There is plenty of fodder for celebrity gossip in Wednesday’s court hearing over the conservatorship imposed on Britney Spears by the California courts since 2008, which places her father in charge of the veteran pop star’s finances and broader aspects of her life. It’s an incongruous sight: a 39-year old mother of two who has continued to churn out new music and rake in tens of millions of dollars from concert performances but is not treated by the law as an adult capable of looking after herself. There were legitimate concerns for Spears’s mental well-being that led to the conservatorship at the time, as well as awarding custody of her children to their father. I confess that I do not have a fully informed view on whether there are still good reasons for it today. But this part of her statement to the court should shock us if it is true:
I want to be able to get married and have a baby. I was told right now in the conservatorship, I’m not able to get married or have a baby, I have a (IUD) inside of myself right now so I don’t get pregnant. I wanted to take the (IUD) out so I could start trying to have another baby. But this so-called team won’t let me go to the doctor to take it out because they don’t want me to have children – any more children.
This should never happen. Step back and ask yourself: Should we be able, even temporarily, to sterilize a woman against her will on grounds of being mentally unwell? There are grave problems of both morality and individual liberty with that. We rightly today condemn the Supreme Court for Buck v. Bell, which in 1927 upheld a Virginia forced sterilization law with the cold eugenic logic that “three generations of imbeciles is enough.” If Spears was so unstable that she required being committed to a mental institution, we could at least see why there are two sides to that argument, even if the arguments are ones I would not find persuasive enough to take such an extreme step. But I cannot see what argument there could be for a court in the United States of America to sanction a regime under which an adult woman who is well enough to ply her trade in society can be forced to carry a contraceptive implant she does not want. This is one area on which pro-lifers and conservative Christians should be in complete agreement with Planned Parenthood, which issued a statement supporting Spears: “No one should be pressured into a decision around whether or not they should use birth control, or which method to use and when.”
We should also be asking: If our legal system can do this to Britney Spears, how many other women is it happening to? The California supreme court, in the 1985 decision Conservatorship of Valerie N, concluded that there was a constitutional right to choose sterilization, and reasoned that a woman who was mentally disabled and incapable of making her own decisions should have a right to have her conservators decide that she be sterilized. Rose Bird, the famously liberal chief justice of that court, issued a fiery dissent:
Today’s holding will permit the state, through the legal fiction of substituted consent, to deprive many women permanently of the right to conceive and bear children. The majority run roughshod over this fundamental constitutional right in a misguided attempt to guarantee a right of procreative choice for one they assume has never been capable of choice and never will be…
The majority opinion opens the door to abusive sterilization practices which will serve the convenience of conservators, parents, and service providers rather than incompetent conservatees. The ugly history of sterilization abuse against developmentally disabled persons in the name of seemingly enlightened social policies counsels a different choice. …The history of involuntary sterilization of incompetent, developmentally disabled individuals over the past 80 years is a history of wholesale violations of constitutional rights carried out with the approval of the highest judicial tribunals.
Bird’s warning went unheeded; the California legislature instead reacted by enacting a statutory scheme to authorize such sterilizations, albeit only when a court finds proof beyond a reasonable doubt that the person under conservatorship “is incapable of giving consent to sterilization . . . and the incapacity is in all likelihood permanent.” Several states have similar laws. In 1999, an intermediate appellate court in California struck down a portion of that statute on the theory that it made it too difficult for conservators to prove that a woman should be sterilized on the theory that she was legally incapable of consenting to sex.
That clearly is not what is going on with Britney Spears. A separate California statute with a clear-and-convincing-evidence standard of proof applies to medical consent by conservators in general, and in 2013, another California appeals court concluded that a conservator could consent to a hysterectomy and oophorectomy if sterilization was an incidental rather than primary purpose for otherwise-legitimate medical procedures. Perhaps that is the legal thread upon which Spears’s conservatorship is overruling her expressed wishes. Either way, the high-profile nature of her case should be an occasion for us to rethink the scope of what the law allows to be done to women’s capacity to bear children.