of Connecticut
• Parties: Richard RUBY, Rebecca Ruby, Donald Diamond, Denise Diamond, and Priscilla Pearl v. Robert U. MASSEY, M. D., Executive Director, University of Connecticut Health Center, et al.

452 F. Supp. 361

Richard RUBY, Rebecca Ruby, Donald Diamond, Denise Diamond, and Priscilla Pearl^* v. Robert U. MASSEY, M. D., Executive Director, University of Connecticut Health Center, et al.

Civ. No. H-76-315.

United States District Court, D. Connecticut.

May 16, 1978.

Judith M. Mears, New Haven, Conn., for plaintiffs.

James A. Wade, Robinson, Robinson & Cole, Hartford, Conn., for Ruby.

Richard Reynolds, Day, Berry & Howard, Hartford, Conn., for Pearl.

Brenda Eckert, Shipman & Goodwin, Hartford, Conn., for Diamond.

John F. McKenna, Asst. Atty. Gen., Hartford, Conn., John G. Hill, Jr., Asst. Atty. Gen., Storrs, Conn., for defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT

BLUMENFELD, District Judge.

The plaintiffs in this case are three sets of natural parents who challenge the refusal of the University of Connecticut Health Center to perform what the Center concedes to be "medically indicated" sterilizations upon their severely mentally retarded¹ and physically handicapped daughters.

Statement of the Case

The complaint in this action seeks injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Plaintiffs request an injunction ordering the defendant University of Connecticut Health Center and named physicians employed by the Center to "refrain from refusing" to perform surgical hysterectomies² on their three non-institutionalized mentally retarded children and a declaratory judgment that the defendants' failure to perform the hysterectomies is unconstitutional as a violation of their right to privacy, to equal protection of the laws, and to due process of law.

The three girls (Susan aged 12, Valerie aged 13, and Lynn aged 15) are severely mentally retarded and physically handicapped (blind-deaf). Susan and Valerie have no useful communication abilities; Lynn has only minimal ability to communicate.³ Although at present the girls are residents of a special school during the week, and live with their parents on the weekends, custodial care is inevitable for each of them because of their grossly impaired mental functioning and physical handicaps.⁴ The Diamonds have sought Valerie's admission to one of the two state institutions for the retarded since 1968. Priscilla Pearl has sought Lynn's admission since 1970. Neither girl is apt to be admitted to a state institution in the foreseeable future.⁵

Each of the girls shows signs of sexual development. Susan began to menstruate in July 1975. She suffers severe and painful cramping before and during her menstrual periods, as well as great psychological distress. Susan cannot care for her own hygienic needs during menstruation, and it is highly unlikely that she will ever be able to do so.⁶ Neither Valerie nor Lynn has begun to menstruate yet, but it is equally unlikely that either girl will be able to care for her own hygienic needs during menstruation.

The girls are presumably capable of conceiving, but if they were to become pregnant, they would be subject to grave risks because they are incapable of communicating with a physician about their own physical condition — i. e., whether they have had fainting spells, whether they are in pain, whether they can feel the fetus move, whether they are in labor.⁷ Moreover, it is most unlikely that any of the girls would ever be able to use, reliably or safely, any of the standard means of contraception.⁸ They cannot communicate with a physician about pain they might be suffering from an IUD, from an infection or ectopic pregnancy, and they are unable to check themselves to see if an IUD has been expelled.⁹ In terms of preventive health care, the girls cannot be examined internally or tested (for cervical cancer, venereal disease, vaginal infection) without being put under a general anesthetic each time, with all the dangers posed by that process.¹⁰

The plaintiffs have consulted with a number of physicians and social workers who have concluded that therapeutic uterectomies (sterilizations) are "medically indicated." The defendants' agent, Dr. Osborne, agrees that the sterilizations are "medically indicated." He is professionally qualified to perform the surgery and he is willing to do so.

The John Dempsey Hospital, where the surgery would be performed, is a constituent part of the University of Connecticut Health Center, and routinely provides medical care and treatment, including "medically indicated" surgery for children of normal intelligence and retarded children who live in Connecticut. For such surgery, the informed consent of the child's parent(s) is considered legally sufficient. In the instant case, the defendants have refused to put the girls under general anesthetic for purposes of internal examinations preparatory to sterilizations, and have refused to perform the sterilizations "on the grounds that there is no legislative authority authorizing parental consent for such operations in Connecticut." The defendants have stipulated¹¹ that their refusal "is based solely upon their legal counsel's judgment that the plaintiff parents' consent to have such surgery performed . . . is not now or may not be in the future legally sufficient to protect the Health Center against possible civil liability." This concern is apparently widespread among Connecticut hospitals, for the plaintiffs unsuccessfully sought to have the sterilizations performed at several other (private) hospitals in the state before bringing the instant action.¹²

Two factors are said to account for the hospitals' fear of civil liability. First, there is no statute which expressly empowers parents and/or guardians of retarded persons to give legally sufficient consent to such sterilizations;¹³ and second, there is no Connecticut statute which expressly authorizes the sterilization of mentally incompetent persons in general (private) hospitals.

It will be helpful to distinguish between two discrete claims made by the parents: (1) that their right as parents to familial privacy entitles them to give legally sufficient consent to the sterilization of their daughters; and (2) that their daughters are entitled to the benefits of Conn.Gen.Stat. § 19-569g, which does provide for sterilization of inmates of certain state institutions. The statute, which is set forth in the margin,¹⁴ allows the institutions' superintendents to submit the sterilization question to a board of doctors, and then to apply to a probate court for judicial authorization to perform the operations. There is a decided difference between having access to such a statutory procedure, by which authority for a sterilization may be obtained, and having the authority as parents to give valid consent.¹⁵ The limits on the authority of the parents to give valid consent to a sterilization operation on their children will be considered first.

The Parent-Child Relationship

When a parent decides to call a physician to care for her child, she may give lawful consent for him to administer that medical or surgical treatment which, in the doctor's professional opinion, is necessary or advisable for the health of her child. The parents' authority in their own household to direct the rearing of their children has a constitutional underpinning. The Supreme Court has said: "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither support nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). Indeed, Connecticut has emphasized parental authority over matters of health by extending it even to parents who are themselves minors.¹⁶ But this case is not concerned with the general problem of medical services for a child to which her parent may consent, nor with the correlative duty upon the parent to provide them for her minor children.

Because surgical sterilization has an immediate effect, both upon the health of a patient and upon her ability to procreate, it impinges upon two separate interests. There is

". . . an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . and . . . another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct." Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973) (emphasis in original).

Cf. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977).

So much has already been written to support the numerous decisions of the Supreme Court holding that a decision whether to bear or beget a child merits special constitutional protection, that it would be redundant to repeat it here.

In a line of constitutional cases stemming back to the Court's landmark opinion in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), which held Connecticut's birth control law unconstitutional, it has been firmly established that

"if the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) (emphasis in original).

The constitutional right of personal privacy protects a woman's decision to have an abortion from interference by a state or her spouse. Roe v. Wade, 410 U.S. at 152-54, 93 S.Ct. 705. In Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), that concept was expanded to afford the same protection to minors:

"Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possible arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the

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