The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs are three mentally disabled adult women who have received
habilitation services from the District of Columbia.*fn1
They bring this action under 42 U.S.C. § 1983, alleging that
the District consented to the performance of non-emergency surgical
procedures on plaintiffs without authority to do so.*fn2
Before the Court is plaintiffs' motion for leave to file a
second amended complaint [Dkt. # 213]. Upon consideration of the
motion, the opposition thereto, and the record of this case, the Court
concludes that leave to file a second amended complaint should be
Plaintiffs were institutionalized in District of Columbia facilities beginning in the 1960s. They have received habilitation services from the District of Columbia through its Mental Retardation and Developmental Disabilities Administration (now known as the Department of Disability Services, but still commonly referred to as the MRDDA). Am. Compl. [Dkt. # 91] ¶ 6.
In 1984, Jane Doe I became pregnant. She had previously given birth to a healthy boy without developmental disabilities. According to plaintiffs, District of Columbia officials requested that she have an abortion, but Jane Doe I refused. Nevertheless, those officials gave their consent for the abortion, which was performed. Plaintiffs assert that the officials neither consulted with Jane Doe I's legal representative nor obtained authorization from a court. Id. at ¶¶ 14--17.
Jane Doe II was diagnosed in 1994 with exotropia, a condition in which one eye deviates from the other. According to plaintiffs, District of Columbia officials gave their consent for an elective surgical procedure which was performed without consulting Jane Doe II's mother, who was her daughter's court-appointed advocate. Id. at ¶¶ 18--20.
Jane Doe III became pregnant in 1978 and, according to plaintiffs, desired to carry her pregnancy to term. Plaintiffs contend that District of Columbia officials gave consent for an abortion, which was performed, without consulting Jane Doe III's legal representative and without obtaining authorization from a court. Id. at ¶¶ 21--23.
B. District of Columbia Law
The Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, D.C. Law 2-137, codified as amended at D.C. Code § 7-1301.02 et seq., took effect on March 3, 1979. Among other things, the law promised that mentally disabled residents of the District would enjoy their full rights as citizens and would receive habilitation services "suited to the needs of the person" and "humanely provided with full respect for the person's dignity and personal integrity."
D.C. Code § 7-1301.02(a)(1)--(2). The law also declared that those receiving care from District of Columbia habilitation facilities would not "be sterilized by any employee of a facility or by any other person acting at the direction of, or under the authorization of, the Director or any other employee of a facility." D.C. Code § 7-1305.08.
The Health-Care Decisions Act of 1988, D.C. Law 7-189, codified as amended at D.C. Code § 21-2201 et seq., took effect on March 16, 1989. The law established a procedure for the certification of incapacity to make health care decisions and provided a list of persons authorized to make those decisions for someone certified as incompetent. D.C. Code § 21-2210. The Act also provided that those it empowered to make health care decisions for the incompetent could not "consent to an abortion, sterilization or psycho-surgery, unless authorized by a court." D.C. Code § 21-2211(a).*fn3
In 2005, this court held that the District of Columbia's policy of consenting to elective surgeries on behalf of incompetent MRDDA consumers without considering their wishes was unlawful. The Court enjoined the District from consenting to elective procedures under the policy then in force, and required that the District attempt to ascertain the "known wishes of the patient," D.C. Code § 21-2210(b), before consenting to elective surgery on her behalf. The order required the District to make documented reasonable efforts to communicate with the patient regarding her wishes, and to make a good faith determination of the best interests of the patient when her wishes could not be ascertained. Order of Apr. 29, 2005 [Dkt. # 112] at 2. This court then granted partial summary judgment to plaintiffs, holding that the District of Columbia was liable pursuant to 42 U.S.C. § 1983 for violating the liberty interests established by the Health-Care Decisions Act of 1988. Does I through III v. District of Columbia, 232 F.R.D. 18, 33 (D.D.C. 2005); see also Does I through III v. District of Columbia, 374 F. Supp. 2d 107, 116 n.12 (D.D.C. 2005) ("A due process liberty interest may arise from two sources-the Due Process Clause of the Fifth Amendment to the United States Constitution, or state law.") (citing Hewitt v. Helms, 459 U.S. 460, 466 (1983)).
The Court of Appeals reversed this court's grant of partial summary judgment, vacated this court's injunction, and directed the entry of judgment for the District of Columbia with respect to plaintiffs' demand for a declaratory judgment. Doe ex rel. Tarlow v. District of Columbia, 489 F.3d 376, 384 (D.C. Cir. 2007). The Court of Appeals held that the challenged consent policy complied with both District of Columbia law and the constitutional requirements of procedural and substantive due process. Id. The Court of Appeals further held that the MRDDA Administrator need not attempt to ascertain the wishes of those who lack the capacity to make health care decisions. Id. at 381--82. Because plaintiffs have never been able to make informed choices regarding their medical treatment, the Court of Appeals reasoned, their wishes on that ...