The Capacity of a Mentally Challenged Person to Consent to Abortion and Sterilization (Practice FORUM‪)‬

The history of "discrimination against individuals with disabilities, while less noted than racial or sex discrimination, is no less a story of a group that has traditionally suffered not only physical barriers but the badge of inferiority emplaced by a society that often shuns their presence" (Trautz v. Weisman, 1993, pp. 294-295). In the United States, the capacity of a mentally challenged person to consent to an abortion or sterilization is governed primarily by state laws and common law (Mason & Pollack, 1997). The standards governing the capacity to consent, however, are usually determined by evaluating the severity of the disability. Federal law (Americans with Disabilities Act of 1990, P.L. 101-336) and state law concerning the capacity to consent demonstrate the many standards used to determine the severity of retardation and whether a mentally challenged person has the capacity to consent. This area of social policy is fascinating because it adds another layer of debate to topics that are not without their own intrinsic legal and public policy controversy (Feldman, 1994; Gilson, Bricourt, & Baskind, 1998; Goldstein, 1999; Lemieux, 2001; Llewellyn, 1995; Mackelprang & Salsgiver, 1996). Using legal materials, I explore how the issue of consent by a mentally challenged person is considered in deciding issues concerning abortion and sterilization and potential social work roles in these situations. Understanding the concepts associated with obtaining informed consent from a mentally challenged client is crucial for social workers placed in the role of client advocate. Like law, social work is fundamentally a discipline based on moral and ethical underpinnings. Thus, social workers have been at the forefront of bioethical decision making (Reamer, 1985).