By Michael Phillips | Father & Co. | The Clancy Case
Massachusetts is again being asked to decide that postpartum psychiatric illness deserves formal legal mercy — in criminal court. The same diagnosis, raised in family court, still routinely works the other way.
The Bill the Clancy Case Revived
A bill from Rep. Jim O’Day and Sen. Joan Lovely has been filed and re-filed in the Massachusetts Legislature for years, sent to study in each of the last three sessions without ever moving. It would require courts to screen defendants charged with crimes within 12 months of giving birth for perinatal mood and anxiety disorders, and would let judges treat postpartum psychosis and postpartum depression as mitigating factors in sentencing — including in cases that could otherwise mean life without parole. It would also let women already convicted petition for resentencing if their postpartum condition was never considered the first time.
The bill got its first real attention in the days right after the 2023 killings, then stalled — sent to study in each of the following three legislative sessions without a vote. As of this August, with Clancy’s trial back in the news and testimony centered on her mental health, advocates are working to re-file it for the next session. It still hasn’t passed. Only Illinois currently has a comparable law on the books.
Set aside, for a moment, whatever you think the Clancy jury should decide. The legislative direction itself is worth naming plainly, even while the bill remains stalled: Massachusetts advocates are actively pushing to formally recognize that a mother’s undiagnosed or undertreated postpartum psychiatric illness can explain — and legally mitigate — even the most catastrophic conduct. That’s the criminal system being asked to extend more mercy for the illness and more scrutiny of the care that failed to catch it.
The Same Diagnosis, Read Backward
“The same label — perinatal psychiatric illness — is being written into one statute as grounds for compassion and functions in another courtroom, unwritten but routine, as grounds for suspicion.”
Walk that same diagnosis into a family court custody hearing and the reception is often reversed. A documented history of postpartum depression or psychosis doesn’t disappear from the record — it becomes exhibit material for the other side. Family law practice guides are blunt about this: a parent’s mental health history “may sway a case” toward the other parent, particularly where a condition required hospitalization or is characterized as involving instability, even when the parent is stable, treated, and has no history of harm to the child. Courts are instructed to weigh mental health only as it bears on parenting capacity — but the disclosure itself is what triggers the scrutiny, and the burden of proving that a diagnosis doesn’t equal danger falls on the parent who was honest enough to seek treatment for it.
This is the same structural failure Father & Co. documented in Diagnosis as Evidence: a clinical label doing the evidentiary work of an individualized dangerousness finding, without the forensic support that finding is supposed to require. The Clancy legislation makes the inversion impossible to miss. The same label — perinatal psychiatric illness — is being written into one statute as grounds for compassion and functions in another courtroom, unwritten but routine, as grounds for suspicion.
“A clinical label [is] doing the evidentiary work of an individualized dangerousness finding.”
Why the Inversion Exists, and Who It Actually Serves
The honest reason these two systems land in different places isn’t hypocrisy — it’s that they’re answering different questions. Criminal court asks whether the illness explains past conduct badly enough to reduce punishment for it. Family court asks whether the illness predicts future risk to a child. Those are legitimately different inquiries, and there are real cases where a parent’s mental health history should factor into a custody determination.
“The system that’s supposed to protect children ends up punishing parents specifically for having taken the responsible path.”
But that legitimate distinction doesn’t explain the actual pattern on the ground, which is this: disclosure itself — not an individualized finding of impairment, not expert testimony tied to the child in question — regularly becomes the evidence. A parent who never sought care has no clinical record to be weaponized. A parent who sought care, got a diagnosis, and got better has created a permanent exhibit for the other side to introduce years later, disconnected from their current fitness. The system that’s supposed to protect children ends up punishing parents specifically for having taken the responsible path.
Run the swapped-jerseys test on this: does the pattern change if it’s a father with a documented depressive episode after a difficult custody battle, rather than a mother with postpartum psychosis? It doesn’t. Any parent whose honest disclosure becomes the primary exhibit against them, regardless of actual current fitness, is describing the same structural defect — a system that extracts information under the promise of getting help, then uses that same information as a weapon the moment custody is contested.
“Any parent whose honest disclosure becomes the primary exhibit against them … is describing the same structural defect.”
The Clancy case will not resolve that contradiction. But it has put an uncomfortable spotlight on it: the same legislature moving to formally excuse conduct on the grounds of undiagnosed postpartum illness has never gotten around to writing comparable protection into the statute that governs whether a treated, stable parent gets to keep their kids.
“The same legislature moving to formally excuse conduct on the grounds of undiagnosed postpartum illness has never gotten around to writing comparable protection into the statute that governs whether a treated, stable parent gets to keep their kids.”
Sources: Reporting from the Boston Globe, WBUR, NBC10 Boston, Boston 25 News, and the MGH Center for Women’s Mental Health on the O’Day/Lovely legislation (H 1924/S 1171); general family law practice guidance on mental health disclosure in custody proceedings.
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