The dispute with regard to minors and mental incompetents centers around two aspects of the statutory language. On the one hand, Congress included in every section mentioning family planning a requirement that such services be voluntarily requested. 42 U.S.C. §§ 300a-5, 602(a) (15), 708(a), 1396d(a) (4). On the other hand, these sections purport to offer family planning services to all poor people and two of them specifically include minors. 42 U.S.C. §§ 602(a) (15), 1396d(a) (4). The Secretary argues that this juxtaposition indicates that Congress intended that minors personally and incompetents through their representatives would be able to consent to sterilization under these sections. That conclusion is unwarranted.
Although the term "voluntary" is nowhere defined in the statutes under consideration, it is frequently encountered in the law. Even its dictionary definition assumes an exercise of free will and clearly precludes the existence of coercion or force. Webster's Second New International Dictionary 2858 (2d ed. 1961). See also United States v. Johnson, 147 U.S. App. D.C. 31, 452 F.2d 1363, 1372 (1971); United States v. Thompson, 356 F.2d 216, 220-221 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966). And its use in the statutory and decisional law, at least when important human rights are at stake, entails a requirement that the individual have at his disposal the information necessary to make his decision and the mental competence to appreciate the significance of that information. See , e.g., Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); Elder v. Crawley Book Machinery Co., 441 F.2d 771, 773 (3d Cir. 1971); Pearson v. United States, 117 U.S. App. D.C. 52, 325 F.2d 625, 626-667 (1963).
No person who is mentally incompetent can meet these standards, nor can the consent of a representative, however sufficient under state law, impute voluntariness to the individual actually undergoing irreversible sterilization. Minors would also appear to lack the knowledge, maturity and judgment to satisfy these standards with regard to such an important issue, whatever may be their competence to rely on devices or medication that temporarily frustrates procreation. This is the reasoning that provides the basis for the nearly universal common law and statutory rule that minors and mental incompetents cannot consent to medical operations, see Restatement of Torts § 59 (1934), or be held to contractual obligations, see 43 C.J.S. Infants § 71 et seq.; 17 C.J.S. Contracts § 133.
The statutory references to minors and mental incompetents do not contradict this conclusion, for they appear only in the context of family planning services in general. Minors, for example, are not legally incompetent for all purposes, and many girls of child-bearing age are undoubtedly sufficiently aware of the relevant considerations to use temporary contraceptives that intrude far less on fundamental rights. However, the Secretary has not demonstrated and the Court cannot find that Congress deemed such children capable of voluntarily consenting to an irreversible operation involving the basic human right to procreate. Nor can the Court find, in the face of repeated warnings concerning voluntariness, that Congress authorized the imposition of such a serious deprivation upon mental incompetents at the will of an unspecified "representative."
The regulations also fail to provide the procedural safeguards necessary to insure that even competent adults voluntarily request sterilization. Plaintiffs would require an elaborate hearing process prior to the operation to remedy this problem. The Secretary, however, has determined that the consent document procedure set forth in the existing regulations is adequate in most instances to insure a knowledgeable decision, and the Court finds that this determination is not unreasonable. In one respect, however, the consent procedure must be improved. Even a fully informed individual cannot make a "voluntary" decision concerning sterilization if he has been subjected to coercion from doctors or project officers.
Despite specific statutory language forbidding the recipients of federal family planning funds to threaten a cutoff of program benefits unless the individual submits to sterilization
and despite clear evidence that such coercion is actually being applied,
the challenged regulations contain no clear safeguard against this abuse. Although the required consent document must state that the patient can withdraw his consent to sterilization without losing other program benefits, there is nothing to prohibit the use of such coercion to extract the initial consent.
In order to prevent express or implied threats, which would obviate the Secretary's entire framework of procedural safeguards, and to insure compliance with the statutory language, the Court concludes that the regulations must also be amended to require that individuals seeking sterilization be orally informed at the very outset that no federal benefits can be withdrawn because of a failure to accept sterilization. This guarantee must also appear prominently at the top of the consent document already required by the regulations. To permit sterilization without this essential safeguard is an unreasonable and arbitrary interpretation of the congressional mandate.
Since these conclusions are based on statutory rather than constitutional grounds, the Court need not reach the question of whether involuntary sterilization could be funded by Congress. It is sufficient to note that there is no indication whatever that Congress intended to do so under the existing legislation, and such an intent will not be lightly assumed in light of the fundamental interests at stake. The present statutes were passed to facilitate only voluntary family planning and thus to assist the individual in the exercise of his voluntary right to govern his own procreation. Involuntary sterilization is not only distinguishable from these services, but diametrically so. It invades rather than compliments the right to procreate.
This controversy has arisen during a period of rapid change in the field of birth control. In recent years, through the efforts of dedicated proponents of family planning, birth control information and services have become widely available. Aided by the growing acceptance of family planning, medical science has steadily improved and diversified the techniques of birth prevention and control. Advancements in artificial insemination and in the understanding of genetic attributes are also affecting the decision to bear children. There are even suggestions in the scientific literature that the sex of children may soon be subject to parental control. And over this entire area lies the specter of overpopulation, with its possible impact upon the food supply, interpersonal relations, privacy, and the enjoyment of our "inalienable rights."
Surely the Federal Government must move cautiously in this area, under well-defined policies determined by Congress after full consideration of constitutional and far-reaching social implications. The dividing line between family planning and eugenics is murky. And yet the Secretary, through the regulations at issue, seeks to sanction one of the most drastic methods of population control -- the involuntary irreversible sterilization of men and women -- without any legislative guidance. Whatever might be the merits of limiting irresponsible reproduction, which each year places increasing numbers of unwanted or mentally defective children into tax-supported institutions, it is for Congress and not individual social workers and physicians to determine the manner in which federal funds should be used to support such a program. We should not drift into a policy which has unfathomed implications and which permanently deprives unwilling or immature citizens of their ability to procreate without adequate legal safeguards and a legislative determination of the appropriate standards in light of the general welfare and of individual rights.
The foregoing shall constitute the Court's findings of fact and conclusions of law. The various motions for summary judgment are granted in part as indicated in the attached Order, and the Secretary's motion to dismiss is denied. Each party shall bear its own costs and attorneys' fees.
In accordance with the Court's findings of fact and conclusions of law set forth in a Memorandum Opinion filed this 15th day of March, 1974, it is hereby
Ordered that the above-captioned actions are consolidated for all purposes; and it is further
Ordered that plaintiff Katie Relf may prosecute her claims as a class representative under Rule 23(b) (2) of the Federal Rules of Civil Procedure on behalf of all poor persons subject to involuntary sterilization under programs or projects which receive funds administered by the Public Health Service or the Social and Rehabilitation Service of the United States Department of Health, Education and Welfare; and it is further
Declared that the family planning sections of the Public Health Service Act (42 U.S.C. §§ 300 et seq., 708(a) (3)) and of the Social Security Act (42 U.S.C. §§ 602(a) (15), 1396d(a) (4) (C)) do not authorize the provision of federal funds for the sterilization of any person who (1) has been judicially declared mentally incompetent, or (2) is in fact legally incompetent under the applicable state laws to give informed and binding consent to the performance of such an operation because of age or mental capacity; and it is further
Ordered that defendants, their successors, subordinates, agents and employees are permanently enjoined from providing funds under the aforesaid family planning sections for the sterilization of any person who (1) has been judicially declared mentally incompetent, or (2) is in fact legally incompetent under the applicable state laws to give informed and binding consent to the performance of such an operation because of age or mental capacity; and it is further
Declared that the Sterilization Restrictions regulations issued by the United States Department of Health, Education and Welfare on February 6, 1974 (39 Fed. Reg. 4730-34 (1974)) are arbitrary and unreasonable in that they authorize the provision of federal funds under the aforesaid family planning sections for the sterilization of a legally competent person without requiring that such person be advised at the outset and prior to the solicitation or receipt of his or her consent to such an operation that no benefits provided by programs or projects receiving federal funds may be withdrawn or withheld by reason of his or her decision not to be sterilized, and without further requiring that such advice also appear prominently at the top of the consent document mentioned in those regulations, and it is further
Ordered that defendants shall promptly amend the aforesaid Sterilization Restrictions regulations to bring them into conformity with this Order; and it is further
Ordered that plaintiffs' motions for summary judgment are granted in the above respects and denied in all other respects; and it is further
Ordered that defendants' motion to dismiss is denied, and their motion in the alternative for summary judgment is granted in the above respects and denied in all other respects; and it is further
Ordered that each party shall bear its own costs and attorneys' fees.