Is the forced contraception alleged by Britney Spears legal?

Among the stunning assertions that pop star Britney Spears made to a Los Angeles probate judge this week, as she sought to end her protracted conservatorship, was one that shook experts in guardianship law and reproductive rights deeply. She said a team led by her father, who is her conservator, prevented her from having her IUD birth control device removed because the team did not want her to have more children.

“Forcing someone to be on birth control against their will is a violation of basic human rights and bodily autonomy, just as forcing someone to become or stay pregnant against their will would be,” said Ruth Dawson, a principal policy associate at the Guttmacher Institute, a research group that supports reproductive rights.

Court-condoned compelled contraception is rare in conservatorship. But the specter it raises — forced sterilisation — does have a grim, extensive history in the United States, especially against poor women, women of colour and inmates. In the early 20th century, the state-sanctioned practise was upheld by the US Supreme Court.

Although the court moved away from that position in the 1940s, and consensus arose through the growing canon on informed consent that forced sterilisation was inhumane, the practice continued to be quietly tolerated.

Finally, by the end of the 1970s, most states had repealed laws authorising sterilisation, although allegations of forced hysterectomies and tubal ligations on women in immigrant detention centres continue to be raised. It wasn’t until 2014 that California formally banned the sterilisation of female inmates without consent.

The scant law on the question in conservatorship indicates what an outlier the Spears case may be. In 1985, the California Supreme Court denied the petition of guardian parents of a 29-year-old woman with Down syndrome who wanted her to undergo a tubal ligation.

Typically, a conservator has temporary control over the finances and even medical care of an incapacitated person. Experts underscored that Spears’ assertion is unverified. But if it’s accurate, they said, the most likely rationale, however suspect, might be that Jamie Spears, her father, wants to protect her finances from a baby’s father, potentially her boyfriend, who is reportedly at odds with Jamie Spears.

If a guardian fears that a ward will make financially unwise choices, “the remedy is not to say they can’t procreate,” said Sylvia Law, a health law scholar at New York University School of Law. “It’s unspeakable.”

According to experts in trust and estate law, the handful of cases in which a guardian, usually a parent, has asked a court to order contraception involved severely disabled children.

“Such a child would lack the capacity to understand that a penis and vagina could make a baby,” said Bridget J Crawford, an expert on guardianship law at Pace University law school. “And that certainly is not the Britney Spears case.”

Eugenics was a leading rationale for female sterilisation. In the 1927 case Buck v. Bell, the Supreme Court upheld the right to sterilise a “feeble-minded” woman who had been committed to a state mental institution, with Justice Oliver Wendell Holmes infamously writing, “Three generations of imbeciles are enough.”

Although the opinion was never formally overturned, in a 1942 case, Skinner v Oklahoma, which challenged forced sterilisation of certain convicted criminals, Justice William O Douglas, writing for a unanimous court, said that the right to procreate was fundamental. “Any experiment the state conducts is to his irreparable injury,” he wrote. “He is forever deprived of a basic liberty.”

While Spears has not been sterilised, Crawford said, if she is being prevented from getting her IUD removed, that would be a proxy for sterilisation, in particular because she testified that she wanted to bear more children.

Melissa Murray, who teaches reproductive rights and constitutional law at New York University law school, pointed to another unnerving element in the allegation by Spears, who, at 39, has been under her father’s guardianship for 13 years. Murray said that Spears, an adult, appeared to be living a legally constructed childhood.

“It’s unusual that her father is making the kinds of decisions we’d expect a parent to make for a teenager,” she added.

© 2021 New York Times News Service