HEW is having in monitoring even the simplest safeguards.
When this case was before the Court prior to its Order, defendants never proposed a federal standard governing voluntariness. Indeed, it is doubtful the Court had power to establish one except by consent. Under the rigid strictures of the mandate the Court of Appeals retains jurisdiction, the appeal is still pending, and this Court has no authority to do more than approve or disapprove the precise modifications proposed and cannot fashion alternative solutions.
The Court has determined that the proposed modifications, as presented, will not be effective, that their coverage is uneven, that they create future uncertainties and that they fail to satisfy statutory standards. Among other things, the Court notes the following:
1. A regulation establishing a federal standard for voluntary sterilization should be considered through the rule-making process, after publication in the Federal Register, so that it will ultimately be fashioned with due regard for the views of the states and interested sectors of the community. The modifications proposed have not been subject to this process.
2. The Court is unwilling to enter an order which would authorize sterilizations contrary to state law and purport to affect the rights of minors and certain adjudicated incompetents to challenge at some later date the intrusion upon their person on the ground it was conducted in a manner inconsistent with applicable state law.
3. The proposed rules do not define what is therapeutic or nontherapeutic.
4. The Court is not satisfied that the complex program envisioned is susceptible to the careful, effective monitoring by the agency that would be essential to prevent abuse.
5. The proposed procedures avoid requiring certifications from the attending physician that the patient has truly given informed consent with full understanding and no provision is made for representation by counsel.
6. The proposed regulations would still not achieve the desired uniformity because they incorporate various state statutes now governing aspects of sterilization.
In denying the proposed modifications, the Court in the exercise of its discretion has, among other things, in addition to the reasons summarized above, found strong support in the supplemental memorandum submitted by plaintiff National Welfare Rights Organization filed September 17, 1975.
Unfortunately the case is in a straightjacket caused by the Government's desire to rewrite the decree in the appellate court while, at the same time, protesting the correctness of the decision below on the merits. The present procedural difficulties can be surmounted only after the appeal has run its course. If the Court erred, it can be reversed. If it did not, then the Order can be affirmed. In the event of affirmance there is nothing to prevent defendants' publishing proposed rules for establishing a workable federal standard. After an appropriate rule-making proceeding and decision, the Court could consider modifying its Order and would have the benefit of extensive data that would be generated in the rule-making proceeding reflecting experience under the Order as drawn.
Incident to this proceeding, plaintiffs have moved to enforce the existing Order pursuant to Rule 70 of the Federal Rules of Civil Procedure. Many serious deficiencies in the enforcement of the Order were brought to the Court's attention insofar as they might suggest, as they did, defendants' inability to make the program envisioned by the proposed modifications viable. In the process, many significant steps have been made by defendants in good faith to effectuate improved compliance. The motion to enforce is, in short, now out of date. If plaintiffs intend to pursue the matter they should file new papers to initiate a separate proceeding as required by the rules. The motion to enforce will be denied, without prejudice, at this stage.
Plaintiffs having moved for an order pursuant to Rule 70 of the Federal Rules of Civil Procedure to enforce the Order now in effect and it appearing that intervening matters have substantially altered the basis for such motion, the motion is denied without prejudice.
This matter having been remanded by the United States Court of Appeals for the District of Columbia Circuit to consider proposed modifications to the Decree and the Court having determined in its discretion, for reasons set forth in an accompanying Memorandum, that such modifications are inappropriate and not in the public interest, now therefore it is
Ordered that the modifications shall be and hereby are rejected.
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