                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


   JANE DOE I, by her conservator,
   Linda Tarlow, et al.,

                            Plaintiffs,
                                                            Civil Action 01-2398 (RC)
                       v.

   DISTRICT OF COLUMBIA,

                            Defendant.


                                   MEMORANDUM OPINION

       In 2001, three women with significant intellectual disabilities brought this case against

the District of Columbia, which cared for them through the agency now known as the

Department on Disability Services. The plaintiffs alleged that the District improperly authorized

elective medical procedures to be performed on them, and thereby violated their constitutional

rights. After many years and the death of two plaintiffs, whose estates have maintained the

action, the District now moves to dismiss the second amended complaint. For the reasons stated

below, that motion will be denied and this case brought to a close as expeditiously as the court

can fairly manage.

                                          I. BACKGROUND

       The plaintiffs in this case, who are proceeding by pseudonym, each allege that the

District illegally authorized elective surgical procedures to be performed on them, in violation of

their constitutional rights. Two plaintiffs, known as Jane Does I and III, had their pregnancies

aborted in 1984 and 1978, respectively. 2d Am. Compl. ¶¶ 14–20. In 1994, Jane Doe II

underwent eye surgery to correct her extropia, a condition in which one eye deviates from the

other. Id. ¶¶ 47–49. Jane Does I and III chiefly contend that their abortions were illegally
authorized because constitutionally-required procedural protections were not observed. Id. ¶¶

28, 30. Jane Doe II primarily argues that the District was required to obtain consent from her

mother, who was her court-appointed advocate. Id. ¶¶ 48, 57.1

       The plaintiffs began this suit as a challenge to the policies under which the District

provided substituted consent to medical procedures for intellectually disabled patients who were

under its care and unable to make their own medical decisions. Proceeding under 42 U.S.C.

§ 1983, the plaintiffs sought both damages and an injunction barring the District from continuing

to use the substituted consent policy that was then in force. The Honorable Henry H. Kennedy,

Jr. granted the injunction, concluding that D.C. Code § 21-2210(b) required the District to make

an effort to determine the wishes of an incompetent patient with regard to an elective surgery,

rather than simply acting in the patient’s best interests. Because the District did not, under its

then-current policy, inquire into the subjective wishes of incompetent patients in its care, Judge

Kennedy found that it violated those patients’ constitutionally-protected liberty interests in

bodily integrity, as established by local law. See Doe v. District of Columbia, 374 F. Supp. 2d

107, 112–16 (D.D.C. 2005) (preliminary injunction); Doe v. District of Columbia, 232 F.R.D.

18, 32–34 (D.D.C. 2005) (permanent injunction).

       On appeal, the D.C. Circuit vacated the injunction. After plaintiffs’ counsel represented

that their clients “lack the mental capacity to make healthcare decisions,” the Circuit set out to

determine whether local statutory law, on the one hand, or federal constitutional law, on the

other, requires the District “to consider the healthcare wishes of intellectually disabled patients

(such as the plaintiffs here) who have always lacked mental capacity to make healthcare

       1
          Jane Doe I proceeds by her conservator, Linda Tarlow. Jane Does II and III have
passed away over the course of this litigation. Their estates proceed by their personal
representatives.

                                                  2
decisions for themselves.” Doe ex rel. Tarlow v. District of Columbia, 489 F.3d 376, 378, 380

(D.C. Cir. 2007). The Circuit found that the answer to both inquiries is “No.” It explained that,

under District law,

       a “decision to grant, refuse or withdraw consent” on behalf of a patient who lacks the
       mental capacity to make medical decisions “shall be based on the known wishes of
       the patient” if those wishes are ascertainable. D.C. Code § 21-2210(b). But “if the
       wishes of the patient are unknown and cannot be ascertained,” the decision “ shall
       be based on . . . a good faith belief as to the best interests of the patient.” Id. It is
       undisputed here that plaintiffs have always lacked “sufficient mental capacity to
       appreciate the nature and implications of a health-care decision, make a choice
       regarding the alternatives presented or communicate that choice in an unambiguous
       manner.” Id. § 21-2202(5); see also Does I Through III v. District of Columbia, 232
       F.R.D. 18, 32 (D.D.C.2005); Tr. of Oral Arg. at 21, 27. Because plaintiffs have
       never been able to make informed choices regarding their medical treatment, their
       true wishes with respect to a recommended surgery “are unknown and cannot be
       ascertained” for purposes of § 21-2210(b). Therefore, the District of Columbia is
       correct that the “best interests” standard applies to the . . . plaintiffs in this case.

Id. at 381 (citations altered and emphases deleted) (first ellipsis in original). The Circuit went on

to hold that the then-current consent policy complied with both § 21-2210(b) and the

constitutional guarantee of due process. Id. at 382–84. It therefore directed the entry of

judgment for the District “with respect to plaintiffs’ claims for declaratory and injunctive relief.”

Id. at 384. The Circuit concluded by noting that “damages claims brought by Jane Doe I, Jane

Doe II, and Jane Doe III based on alleged incidents that occurred more than a decade ago, before

the adoption of the [then-current substituted consent] policy” were still pending before the

district court. Id. The Circuit recognized that the damages claims were not before it, and

“therefore [did] not address them.” Id.

       On remand, Judge Kennedy granted summary judgment to the District on most of the

damages claims. Although the plaintiffs argued that the District only acquired the authority to




                                                  3
provide substituted consent for incompetent patients in 1998,2 Judge Kennedy found that the

contrary holding was implicit in the Circuit’s opinion denying injunctive relief. Relying on the

law-of-the-case doctrine, he ruled that, although the Circuit had not addressed the plaintiffs’

“damages claims . . . based on alleged incidents that occurred more than a decade ago, before the

adoption” of the then-current substituted consent policy, Doe, 489 F.3d at 384, it nonetheless

“decided that the District of Columbia was legally authorized to consent to [intellectually

disabled patients’] surgeries” during that time period, Doe v. District of Columbia, 593 F. Supp.

2d 115, 125 (D.D.C. 2009). Judge Kennedy therefore granted summary judgment to the District

on the question of its authority to consent to elective surgery for the patients in its care. Id. But

he found that “[a] genuine issue of material fact remains in dispute as to whether the District of

Columbia had a custom or policy of failing to obtain consent from, or ignoring or overriding the

wishes of” family members who were authorized to give or withhold consent to surgeries under

D.C. Code § 21-2210, as Jane Doe II alleged. Id.

       Judge Kennedy later granted the plaintiffs leave to amend their complaint to add the

claim that “the abortions performed on Jane Does I and III were unauthorized because . . . only a

court can properly consent to the performance of an abortion on an incompetent woman.” Does

v. District of Columbia, 815 F. Supp. 2d 208, 214 (D.D.C. 2011). Noting that current District

law prohibits the authorization of abortions without a court order, id. at 218 (citing Doe, 489

F.3d at 379 (citing D.C. Code § 21-2211)), but that the plaintiffs’ abortions took place years

before that law was enacted, Judge Kennedy turned to the argument “that constitutional due



       2
          See In re Gillis, 849 A.2d 1015, 1019 (D.C. 2004) (discussing the Mentally Retarded
Citizens Substituted Consent for Health Care Decisions & Emergency Care Definition
Temporary Amendment Act of 1998, D.C. Act 12-588, § 3(a), 46 D.C. Reg. 1115 (1998)). That
authority has since been revoked. See D.C. Code § 21-2210(g)–(h).

                                                  4
process requires a court order before an abortion can be performed upon a woman incompetent

to consent,” id. Observing that the question was a matter of first impression in the federal courts

and citing federal and state cases that have found “a federal constitutional right to judicial

oversight of involuntary sterilizations of the mentally ill and mentally disabled,” Judge Kennedy

concluded that “given the unsettled state of the law” in this area, the novel claim would “be

better tested when fully briefed.” Id. at 219–20. The second amended complaint also reiterated

the claims brought by Jane Doe II regarding the District’s alleged failure to obtain the consent

(or, alternatively, its decision to override the wishes) of her mother, and added claims for battery

and violations of the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978,

D.C. Code §§ 7-1301.01 et seq., on behalf of all plaintiffs. The District has moved to dismiss the

new complaint and that motion is now before the court.

                                     II. LEGAL STANDARD

       A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Such

motions allege that a plaintiff has not properly stated a claim; they do not test a plaintiff’s

ultimate likelihood of success on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The

complaint is only required to set forth a short and plain statement of the claim, in order to give

the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic

Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and

Conley v. Gibson, 355 U.S. 41, 47 (1957)).

        A court considering this type of motion presumes the factual allegations of the complaint

to be true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip

Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to


                                                   5
plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534

U.S. 506, 511–14 (2002), or to plead law or match facts to every element of a legal theory,

Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal citations omitted). Nonetheless,

“[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007).

A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. (citing Twombly, 550 U.S. at 556).

        The court need not accept as true inferences unsupported by facts set out in the complaint

or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39

(D.C. Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555).

                                          III. ANALYSIS

        The intellectually disabled, like others, “have and retain their substantive constitutional

rights,” City of Cleburne v. Cleburne Ctr., 473 U.S. 432, 447 (1985), including the right not to

“be deprived of life, liberty, or property, without due process of law,” U.S. Const. amend. V. In

guarding that right, “[t]he Due Process Clause guarantees more than fair process, and the

‘liberty’ it protects includes more than the absence of physical restraint.” Washington v.

Glucksberg, 521 U.S. 702, 719 (1997). Among other rights, “the ‘liberty’ specially protected by


                                                   6
the Due Process Clause includes the right[ ]. . . to have children,” id. at 720, which is “one of the

basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); see also Parker v.

Hurley, 514 F.3d 87, 102 (1st Cir. 2008); Russ v. Watts, 414 F.3d 783, 790 (7th Cir. 2005);

United States v. Williams, 124 F.3d 411, 422 (3d Cir. 1997); City of New York v. U.S. Dep’t of

Commerce, 34 F.3d 1114, 1128 (2d Cir. 1994) (all recognizing a right to procreate founded on

Skinner).

       Of course, even rights so fundamental as the right to have children are not absolutely

immune from government infringement. “Freedom from bodily restraint has always been at the

core of the liberty protected by the Due Process Clause from arbitrary governmental action,” but

the government may nonetheless confine someone “if it shows ‘by clear and convincing

evidence that the individual is mentally ill and dangerous’” to himself or others. Foucha v.

Louisiana, 504 U.S. 71, 80 (1992) (quoting Jones v. United States, 463 U.S. 354, 362 (1983)).

To confine a person who is only mentally ill or only dangerous violates his right to substantive

due process, id.; to confine him on proof of mental illness and dangerousness by less than clear

and convincing evidence denies him procedural due process, Addington v. Texas, 441 U.S. 418,

424 (1979).

       By the same token, the Supreme Court has never reconsidered its holding that

compulsory sterilization can comport with the requirements of substantive due process—that the

public interest may sometimes justify involuntary sterilization. See Buck v. Bell, 274 U.S. 200,

206–07 (1927). But such a significant deprivation of liberty must be preceded by significant

procedural protections. See, e.g., Buck, 274 U.S. at 206 (procedural due process satisfied where

superintendent of state institution submits a sworn petition, notice is served upon patient and

guardian, a hearing is held and a written record made, appeal to a state trial court is available,


                                                  7
with the opportunity to offer new evidence and receive de novo review, and a final appeal may

be made to the state supreme court, which reviews the record de novo); Vaughn v. Ruoff, 253

F.3d 1124, 1129 (8th Cir. 2001) (involuntary sterilization “must be preceded by procedural

protections”); Mich. Protection & Advocacy Serv. v. Kirkendall, 841 F. Supp. 796, 801 (E.D.

Mich. 1993) (“[A]s a matter of federal law, this court finds that the due process . . . clause[ ] of

the United States Constitution demand[s] that any involuntary sterilization . . . occur only after a

full evidentiary hearing has been held to determine the propriety of such an extreme measure in

relation to the rights of the patient.”); In re Hendrickson, 123 P.2d 322 (Kan. 1942) (en banc)

(sterilization statute violates 14th Amendment where inadequate notice of sterilization

proceeding provided); Brewer v. Valk, 167 S.E. 638, 639 (N.C. 1933) (sterilization statute

violated 14th Amendment because “it failed to give this plaintiff notice and a hearing of the

proposed operation [as well as] an opportunity to present witnesses and be heard”); see also In re

C.D.M., 627 P.2d 607, 612 (Alaska 1981); Motes v. Hall Cty. Dep’t of Family & Children Servs.,

306 S.E.2d 260, 262 (Ga. 1983); In re Hillstrom, 363 N.W.2d 871, 876–77 (Minn. Ct. App.

1985) (all holding that 14th Amendment requires sterilization petitions to be evaluated under a

clear and convincing evidence standard).

       Jane Does I and III allege that no procedural protections were provided before the

District authorized their abortions. Like sterilization, compulsory abortion infringes on a

woman’s right to have children. Although it may be a lesser infringement, it is still a significant

one. As the leading scholars on the subject have noted:

       On the one hand, when a young woman has an abortion, that does not mean she can
       never have any children . . . . On the other hand, . . . abortion . . . is a final,
       irreversible procedure in one sense: It ends the fetus’s potential life. . . .




                                                  8
         Abortion can also effectively be permanent in another sense. When contrasted with
         sterilization, the reversibility of abortion is stressed . . . . But in fact if the caretaker
         is going continually to supervise and to opt for abortion . . . the effect on the
         subject’s ability to reproduce is the same.

MARTHA A. FIELD & VALERIE A. SANCHEZ, EQUAL TREATMENT FOR PEOPLE WITH MENTAL

RETARDATION: HAVING AND RAISING CHILDREN 140 (1999). Such an infringement of a

fundamental right may, sometimes, be sufficiently justified to satisfy the requirements of

substantive due process. But it must always be attended by procedural protections “appropriate

to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313

(1950); see also Zinermon v. Burch, 494 U.S. 113, 127 (1990) (“Due process, as this Court often

has said, is a flexible concept that varies with the particular situation.”); Morrissey v. Brewer,

408 U.S. 471, 481 (1972) (noting that “due process is flexible and calls for such procedural

protections as the particular situation demands”).

         In its motion to dismiss, the District argues that the only procedural protection to which

Jane Does I and III were entitled was to have a competent professional exercise appropriate

judgment as to whether an abortion was in each patient’s best interests. The District cites

Youngberg v. Romeo, 457 U.S. 307 (1982), for this proposition. But Youngberg is not nearly so

broad.

         In Youngberg, the Supreme Court “consider[ed] . . . for the first time the substantive

rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to

the Constitution.” Id. at 314 (footnote omitted).3 Pennsylvania, which had ordered the

         3
         As the District notes, the Fourteenth Amendment does not apply to the District of
Columbia, see District of Columbia v. Carter, 409 U.S. 418, 423–24 (1973), but “[t]he Supreme
Court has consistently applied the same standards to determine deprivation of liberty without due
process under the fifth and fourteenth amendments,” Doe v. U.S. Dep’t of Justice, 753 F.2d
1092, 1105 n.13 (D.C. Cir. 1985). The complaint’s occasional careless references to the
Fourteenth Amendment are not fatal to the plaintiffs’ case.

                                                      9
commitment of Nicholas Romeo, conceded that he had “a right to adequate food, shelter,

clothing, and medical care,” but disputed his right to “safety, freedom of movement, and

training.” Id. at 315. The Court first addressed the question of safety. Having previously held

that it was cruel and unusual punishment to hold convicted criminals in unsafe conditions, the

Court deduced that it must therefore also “be unconstitutional to confine the involuntarily

committed—who may not be punished at all—in unsafe conditions,” Youngberg, 457 U.S. at 316

(citing Hutto v. Finney, 437 U.S. 678 (1978)). The “right to freedom from bodily restraint” was

similarly implicit in earlier decisions about criminal confinement; the Court reasoned that if such

a right “survives criminal conviction and incarceration” then “it must also survive involuntary

commitment.” Id. The Court also concluded that, on the facts before it, the “respondent’s

liberty interests require the State to provide minimally adequate or reasonable training to ensure

safety and freedom from undue restraint.” Id. at 319.4

       But the existence of those rights was not the end of the analysis, because a patient’s

“liberty interests in safety and freedom from bodily restraint . . . . are not absolute; indeed to

some extent they are in conflict.” Id. at 319–20. The Youngberg Court explained:

       In operating an institution [for the intellectually disabled], there are occasions in
       which it is necessary for the State to restrain the movements of residents—for
       example, to protect them as well as others from violence. . . . And an institution
       cannot protect its residents from all danger of violence if it is to permit them to have
       any freedom of movement. The question then is not simply whether a liberty interest
       has been infringed but whether the extent or nature of the restraint or lack of absolute
       safety is such as to violate due process.

Id. at 320. To answer that question requires “balancing [a patient’s] liberty interests against the

relevant state interests.” Id. at 321. And “[i]f there is to be any uniformity in protecting these

       4
          Mr. Romeo argued that training would allow him to reduce his aggressive behaviors,
thereby increasing his physical safety and reducing the need for bodily restraints. Youngberg,
457 U.S. at 316–19.

                                                  10
interests, this balancing cannot be left to the unguided discretion of a judge or jury.” Id. Instead,

“decisions made by the appropriate professional are entitled to a presumption of correctness,” id.

at 324, and “liability may be imposed only when the decision by the professional is such a

substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base the decision on such a judgment,”

id. at 323; see also id. at 323 n.30 (“By ‘professional’ decisionmaker, we mean a person

competent, whether by education, training or experience, to make the particular decision at

issue.”). The Youngberg Court held that “the Constitution only requires that the courts make

certain that professional judgment in fact was exercised,” id. at 321 (quoting Romeo v.

Youngberg, 644 F.2d 147, 178 (3d Cir. 1980) (en banc) (Seitz, C.J., concurring)), in establishing

reasonably safe conditions of confinement, authorizing bodily restraints when necessary to

assure safety or provide training, and providing the training that “an appropriate professional

would consider reasonable to ensure . . . safety and to facilitate [the] ability to function free from

bodily restraints,” id. at 324.

        In DeShaney v. Winnebago County Social Services Department, 489 U.S. 189 (1989), the

Court explained the source of the rights that Youngberg announced. Youngberg, it said,

        . . . stand[s] . . . for the proposition that when the State takes a person into its
        custody and holds him there against his will, the Constitution imposes upon it a
        corresponding duty to assume some responsibility for his safety and general well-
        being. The rationale for this principle is simple enough: when the State by the
        affirmative exercise of its power so restrains an individual’s liberty that it renders
        him unable to care for himself, and at the same time fails to provide for his basic
        human needs . . . it transgresses the substantive limits on state action set by . . .
        the Due Process Clause. The affirmative duty to protect arises . . . from the
        limitation which it has imposed on his freedom to act on his own behalf. In the
        substantive due process analysis, it is the State’s affirmative act of restraining the
        individual’s freedom to act on his own behalf—through incarceration,
        institutionalization, or other similar restraint of personal liberty—which is the
        ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not


                                                  11
       its failure to act to protect his liberty interests against harms inflicted by other
       means.

Id. at 199–200 (citations omitted).

       Many circuits have read this language to imply that voluntarily committed mental

patients are not entitled to the “Youngberg rights” of food, shelter, clothing, medical care, safety,

and training because the state has not affirmatively acted to restrain their freedom. Campbell v.

State of Washington Dep’t of Soc. & Health Servs., 671 F.3d 837, 843 (9th Cir. 2011) (“Mere

custody . . . will not support a [due process] claim where a ‘person voluntarily resides in a state

facility under its custodial rules.’” (quoting Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir.

1995) (en banc)); Torisky v. Schweiker, 446 F.3d 438, 446, 448 (3d Cir. 2006) (“[A] custodial

relationship created merely by an individual’s voluntary submission to state custody is not a

‘deprivation of liberty’ sufficient to trigger the protections of Youngberg. . . . We hold that the

District Court erred in concluding that the state owes an affirmative due process duty of care to

residents of a state institution who are free to leave state custody.”); Walton, 44 F.3d at 1305

(“Although Walton’s freedom was curtailed, it was he who voluntarily subjected himself to the

rules and supervision of the School officials. Walton’s willful relinquishment of a small fraction

of liberty simply is not comparable to that measure of almost total deprivation experienced by a

prisoner or involuntarily committed mental patient.”); Monahan v. Dorchester Counseling Ctr.,

Inc., 961 F.2d 987, 991 (1st Cir. 1992) (“Because the state did not commit Monahan

involuntarily, it did not take an ‘affirmative act’ of restraining his liberty, an act which may

trigger a corresponding due process duty to assume a special responsibility for his protection.”);

Higgs v. Latham, 1991 WL 216464, at *4 (6th Cir. Oct. 24, 1991) (unpublished opinion) (“Mrs.

Higgs signed all the necessary papers for a voluntary admission, and the hospital did in fact



                                                  12
admit her on that basis. . . . Thus, there was no ‘affirmative act’ by the hospital to deprive her of

liberty, and therefore no triggering of the state’s constitutional duty to protect those it renders

helpless by confinement.”).5, 6

       Most circuits regard the voluntary or involuntary nature of confinement as a question of

fact rather than formality, determined by whether a patient is actually free to leave. See, e.g.,

Campbell, 671 F.3d at 843–45 (concluding that state did not restrict the liberty of a mental

patient so as to “convert [her] voluntary custody into involuntary custody”); Lanman v. Hinson,

529 F.3d 673, 681 (6th Cir. 2008) (confinement voluntary where “there is no evidence to suggest

that Lanman expressed a desire to leave the hospital and defendants refused to allow him to do

so”); Torisky, 446 F.3d at 446, 447 (noting that “even commitments formally labeled as

‘voluntary’ may arguably amount to de facto deprivations of liberty” and that “[c]ourts of


       5
          The Sixth Circuit has since noted that “Higgs is an unpublished opinion that does not
bind this court in the way that a published opinion does.” United States v. Tennessee, 615 F.3d
646, 653 (6th Cir. 2010); see also Lanman v. Hinson, 529 F.3d 673, 682 n.1 (6th Cir. 2008) (“At
this time, we do not need to decide whether the State owes the same affirmative constitutional
duties of care and protection to its voluntarily admitted residents as it owes to its involuntarily
committed residents under Youngberg.” (discussing Higgs as an unpublished opinion)).
       6
           It is unclear whether the Second Circuit accepts this line of authority. Before
DeShaney, it held that voluntary residents of a state school for the mentally retarded were
entitled to certain Youngberg rights. See Society for Good Will to Retarded Children, Inc. v.
Cuomo, 737 F.2d 1239, 1245 (2d Cir. 1984) (“We need not decide whether . . . residents are at
[the state school] ‘voluntarily’ or ‘involuntarily’ because in either case they are entitled to safe
conditions and freedom from undue restraint.”). Since DeShaney, it has distinguished that
holding on the grounds that “Society for Good Will dealt with the level of care required by the
Due Process Clause, but the state’s obligation to provide care and funding in that case was
undisputed. When, however, the government disclaims any entitlement to continued funding,
and then ends this funding, the reach of Society for Good Will is controlled by the Supreme
Court’s subsequent holding in DeShaney . . . .” Brooks v. Giuliani, 84 F.3d 1454, 1466 (2d Cir.
1996); accord Suffolk Parents of Handicapped Adults v. Wingate, 101 F.3d 818, 824 (2d Cir.
1996). The law of the Second Circuit therefore seems to be that when a state has committed
itself to care for voluntary patients, it cannot provide care below Youngberg standards—but that
circuit has not had occasion to reconsider the core holding of Society for Good Will in light of
DeShaney.

                                                  13
appeals have looked to the particular facts of an individual’s custody and, in particular, to

whether the individual is free to leave state custody”); Suffolk Parents of Handicapped Adults v.

Wingate, 101 F.3d 818, 823–24 (2d Cir. 1996) (commitment voluntary where plaintiffs would be

released on their request or the request of a parent or guardian); Kennedy v. Schafer, 71 F.3d

292, 295 (8th Cir. 1995) (remanding for factual determination whether a patient admitted

voluntarily “effectively bec[a]me an involuntary patient”); Walton, 44 F.3d at 1305 (student was

at a state institution voluntarily where he had “the option of leaving at will, an option that was

never withdrawn”); Monahan, 961 F.2d at 992 (commitment voluntary where “Monahan’s

complaint did not allege that he would have been barred from leaving [the state facility] upon

request”).7 Patients who are not free to leave a state facility are involuntarily committed to the

custody of the state and therefore entitled to the substantive rights set out in Youngberg.8

       Patients who are voluntarily confined do not enjoy Youngberg rights, but they

“nevertheless possess other substantive due process rights to be free of certain state interference

in their lives.” Torisky, 446 F.3d at 443. To begin with, as the cases cited above establish, the

state may not deprive voluntary patients of their liberty by confining them without or in excess

of their consent—to do so would render the confinement involuntary. And because the state’s



       7
          Although this circuit has not addressed the question directly, it has noted the
importance of “formal indicia in assessing whether custody attaches for DeShaney purposes.”
Smith v. District of Columbia, 413 F.3d 86, 94 (D.C. Cir. 2005) (citing Harris v. District of
Columbia, 932 F.2d 10, 14 (D.C. Cir. 1991) (“Harris had not been formally committed, either by
conviction, involuntary commitment, or arrest, to the charge of the District; therefore, unlike . . .
Youngberg . . . the government had not entered into a special relationship with Harris . . . .”));
see also Butera v. District of Columbia, 235 F.3d 637, 648 (D.C. Cir. 2001) (“In this circuit, the
custody exception is narrowly construed . . . .”).
       8
          Because none of these cases concerned an individual who was in fact held against his
will without the benefit of a formal commitment proceeding, the courts did not have occasion to
note the serious procedural due process concerns that such a situation would raise.

                                                 14
authority to confine a voluntary patient is defined by the scope of his consent, so too is its

authority to impose physical restraints. Of course, “when a patient provides valid consent to

enter a state mental treatment facility, there is no deprivation of liberty at all.”9 And “a

voluntarily confined individual who is bodily restrained by State actors, related to his consented-

to medical treatment,” has not had his constitutional rights violated “so long as a reasonable

person in the patient’s position would believe that he was free to leave the State’s care.”

Lanman, 529 F.3d at 681. But “the Due Process Clause would protect a voluntarily confined

individual from deprivations of liberty by state actors that exceed those authorized by his consent

to treatment.” Id. at 682–83; see also Torisky, 446 F.3d at 443 n.3 (“Clearly, voluntarily

committed persons have substantive due process rights to be free from unjustified or

unauthorized government interference with their fundamental rights, such as the right to court

access, to vote, and to marry.”); cf. Skinner, 316 U.S. at 541 (right to have children). Such

involuntary deprivations of liberty can only be imposed pursuant to constitutionally adequate

procedures.

       9
           Id. at 446 (citing Zinermon, 494 U.S. at 117 n.3). As the Supreme Court has
recognized, there are obvious “risks created by the application of the informed-consent
requirement to the special context of mental health care.” Zinermon, 494 U.S. at 134. The chief
“risk is that some persons who come into . . . mental health facilities will . . . be willing to sign
forms authorizing admission and treatment, but will be incompetent to give” informed consent.
Id. at 133. “Such a person thus is in danger of being confined indefinitely without benefit of the
procedural safeguards of the involuntary placement process, a process specifically designed to
protect persons incapable of looking after their own interests.” Id.; see also id. at 133 n.18 (“The
characteristics of mental illness thus create special problems regarding informed consent. Even
if the State usually might be justified in taking at face value a person’s request for admission to a
hospital for medical treatment, it may not be justified in doing so, without further inquiry, as to a
mentally ill person’s request for admission and treatment at a mental hospital.”). This is
especially troubling as “[p]ersons who are mentally ill and incapable of giving informed consent
to admission would not necessarily” qualify for involuntary commitment—they might, for
instance, not be a danger to themselves or others. Id. at 133. An incompetent individual cannot
give constitutionally adequate consent to his confinement or restraint, see id. at 135–36, but a
duly appointed guardian may consent in his place.

                                                  15
       To sum up: under Youngberg, the involuntarily committed enjoy the right to a minimum

level of care and safety, and the state may (sometimes and for some reasons) physically restrain

them. Seen one way, the state’s authority to impose bodily restraints is the necessary

consequence of its obligation to ensure reasonable safety. See Youngberg, 457 U.S. at 320; id. at

324 (emphasizing that the state “may not restrain residents except when and to the extent

professional judgment deems this necessary to assure [their] safety or to provide needed

training”). From another perspective, the minimal procedural protections to which an

involuntary patient is entitled before being restrained—the exercise of appropriate professional

judgment, and nothing more—are constitutionally tolerable only because he has necessarily had

the benefit of “a prior due process proceeding that significantly curtail[ed] his basic liberty

interest.” United States v. Charters, 863 F.2d 302, 306 (4th Cir. 1988) (en banc); see Addington,

441 U.S. at 424. The state has proven by clear and convincing evidence that the patient is both

mentally ill and a danger to himself or others, see Foucha, 504 U.S. at 80; the imposition of

bodily restraint when necessary to ensure his safety or that of others therefore “bear[s] some

reasonable relation to the purpose for which the individual is committed,” Jackson v. Indiana,

406 U.S. 715, 738 (1972); and in that “particular situation,” Morrissey, 408 U.S. at 481, the

exercise of professional judgment provides all the process that is due. But Youngberg’s limited

holding does not diminish the fact that “the protections of the Due Process Clause, both

substantive and procedural, may be triggered when the State, by the affirmative acts of its

agents, subjects an involuntarily confined individual to deprivations of liberty which are not

among those generally authorized by his confinement.” DeShaney, 489 U.S. at 200 n.8

(emphasis added).

       By contrast, the state may physically restrain a voluntarily committed individual if—and


                                                 16
only if—he has consented to the restraint. It may not confine or restrain him against his will

without affording him the benefit of a constitutionally adequate hearing. See Foucha, 504 U.S.

at 80; Addington, 441 U.S. at 424. Nor can the state infringe on other liberty interests unless the

patient has given his consent, Torisky, 446 F.3d at 443 n.3, or the state has demonstrated an

adequate justification by means of a fair procedure, see, e.g., Zinermon, 494 U.S. at 125.

       With that framework in mind, the court returns to the District’s argument that, under

Youngberg, it had the power to authorize the abortions of Jane Does I and III, limited only by the

requirement that it employ appropriate professional judgment when exercising its authority. As

discussed above, Youngberg governs cases of involuntary commitment, and provides the

government with the explicit authority to impose physical restraints pursuant to professional

judgment. The District’s argument from Youngberg has three fatal flaws. First, Jane Does I and

III do not allege that they were involuntarily committed. To the contrary, in their motion papers

they claim that they were committed voluntarily. Pltfs.’ Opp. at 15. Although the court must

confine itself to the pleadings on this motion to dismiss, it must also draw any reasonable

inferences in the plaintiffs’ favor. The court therefore assumes that the plaintiffs’ commitment

was voluntary, in which case the Youngberg regime simply does not apply. See Campbell, 671

F.3d at 843; Torisky, 446 F.3d at 446, 448; Walton, 44 F.3d at 1305; Monahan, 961 F.2d at 991.

Secondly—and centrally—even if Youngberg somehow applied in full, the District has offered

no argument that elective abortion is analogous to physical restraint in the ways that led the

Youngberg Court—which emphasized that the question of “severe intrusions on individual

dignity, such as . . . surgical intervention” was not before it, 457 U.S. at 313 n. 14—to conclude

that mere professional judgment provided procedural due process. It is not obvious that purely

elective abortion would ever be—as bodily restraint sometimes is—necessary to ensure the


                                                17
safety of the patient or others. Cf. Def.’s Mot. at 12 (discussing Rennie v. Klein, 720 F.2d 266,

269 (3d Cir. 1983) (en banc) (Garth, J.) (approving of the administration of antipsychotic drugs

to involuntary patients where “such an action is deemed necessary to prevent the patient from

endangering himself or others” (emphasis added))). As the District makes no argument in this

vein, the court will not take up the question itself but only note that a simple citation to

Youngberg does not prove that any patients, much less those committed voluntarily, must allow

the state to abort their pregnancies whenever its professional judgment dictates. Finally, even if

Youngberg did prove that proposition, the plaintiffs do not concede that professional judgment

was in fact exercised in authorizing their abortions. See Pltfs.’ Opp. at 15. The court obviously

cannot resolve that question against them on a motion to dismiss.

       Although Youngberg does not prove its case, the District could still prevail by showing

either that Jane Does I and III in fact consented to their abortions, or that those procedures were

ordered for adequate reasons, pursuant to constitutionally acceptable procedures. Here, those

inquiries—usually separate—are bound up in each other. No one suggests that Jane Does I and

III were competent to consent to their abortions; indeed, their counsel conceded their

incompetence on appeal. See Doe, 489 F.3d at 378. What the District argues instead is that it

was lawfully entitled to consent to the plaintiffs’ abortions. For that to be so, the District must

have acquired its authority by means of a procedure adequate to protect the plaintiffs’ right to

have children against unjustified government infringement. As the Second Circuit has

explained, “state procedures for obtaining consent . . . serve . . . to protect the substantive,

federal liberty interests” implicated by the authorization of medical procedures. Blouin ex rel.

Estate of Pouliot v. Spitzer, 356 F.3d 348, 363 (2d Cir. 2004). It goes without saying that

“federal law, not state regulations, determines the procedures necessary to protect that liberty


                                                  18
interest.” Id.; see also Vitek v. Jones, 445 U.S. 480, 491 (1980) (noting that the minimum

requirements of procedural due process are “a matter of federal law”). As Judge Kennedy noted

in granting the plaintiffs leave to amend their complaint, there is reason to think that even if the

District had provided procedures for determining incompetency and authorizing surgery that

were sufficiently protective of the plaintiffs’ right to bodily integrity, greater protections may

attach to decisions regarding their right to have children. Compare Doe, 593 F. Supp. 2d at 125,

with Doe, 815 F. Supp. 2d at 219–20.

       And in any case, the court cannot determine the adequacy of the procedural protections

provided to Jane Does I and III in the course of determining their incompetency and authorizing

their abortions without knowing what those procedures were—information that is not currently

before the court. For that reason and others discussed above, the court will not dismiss the

plaintiffs’ claims that their rights to have children were unlawfully infringed.

       Nor will the court dismiss the claim of Jane Doe II that her constitutional rights were

violated when the District ignored or overrode the wishes of her mother with respect to her

surgery. The validity of that claim is the law of this case. See Doe, 593 F. Supp. 2d at 125.

       The District’s remaining arguments can be discussed in brief. The District argues that

the plaintiffs’ right to decline medical treatment was not violated, and the plaintiffs concede the

point. See Pls.’ Opp. at 15. The District also notes, correctly, that despite the complaint’s

discussion of sterilization, see, e.g., 2d Am. Compl. ¶¶ 24–26, no plaintiffs allege that they have

been sterilized.10 Next, the District argues that the plaintiffs’ claims for violations of the

       10
           The court understands that the complaint’s references to sterilizations and putative
classes may presage a motion to join additional parties or to re-certify a class action. The court
will of course consider any such motions when made, but notes that the Circuit has held
injunctive relief to be unavailable, see Doe, 489 F.3d at 384, and that Judge Kennedy has held
class certification for damages claims to be inappropriate, see Doe v. District of Columbia, 2006

                                                  19
Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, D.C. Code §§ 7-

1301.01 et seq., should be dismissed. Under that law, “any person who violates or abuses any

rights or privileges protected by this chapter shall be liable for damages as determined by law,

for court costs and for reasonable attorneys’ fees.” Id. § 7-1305.14(c) (emphasis added). One

judge in this district has found that this language does not create a private right of action,

reasoning that “[a]lthough the statute may create a statutory duty, the fact that it allows for

damages ‘as determined by law’ suggests that the statute creates only a common law remedy,”

Karaahmetoglu v. Res-Care, Inc., 480 F. Supp. 2d 183, 187 (D.D.C. 2007), the court agrees that

“[t]he phrase ‘as determined by law’ merely specifies how the monetary damages available

under the statute are to be calculated” and that “the availability of a common law remedy does

not preclude the availability of a statutory cause of action,” Harvey v. Mohammed, 841 F. Supp.

2d 164, 190 (D.D.C. 2012); see also Doe, 815 F. Supp 2d at 220 (noting the “apparent provision

of a private right of action” in D.C. Code § 7-1305.14(c)).11 And, contrary to the District’s

argument, supplemental jurisdiction can be exercised over claims grounded in local law. The

District argues that the battery claims should be dismissed because the District’s consent to the

surgeries was substantively and procedurally proper, and so there was no harmful or offensive

touching. The court has already rejected that premise. Finally, the court declines to revisit

Judge Kennedy’s holding—which is, of course, the law of this case—that the statute of

limitations and the doctrine of laches do not bar these claims. See Doe, 232 F.R.D. at 30–32.


WL 2864483, at *5 (D.D.C. Oct. 5, 2006).
       11
          In its reply brief, the District for the first time raises the argument that the plaintiffs’
claims based on D.C. Code § 7-1305.13 should be dismissed, because that law only provides for
prospective relief. The court will not consider those arguments on this motion. See Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008); Jones v. Mukasey, 565 F. Supp.
2d 68, 81 (D.D.C. 2008) (both refusing to consider arguments first raised in a reply brief).

                                                  20
                                      IV. CONCLUSION

       This case involves weighty allegations that have long awaited resolution. For the reasons

discussed above, the court concludes that they must remain unresolved somewhat longer, and

will therefore deny the District’s motion to dismiss.

                                                           Rudolph Contreras
                                                           United States District Judge

Date: February 1, 2013




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