Hastings Journal on Gender and the Law


Abortion for women with diminished capacity is a complex, highly charged issue. Because many women with diminished capacity cannot give informed consent, an abortion cannot be performed without some form of legal intervention. Florida requires women with diminished capacity obtain a court order to authorize the procedure. New York allows a parent or guardian to consent directly on behalf of the woman. In California, conservators have general authority to consent to surgery on behalf of the woman so long as she does not object. In developing these state-specific legal interventions, it is important to balance the desire for reproductive freedom against the need for protection from abuse. An ideal state policy will be mindful of the goals of clarity, individualization, expediency, and oversight.