Sandy Taleghany, J.D., L.L.M. Candidate
A Michigan County Court judge recently ordered a woman to submit to a medically verifiable method of birth control in an abuse and neglect proceeding regarding two of her children. ACLU of Michigan’s Amicus Brief, available at http://www.aclumich.org/pdf/briefs/brief-gamez-0703.pdf. In Fam. Indep. Ctr. v. Gamez, a Michigan County Court held a formal hearing on allegations that the Defendant, Gamez was a drug abuser and may have physically neglected her two minor children. Id. During the hearing, Judge Michael P. Higgins was adamant in preventing Gamez from having any further children. Id. So adamant that he mandated that Gamez be placed on a form of birth control that could be verified by a doctor. Id. Due to personal concerns, including prior medical complications, Gamez objected to the Court’s ruling. Id.
Gamez appealed by the order issued by the trial court directing her to submit to a medical examination "to determine an appropriate form of birth control." People v. Gamez, 2003 WL 22299795 (Mich. App. 2003). While this issue was pending on appeal, the trial court attempted to rescind this portion of its order but lacked the requisite authority under MCR 7.208(A)(1). Id. The Michigan Appellate Court remanded the case back to the trial court allowing it twenty-eight (28) days in which to rescind the January 15, 2003 order to the extent it requires Gamez to submit to a medical examination for birth control purposes. Id.
Verifiable forms of birth control would include Depo-Provera injections and intrauterine devices (IUDs), both of which have potentially serious side effects including depression, painful and recurring headaches, irregular menstrual bleeding and decreased bone density. Studies have also associated Depo-Provera with an increased risk of breast cancer in some women, and IUDs may lead to hemorrhaging, infertility, risk of pelvic inflammatory disease and potential perforation of the uterus. Judge Higgins attempted to justify his ruling by contending that an additional child could run the risk of having “special needs.” Despite Gamez’s refusal to consent to the intrusive methods of birth control suggested by Judge Higgins, sua sponte, he ordered her to submit to a medical examination within seven days to determine which method of verifiable birth control would be appropriate.
The U.S. Court has often recognized that “[i]f 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 (1972). The Court has established a recognized constitutionally protected liberty interest in avoiding unwanted medical care and a right to bodily integrity. Judge Higgins’ order that not only Gamez take a form of contraceptive, but a verifiable/invasive form of contraceptive appears to cut directly against the precedent of the U.S. Supreme Court.
The problem posed by Judge Higgins’ order is that it opens the door for the courts to potentially practice medicine. Here, the court not only prescribed a specific treatment for the defendant to undergo but went further to specify the form of the treatment. Mandating that Gamez submit to a medical examination and undergo hormonal control via contraceptives is equivalent to a physician prescribing treatment. In addition to being invasive, the “verifiable” forms of birth control have potentially devastating side effects including infertility. The implications of effectively controlling a women’s right to procreate invoke concerns addressed in years of abortion cases.
Pursuant to the stringent strict scrutiny standard, it is highly unlikely that invasive contraceptives are the most narrowly tailored means to protect the compelling interest of protecting a potential child. Ominously, if courts lawfully prohibit procreation to prevent potential neglect, they may soon begin to use the same means to prevent children growing up in families with few financial means or prevent birth to children with genetic disorders. Instinctively the court’s intrusive medical decision appears unconstitutional. Query whether this case is unique because of the invasive quality of the treatment and the potential side effects. Would court-compelled medical treatment pass constitutional muster if it was not invasive or potentially harmful? The tighter the nexus between medical decisions and the judicial branch, the sooner we will have to determine whether as a society we will accept our court wearing white jackets and stethoscopes.
The trial court’s decision mandating contraception flies in the face of long-standing Michigan precedent. In People v. Walsh, the trial court ordered the defendant who pleaded nolo contendere to second-degree child abuse to use Norplant or Depo-Provera as a method of birth control during the term of probation. People v. Walsh, 593 N.W.2d 558 (Mich. 1999). In denying leave to appeal based on mootness, Justice Corrigan of the Michigan Supreme Court stated that the condition of probation was clearly unlawful and invalid under MCL 771.3(4), MSA 28.1133(4). Id. Michigan Code of Criminal Procedure states, [t]he court may impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper. MICH. COMP. LAWS § 771.3 (4) (2003).
In People v. Gauntlett, the trial court conditioned the defendant’s probation on the administration of Depo-Provera. People v. Gauntlett, 352 N.W.2d 310 (Mich. 1984). Again, the Michigan Supreme Court concluded that the condition was unlawful. Among the Court’s concerns were the potential side effects of Depo-Provera. Depo-Provera, a medroxyprogesterone acetate manufactured by the Upjohn Company is similar to the progesterone hormones produced by the body naturally. Id. Although the drug is used as a birth control agent in foreign countries, its only licensed use in the United States is for treatment of certain uterine and kidney cancers. Id. at 314. When administered to males, Depo-Provera lowers the level of testosterone, reduces the sex drive and in most instances causes temporary impotence. Id. Long-term toxicology studies in monkeys, dogs and rats disclose that the drug produces cancer in female organs. Id.
The Gauntlett Court pointed out that “no appellate court in the United States, either state or federal, has ever passed upon or approved either voluntary or mandatory treatment of sex offenders with medroxyprogesterone acetate or Depo-Provera.” Id. The Court ultimately concluded that there is no statutory authorization in Michigan for treating sex offenders with medroxyprogesterone acetate. Id.
The Court expressed legitimate concerns that should be echoed in Gamez’s case,
Who is to administer this treatment? What if, as defendant alleges, the medicine would be detrimental to his alleged heart and psychiatric conditions? What about the problem of informed consent? Even mentally incompetent persons, committed under court process, enjoy a greater degree of protection from extraordinary medical procedures. Even prison inmates enjoy greater protection.Id. While Gamez’s case is distinguishable in that there is no conditional probation at issue, the analysis is the same. It would be illogical for the Michigan judicial system to prohibit court mandated Depo-Provera for male sex offenders, and simultaneously permit it for women in neglect cases.