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A district judge removes abortion as an option for a mentally disabled women, backing away from his original stance.
BY JOAN FRAWLEY DESMOND
RENO, Nev. — When a Reno, Nev., group-home manager called Amy and William Bauer to report that their daughter was pregnant, the news set in motion a chain of events that almost ended with a court-mandated abortion, despite the Bauers’ objections.
But three weeks later, during a Nov. 14 hearing at a Washoe County District courthouse, Judge Egan Walker told the Bauers that abortion was no longer an option for their 32-year-old daughter Elisa’s crisis pregnancy. The news offered an unexpected reprieve for the embattled family and their supporters in the pro-life community.
“We won after a very welcome, but sudden, change of heart: Judge Walker announced that abortion is no longer being considered as an option in this case,” said Jason Guinasso, the Bauers’ lawyer.
From the start, the case featured two starkly different responses to Elisa’s pregnancy.
The judge initially asserted that an abortion offered the best solution for the woman, who has the mental and emotional capacity of “a 6-year-old,” according to Guinasso, and had been taking powerful medications for epilepsy and bipolar disorder that could affect the health of her unborn child.
However, the Bauers, who serve as the legal guardians for their Costa-Rican-born adopted daughter, defended their right to abide by their moral and religious beliefs, which prohibit abortion.
When the judge first made his views known during a hearing that addressed issues related to Elisa’s pregnancy, his stance sparked fears that she would be required to undergo a “forced abortion.” Pro-life websites quickly raised the alarm, as the family’s lawyer requested but failed to have the state Supreme Court dismiss the case.
But as Guinasso marshaled expert opinion from doctors and service providers, who outlined a plan for monitoring Elisa’s pregnancy, her medication needs and the health of her unborn child, Walker finally relented.
“The medical evidence presented shows that the risks regarding her epilepsy and bipolar disorder, and the medications used to treat those conditions, were not significant or substantial and could be managed with appropriate medical attention throughout the duration of her pregnancy,” said Guinasso, who became involved in the case through a referral from the public interest group Alliance Defending Freedom.
He expressed relief that the judge’s ruling upheld the right of legal guardians to make appropriate choices for vulnerable people under their care.
“It was startling for me that the court would compel anybody to have an abortion. In circumstances like this, you would usually leave that decision up to the woman and her family,” said the lawyer.
Stephen Napier, a consultant with the Philadelphia-based National Catholic Bioethics Center, which advises Church leaders, hospital administrators and laypeople concerned about a host of ethical issues in health care and related fields, welcomed the judge’s reprieve and said the case was unusual.
“I haven’t heard of any case like this getting to the level of a court hearing,” said Napier.
“I am glad to know that the judge has not pressed this issue,” he added. “The mental disabilities of the mother should not be a death sentence for the unborn child.”
Napier noted that he had not been asked to consult on the case and thus did not have access to any details that might provide further context for the unfolding events. But he suggested that any review of the case should focus on improving supervision of the young woman.
In fact, the case provides a window into the challenges and heartache experienced by many parents like the Bauers who struggle to protect adult children with mental and emotional disabilities.
Civil-rights law limits the power of caregivers. Families worry that a loved one could be vulnerable to sexual exploitation or other forms of coercion.
It is not known whether Elisa Bauer’s pregnancy was the result of sexual assault or to what extent any sexual partner knowingly exploited her vulnerable status. But while abortion is frequently presented as the best solution in such cases, Amy and William Bauer raised their two biological children and six adoptive children from Costa Rica — including Elisa — to embrace the sanctity of human life.
After their daughter’s pregnancy was brought to the attention of Walker, the Bauers realized they would have to convince the court that their daughter would choose life — if only she were able to fully articulate her family’s core beliefs.
“I have helped my daughter to understand what is happening about the baby and about the need for adoption,” said Amy Bauer during a telephone interview.
“She realizes that it will take time for the baby to come out, and she understands that she may not be able to take care of the baby.”
Many years ago, when the Bauers first agreed to adopt six siblings from Central America, they knew it would be a challenge, but they were shocked to discover that several children were severely impaired by fetal alcohol syndrome. Still, the Bauers persevered, and seven of their offspring are now married or living independently.
Elisa, however, constantly tested the Bauers’ ability to keep her safely at home, and, in her mid-teens, they placed her into the first of a string of supervised facilities and foster homes that provided needed social services and a secure environment for mentally disabled adolescents.
As Elisa advanced in years, her tendency to wander off and engage in sexual encounters posed a dilemma for the Bauers, who were advised to approve a prescription for an injectable contraceptive. After initially agreeing to the doctor’s orders, the Bauers later determined that they could not in conscience keep her on the medication.
They stayed in close touch with Elisa, bringing her home on weekends and driving her around on errands. But that pattern was disrupted over the summer when a broken leg prevented Amy Bauer from spending time with her daughter.
“After we were told about the positive pregnancy test, we took Elisa to the neurologist who had prescribed her seizure medication,” recalled Amy Bauer.
The neurologist feared that his patient might have been sexually abused and alerted adult protective services, which ordered a hearing on her case.
Napier of the National Catholic Bioethics Center noted that some persons with significant mental disabilities are not capable of full consent to sexual relations.
If “her mental abilities are compromised, she cannot give valid consent to sexual relations. And if she cannot give valid consent, any sexual intercourse would be, by definition, rape,” said Napier, while stressing that he did not have access to the young woman’s medical records or any other details related to her case.
When the Bauers arrived for the first scheduled court hearing, they were shocked that the judge showed little regard for the family’s pro-life values.
Summarizing Walker’s initial position, Guinasso said the Bauers were told: “Your faith has no place in this court. The decision on whether to have an abortion or carry the pregnancy to term needs to be based on the best medical science.”
Accordingly, Guinasso was surprised and relieved when the judge later reversed course.
“What I am describing is a miracle. If you had been in the courtroom three weeks ago, you would have been discouraged,” he said.
“The attorney appointed by the judge to argue for abortion and the doctor called before the court to support the abortion framed the medical and legal issues in such a way as to make this week’s outcome seem impossible,” added Guinasso.
“The doctor said it was society’s responsibility to protect vulnerable people, and he couldn’t think of a better way to protect and serve her than to have her undergo an abortion and have her tubes tied.”
Yet Elisa had told family members “on numerous occasions that she understands that there is a life growing in her belly, and she wants to keep that baby,” reported Guinasso. “She told me, ‘No kill baby.’”
Guinasso repeatedly reminded the court that the Bauers, as legal guardians, retained sole authority over decisions regarding Elisa’s health care. And he argued that Elisa Bauer shared her parents’ values.
Ultimately, the judge agreed to a series of evidentiary hearings that allowed the Bauers an opportunity to marshal their case for sustaining the pregnancy. They soon assembled a group of experts to back their case and reported that six couples had stepped forward to be considered as adoptive parents for Elisa’s child.
Alison and John Oertley, one couple who had already completed paperwork for adopting a child with special needs, were among the six couples. Alison Oertley told the Register that she learned about the family’s plight after one of the Bauers’ daughters, a graduate of Franciscan University of Steubenville, alerted the college’s alumni network.
The Oertleys had been prepared to testify at the Nov. 14 evidentiary hearing and will now await future discussions with Elisa’s family.
At present, the Bauers are busy working with their team of physicians and service providers to establish a plan for keeping their daughter and her unborn child healthy and safe.
It has been a long three weeks for Amy Bauer, who said that she felt supported by prayers from many supporters and that faith in God had always guided her through the challenges of family life.
“We have an image of Our Lady of Guadalupe, and when I turned to her [in prayer], she told me, ‘You are going to suffer heartache, but I will be with you,’” said Amy Bauer. “God is with us.”
Joan Frawley Desmond is the Register’s senior editor.