Elizabeth Morgan Act Declared Unconstitutional

Remember Dr. Elizabeth Morgan? She's the plastic surgeon who went to jail for two years rather than divulge the location of her daughter, Hilary A. Foretich. Morgan had accused her oral surgeon husband, Dr. Eric Foretich, of sexually abusing Hilary. A special act of Congress, the Elizabeth Morgan Act, freed her in 1989. The next year she moved to New Zealand, where Hilary was living with Morgan's parents. New Zealand granted Morgan sole custody. If she were to set foot in the U. S. again, by law she would have landed back in jail.

The Elizabeth Morgan Act has just been declared unconstitutional. The majority ruled that the Act violated the constitution by singling out Dr. Foretich. According to the opinion Foretich, Doris vs. USA,"there is no doubt that Congress targeted Dr. Foretich for application of the Act's unique child custody standard. The Government's concession on this point merely confirms what it otherwise clear: Congress singled out Dr. Foretich on the basis of a judgment that he committed criminal acts of child sexual abuse. The Act thus embodies legislative determinations that Dr. Foretich was a danger to his child and that the custody dispute had to be resolved against him in order to protect Hilary from future harm. In making those determinations, congress both inflicted extraordinary reputational injuries upon Dr. Foretich that support our jurisdiction over this lawsuit and imposed "punishment" within the meaning of the Bill of Attainder Clause. We therefore find that Congress violated the constitutional prohibition against bills of attainder by singling out Dr. Foretich for legislative punishment.

The dissent at the end of the opinion is an interesting read. It states that "Congress could have imposed burdens on Dr. Foretich without violating the Bill of Attainer Clause so long as it did so while pursing a legitimate objective and not in order to punish him." Congress could have passed the act "not to punish Dr. Foretich, but to protect Hilary from future abuse." One criticism of the Act is that if the record contained little or no evidence supporting the abuse allegations, than it would be reasonable to believe that the Act was punitive. However, there was sufficient evidence supporting the allegations. There was a fifty-fifty chance that Hilary had been abused. Congress could reasonably have believed that Hilary needed protection, including more protection than what was provided by D. C. courts. Indeed, D. C. Superior Court Judge Herbert Dixon "refused to hear the mountains of evidence in the case, granting unsupervised visitation." Some of the evidence he refused to hear included "transcripts of a hearing regarding the alleged sexual abuse of Dr. Foretich's other daughter [from a previous marriage]." Prior sexual abuse allegations were seen as irrelevant, despite the fact that there was a permanent restraining/no contact order against him in Fairfax Co. Virginia.

The media never reports the previous case.