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Last week’s ruling by the U.S. Court of Appeals for the D.C. Circuit in Foretich v. United States was extraordinary in many ways. It came fully 20 years after Eric Foretich and Elizabeth Morgan began litigating in a D.C. family court over custody of their then-baby daughter, Hilary, in a case that eventually featured explosive allegations of sexual abuse and that generated headlines around the world. The ruling also marked a rare application of the constitutional prohibition on bills of attainder — essentially a legislative decision to inflict punishment on a specific individual. On Dec. 16, the D.C. Circuit ruled that the “Elizabeth Morgan Act” passed by Congress in 1996 was a bill of attainder, because it singled out Foretich as unfit to have visitation with his daughter and thus branded him as guilty of the sexual-abuse charges leveled by his ex-wife Morgan. But while the three-judge appeals panel agreed on the constitutional result, it actually split 2-1 on the basic issue of credibility that divided many observers as the custody case played out in the D.C. courts throughout the 1980s. The question: Should Morgan, a respected plastic surgeon, be believed in her allegations that Foretich, an equally respected oral surgeon, had repeatedly abused Hilary almost from the time she was in diapers? In an opinion written by Judge Harry Edwards and joined by Judge A. Raymond Randolph, the D.C. Circuit concluded that Congress singled out Foretich, now 61, by associating him with criminal acts of sexual abuse “despite the repeated and unwavering rejection of such claims by every court that considered them.” Since the abuse charges had been so definitively disproved, the two judges reasoned, Congress could not have been acting to protect Hilary from abuse, but only to stigmatize and punish Foretich, which it cannot constitutionally do. The concurring opinion by Judge David Tatel takes a quite different view. Tatel argued that there was in fact significant evidence of abuse in the record. He notes that a D.C. Superior Court judge once found the evidence “in equipoise.” Thus, Congress could well have had in mind the protection of Hilary, a legitimate goal. However, Tatel concluded, Congress went too far since it barred Foretich from even having supervised visitation with his daughter, an arrangement that would protect her from abuse. Therefore, the only plausible motivation for the Elizabeth Morgan Act was to punish Foretich, and Tatel agreed that it was a bill of attainder. Since Hilary — who now goes by the name Ellen Morgan — is 21 and no longer under the jurisdiction of a family court, the appeals ruling has no impact on visitation or custody issues. But Foretich, who practices in McLean, Va., says that the decision is important to him because it vindicates his reputation. “Hearing about this ruling made me feel whole and helped me put closure to this thing,” Foretich says. “I would like to bury the hatchet with Elizabeth Morgan. I have no animosity against her in my heart. It’s time for people to get on with their lives.” Stuart Delery, a partner at Wilmer, Cutler & Pickering who represents the 55-year-old Morgan, did not return a call for comment.

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