Thread by @cagoldberglaw

I have so many thoughts about this. When I ran the legal department at @verainstitute Guardianship Project, we had two major situations involving the reproductive rights of people who the court had deemed incapacitated. #FreeBritney 🧵 nytimes.com/2021/06/24/hea…

The first involved a young woman who experienced a TBI as a pedestrian hit by a car. She was hospitalized. And they discovered she was three months pregnant and tested positive for methampetamines. This was news to her too.

Hospital petitioned for a guardian to make medical decisions about the birth. We were appointed. It was month 6 or 7 by then. My first concern was why the hell the mom had been a captive in this hospital x 4 months. Did not leave once. The hospital had barely been doing any

brain rehab with her even though this was THE CRITICAL time in a TBI patient's healing. The hospital said brain rehab put the baby at risk. I also learned hospital never had serious discussions w/ her about having an abortion in that it could mean a better chance of her recovery.

It was clear she'd been in the hospital w/o break b/c liability. She still had the ability to make her wishes known. She was verbal, could move and walk. But memory was bad. Next thing i learned was that Child Protective Services had already opened a case. For a fetus!!!!

Conspiring w/ hosp, CPS planned to take the baby away from mom at birth. Well, I put a stop to that. CPS CAN intervene if a baby tests positive for drugs. But I knew that by the time this baby was coming, mom would have been clean for like 6 months. The mom did NOT want to

give up her baby. She wanted her aunt to care for the baby until she felt better. The aunt was game and we opened a separate adoption case. The court appointed a lawyer for the fetus. We swatted CPS like a mosquito and the court approved the aunt to adopt.

Then it came time to deal with the hospital. They wanted a C-section and for the baby to be immediately removed from the mom for fear she would throw or drop the baby. We had court orders for every detail -- the medicine she'd take during the c-section, her right to see

the baby as soon as she woke up from the C-section, her right to hold the baby, breastfeeding, how often the baby would be brought to her while recovering from the C-section. She gave birth to a beautiful healthy little boy named J. He was born drug-free. The aunt took

him home. We had a few status conferences after that. The mom recovered a lot of brain function after the baby was born, thank g-d and was discharged from the hosp.

The second case involved a 16 year old we were guardian for. I adored that kid. She entered the system after both

parents died. And her remaining grandfather and his friends had sexually abused her. We have testimony from when she was 11 years old of him saying SHE seduced THEM. And shockingly (not shockingly?) nobody was charged because she was found to be inconsistent. We'd been her

guardian for about 2 years when she got pregnant. We were in the process of closing out the guardianship because she had full capacity to take care of herself. She was finally out of a half-way house and was starting school. I was so worried about her having a baby

and nobody to help her. The dad had hung up on her when she told him the news. We had a serious conversation about abortion. She was adamant she wanted the baby. She told me "I will finally have somebody who loves me." She was 18 without a job or education or $ and really

alone in the world. But this was her decision and only hers. She gave birth to a beautiful healthy baby boy.

Getting back to Britney, there's no way a court would have had authority to force her to get an IUD. Any medical decisionmaking over the objection of a patient

with a conservator requires court order and to get a court order would require a hearing and testimony and doctors justifying it. And it would be appealable. It's not clear who knew what when -- but if guardian, guardians' lawyer, doctor, her lawyer or judge -- understood

the IUD was being inserted against her wishes, they'd each be on the hook. Now that they know she does not want it, there should be NO legal obstacle in her way to go to her gyno and get it removed STAT. She does not need a court order for that most basic of human rights.

In my experience, here in NY, the guardianship system certainly does NOT adjudicate away another person's reproductive decisionmaking decisions. HOWEVER, it requires conscientious players to protect people who've been adjudicated incapacitated because there's

so much information assymetry between what the professionals (guardians, lawyers, judges) know and what the incapatitated person (IP) knows. So when the judge makes a wink wink nudge nudge comment to Britney's OWN lawyer suggesting he refrain from telling her she has the right

marry, that's the prevailing attitude. The whole system is very paternalistic with everybody knowing better than the IP. And exploiting their lack of information and making them think they have far fewer rights than they actually do. Again, though, that's where their own

lawyer is supposed to come in. The lawyer of the IP is the one person who's not supposed to be substituting in their judgment. But rather, they're supposed to be advocating for what the IP wants -- even if they don't personally feel it's advisable. Getting married and having

babies are seen as such fundamental rights, though, they don't ever require permission from anybody including a guardian or court. But removal of an IUD is a medical procedure so even though it's in furtherance of a fundamental right, if there is a guardian of person with the

authority to make medical decisions, their permission would likely be necessary. And if it were wrongly withheld, Britney's lawyer should have been screaming from the mountaintops and demand court intervention. And also, all guardian/conservator powers are supposed

to be narrowly tailored to the functionality of the IP. So of course she should not need a guardian involved at all and particularly not for something as personal as medical decisionmaking.

#FreeBritney