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Judge rules pregnant disabled woman is incapacitated

Decision paves way for appointment of guardian for fetus

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ORLANDO, Florida (CNN) -- A Florida judge ruled Monday that a disabled woman who became pregnant after being raped is mentally incapacitated and unable to make a decision for herself or her fetus.

The decision paves the way for a guardian to be appointed for the woman. The guardian could then decide whether the woman, 22, referred to in court as J.D.S., should continue her pregnancy, now nearly six months along.

The judge Monday threw out a petition by the state of Florida, which was seeking to have a guardian appointed for the fetus.

Judge Lawrence Kirkwood had already ruled that Florida law does not allow for the appointment of a guardian for a fetus.

Florida Gov. Jeb Bush has urged the court to appoint a guardian for the fetus. The state of Florida and the Department of Children and Families were seeking to argue that before Kirkwood.

"It's appropriate to have someone looking after the rights for the child as well as the mom, and that's our intent," the governor has said.

Several civil liberties and abortion rights groups filed petitions to block the state's petition, including the American Civil Liberties Union, the ACLU of Florida, the Florida National Organization for Women, and the Center for Reproductive Rights. The judge ruled their petitions were moot because he had rejected the state petition.

The woman has been living in state care. She has no known relatives, and police said she has the mental capacity of a 1-year-old.

On Friday, Kirkwood rejected a petition filed by Orlando homemaker Jennifer Wixtrom, who petitioned the court to represent J.D.S.'s fetus.

Kirkwood said in rejecting Wixtrom's petition, "There is no basis in the (Florida) statutes or case law for appointment of a guardian for a fetus."

The ruling paralleled that of a circuit court judge who last week in Miami rejected an anti-abortion group's effort to represent the fetus of a disabled, deaf rape victim with the mental capacity of a 4-year-old. The fetus was aborted Thursday in the sixth month of pregnancy.

In her court filing, Wixtrom told the judge a guardian was needed "to ensure the safety, well-being, health and proper pre-natal care for the fetus" and added, "a guardian must be appointed as the unborn child may be placed in immediate danger and in life-threatening situations unless his or her interest (sic) are protected."

In response, the judge ruled, "Florida statutes simply do not support this allegation."

Kirkwood added that according to Florida case law, "appointment of a guardian ad litem for a fetus is clear error," a point established in a 1989 Florida Supreme Court ruling.

A court administrator said the governor "has no legal standing in this case. The Department of Children and Family does."

Initially, an Orlando lawyer for DCF told the court the agency would not pursue a guardian for the fetus after the rape case came to light. Then, the governor said, he decided to get involved along with DCF Secretary Jerry Regier because he did not want a "mid-level attorney" determining policy for the state.

A spokesman for Regier said the issue might be a test case for the courts.

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