Debate Forum 10/15

Debate Forum 10/15

Debate Center: Does Amish family get fair treatment from court-sanctioned medical care?

 By Alex Culpepper

 Illustration: Dayton artist Elliot Ward

Sarah Hershberger is a 10-year-old girl who lives in northeastern Ohio, and she has leukemia. She has been undergoing chemotherapy at Akron Children’s Hospital, and doctors say with the treatment she has an 85 percent chance of survival. Sarah’s story, however, takes a more complicated turn because her parents initially opted for the chemotherapy, but later sought to end it after witnessing the side effects. As a result, an Ohio court and the Children’s Hospital stepped in to gain temporary guardianship of the girl to resume the chemotherapy, because without it they say she will soon die. This latest court ruling overturned a previous judge’s decision to let the parents make the medical decisions for their daughter and end the chemotherapy.

This story has also gathered interest because Sarah and her family are Amish and live in a small Amish community near Akron. Contrary to popular belief, Amish people are not always averse to modern medical treatments, but they tend to favor natural remedies and leave a person’s fate to what they consider God’s will. The Hershbergers now must abandon their natural healing for Sarah because they have been ordered by the state to relinquish control over medical decisions for their child, thus handing them over to the hospital. This situation has begun a debate about the extent of parents’ rights regarding medical decisions about their children and the power of the state to intervene concerning decisions about minors’ medical treatment.

Supporters of the court’s decision to grant the hospital guardianship over Sarah claim the hospital is “morally and legally obligated to ensure the girl’s safety” when a proven and effective treatment can save her life. They say if this case involved an adult, then it would be different, but children do not have the legal standing or maturity to make those decisions for themselves. They say in cases involving life-or-death decisions about healthcare, the state must place child welfare over parental wishes.

Opponents of the court’s decision believe the hospital and the state have gone too far in this case and have trampled on the Hershberger’s constitutional rights. They say the parents have not been proven unfit and should retain the power to make medical decisions for their child. They go on to add the chemotherapy is not 100 percent effective, and if it does not work, the girl will spend the rest of her days in agony if she stays with the chemotherapy.

Other than pitting people against each other over the issue of parental rights, this case sets a legal precedent that might decide the outcome of any further cases involving parental rights and medical treatment. And the next time a similar case comes forth, supporters of hospitals seeking guardianship for underage patients will most likely point to this decision to argue their position, and opponents will cite constitutional shortcomings and state-sponsored hostility toward parental rights.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

 

Debate Forum Question of the Week:

An Ohio court has granted a hospital the power to treat a 10-year-old Amish leukemia patient with chemotherapy against her parents’ wishes. Does the ruling unlawfully deprive parents the right
to make medical decisions for their child?

Debate Left: A child belongs to the parents, not the courts

By Marianne Stanley

 In a country that logs more than three million child abuse calls each year, along with more than five child deaths each day from parental abuse and allows more than 20 million children to endure the excruciating daily pain and misery of too little to eat rather than allot enough of its budget to feed them, doesn’t it seem a bit strange that a hospital actually took a set of admittedly loving parents to court to ensure that the pharmaceutical company can pump chemo into their child?

After all, there’s no indication that the courts, the government or our hospitals have any heart whatsoever when it comes to providing for those in need. Why now? Why this child? While the skeleton of the story has been published, we are left to wonder what the whole story really is. People die not only in hospitals every day, but also because of hospitals – think medical negligence, malpractice, infections, surgery gone awry, etc. That a hospital would spend the time and money to file a lawsuit to overturn a thoughtful decision made by the child and her parents raises suspicions that it’s about something more than the media would have us believe.

Medical care in the U.S. is big business. The pharmaceutical corporations are raking in huge profits on the backs of our people, as are the insurance companies. Threaten their profits, their practices, and they spring into action, as they seem to have done here. In other words, is this really about one girl with leukemia or is this about something else altogether? Every law student has been taught you never go to court unless the defendant has “deep pockets.” Is this a wealthy Amish family?

Is this desire to have the court mandate the pouring of toxins into a child’s veins despite the will of the family and despite her suffering from those treatments all about serving up profits rather than about serving the family by staying out of their very private, very personal medical decisions?

We may never know the answer to these questions, but what we do know is:

1. Barring a finding of actual child abuse, parents have every right to make all the life-affecting decisions for their children.

2. Chemo, boiled down into the vernacular, is poison, toxic to the point of damaging or even destroying healthy organs, even if the cancer is arrested.

3. Cancer has a peculiar, irritating habit of recurring, regardless of any initial success of treatment.

4. Chemo targets the faster-growing cells, thus, the cancer cells. But in children, all their cells are growing faster than in adults, so chemo can have particularly devastating effects on their organs and health.

5. Many things in life are just life; out of our control and best left in the hands of God, if one believes in Him/Her without meddling by the self-appointed, all-powerful state.

6. Death is not “the bad guy,” the enemy we make it out to be. It is here to stay for every single one of us. Our society has a horribly unhealthy attitude about this natural and universal occurrence. As someone told me once, it is just “our ticket Home” when the time comes.

I can’t help wondering when the “sanctity of life” folks are going to realize that “life” is, if we are at all religious, indestructible, since the spirit lives on. To hold someone here when their soul is trying to move on can actually be an act of violence and cruelty.

It would be different if there were guarantees, but there aren’t. With chemo, the girl may beat back the leukemia … or not. Without chemo, she may die … or not. Human beings have a way of confounding doctors and prognoses. The same medicine or treatment may save one person and kill another. When this kind of uncertainty looms, the decent thing for the hospital to do is respect the family’s wishes and the decent thing for the court to do is to declare itself unfit to make medical decisions by refusing to hear the case. Anything less is just plain wrong.

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at MarianneStanley@DaytonCityPaper.com.

Debate Right: Court is right: Best interest of child is paramount

By Rob Scott

 A recent decision of an Ohio appellate court has pitted religious rights, parental rights and life against one another. The decision makes room for more cases that could limit both the freedom to make decisions based on religion and parental rights over their children.

Under the U.S. Constitution and the Ohio Constitution, parents have a right to raise their children how they see fit and the freedom to practice a religion of their choice. These issues have collided when a lower court must reconsider a decision made which would not allow Akron Children’s Hospital to appoint an attorney/registered nurse as a medical guardian over Sarah Hershberger. The child in question is a 10-year-old Amish girl suffering from leukemia. The Hershbergers, like many Amish families, shun most modern conveniences to live more simple, religion-oriented lives.

When Sarah became very sick after treatments, she asked her parents to stop the chemotherapy and they agreed after much prayer. Andy Hershberger, Sarah’s father, stated the family believes “to a certain extent, can use modern medicine, but at some times [we] have to stop it and do something else.”

After hearing of the family’s decision to stop treatment and turn to natural remedies and God’s will, the Akron Children’s Hospital stated Sarah’s cancer was very treatable, predicted an 85 percent chance of survival with treatment and believe she would die if the treatment did not continue.

The original decision handed down by the lower court in Medina, Ohio stated that Sarah’s parents had the right to make decisions for her because of her status as a minor and because they were not deemed to be unfit parents. The appeals court ruling, in contrast, agreed with the hospital, and said “the judge failed to consider whether appointing a guardian would be in the girl’s best interest” and that parents did not have to be unsuitable for a guardian to be appointed. The case was then sent back to the common pleas court for reconsideration.

Under the First Amendment of the U.S. Constitution, Americans are guaranteed the free exercise of religion, though exceptions to this rule can be made when religious practices conflict with other laws and rulings in place. Certain parental rights have also traditionally been guaranteed by the due process clause of the Fourteenth Amendment. The issue at stake in this case is whether religious freedoms and parental rights over minors can be trumped by the need for medical care.

In the U.S. Supreme Court’s 1944 ruling in Prince v. Massachusetts, the high court determined parents “may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” In the same decision, the high court added the right to exercise religion freely does not include “the liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

In contrast, the high court ruled in favor of Amish parents in Wisconsin v. Yoder, deciding that Amish children could not be required to stay in school past eighth grade because it conflicted with their religious beliefs.

The case of the Hershberger family is a little different from other cases of this nature and enters into more of a gray area because Sarah’s parents did not refuse outright to get Sarah treatment. In any case involving parents and their children, the court must consider the best interests of the child versus anything else.

The appellate court made the right call forcing the lower court to reconsider its decision not to appoint an attorney/registered nurse to be a limited guardian for Sarah Hershberger. In this case, the preservation of the child’s life is paramount and is in her best interest.

 

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or www.gemcitylaw.com.

 

Tags: , ,

No comments yet.

Leave a Reply

News of the weird 10/21

By Chuck Shepherd Lead Story – Signs of the times “Selfie fever” has begun to sully the sacred Islamic pilgrimages to […]

The last word

Thanks for reading By A.J. Wagner This will be my last week writing the “Law and Disorder” column for the […]

The art of organization

Yellow Springs Artist Studio Tour & Sale returns By Alyssa Reck Photo: Elaine Lamb of Mud Mothers Pottery will showcase […]

Waste not

The Plastic World of Mary Ellen Croteau By Shayna V. McConville Photo: Mary Ellen Croteau, “Endless Columns,” plastic bottle caps […]

On not getting by in Dayton

The long-term effects of poverty By A.J. Wagner I have been penning “Law and Disorder” for the Dayton City Paper […]

News of the weird 10/14

By Chuck Shepherd Lead Story – Bionic shoes Police in Japan’s Kyoto Prefecture raided a shoe manufacturer in July and […]