Can the Government Force Medical Treatment?

On Thursday, the Connecticut Supreme Court upheld a previous ruling that declared the state has the right to force a 17-year-old to undergo chemotherapy treatment for Hodgkin's lymphoma. The teenager had refused to continue treatment, citing medical concerns, but the courts ruled that the young woman lacked "maturity" and "competence" to make such a life-altering decision.  

Early last year Reason TV covered a similar case in Ohio. The state stepped in when an 11-year-old girl, supported by her Amish family, refused to continue chemotherapy for her lymphoblastic lymphoma, a rare cancer. The family sought alternative medication, which they say, helped their daughter make a healthy recovery. The state, however, disagreed and took the case to court citing concern for the "best interest of the child." This case, though, does have a happy ending: the state ended up dropping the case and the girl was not forced to pump unwanted chemicals into her body.

Originally published March 11, 2014. Original text below:

Disclaimer: Amish law precludes formal interview settings, but the Hershbergers spoke with Reason TV at length about Sarah's case and allowed us to record them.

For nearly a year, 11-year-old Sarah Hershberger has simultaneously been battling cancer and a court case. Last April, she was diagnosed with lymphoblastic lymphoma, a rare cancer. Her doctor encouraged her to immediately start chemotherapy, and she quickly began her first treatment.
The side effects took their toll, and the Hershbergers feared for Sarah's well-being. They decided to discontinue treatment. "[The chemotherapy] was really good, but stopping at that point was the best investment we did," says Andy Hershberger, Sarah's father.

"We were pretty sure we were going to lose her if we kept doing the chemo," says Anna Hershberger, Sarah's mother. The Hershbergers wanted to pursue a more natural treatment, then return to the chemotherapy if necessary.
Akron Children's Hospital was not open to discussing alternative or supplemental treatments, and officials there expressed concern that Sarah would die if she discontinued treatment. The hospital eventually went on the offensive.
"Akron Children's Hospital originally tried to have Sarah Hershberger taken away from her parents and Medina County Children Services flat out refused to do that. They said these parents are suitable parents, they are high quality parents, they're loving parents," says the Hershbergers' attorney and director of the 1851 Center for Constitutional Law,Maurice Thompson.

The hospital continued to push the issue all the way to an appellate court, arguing that "a finding of parental 'suitability' does not end a probate court's inquiry. Parental rights, even if based upon firm belief and honest convictions can be limited in order to protect the 'best interests' of the child."

The appellate court sided with the hospital and appointed a legal guardian to make medical decisions for Sarah. The Hershbergers feared that the guardian would force Sarah back into chemotherapy, so they fled the country.
"We were in Mexico three weeks," says Sarah's uncle, Isaac Hershberger. "We had to leave because if we stayed in the U.S., any hospital in the U.S. would report right back to Akron Children's".

The Hershbergers didn't provide specifics about Sarah's "alternative" treatment, but she seems to be doing well. She may be feeling better because of the first chemotherapy treatment, or the alternative treatment, or a combination. We don't know what Sarah's future holds, but Thompson says that because the family is more than suitable, Sarah's treatment should be left entirely to their discretion.

"Having a free society means that people need to be free to take risks, including risks with their family when they are suitable and loving parents who will take those risks out of a position of love and belief," says Thompson. "It's one thing for society, government, for experts to overrule parents who are abusive, or who are neglectful or who perhaps lack the capacity to properly care for their children, and it's imperative to emphasize that none of those are the case here."
"If we could just be left alone, that's what we're asking for," says Isaac Hershberger.

It appears that this request will be fulfilled. The appellate judge recently accepted the guardian's resignation, and it looks like the Hershbergers will not have to continue this court battle. If they do, Thompson is ready to fight the "best interest of the child" standard all the way to the Supreme Court.
"Whether it's the right to refuse unwanted forced medical treatment, or whether it's the fundamental right that guarantees you to raise and bring up your child in terms of their education and their health care in the way that you see fit as a parent, it's pretty clear that the Hershbergers have strong constitutional rights that are at stake here. And that's really what we're protecting," Thompson says.

About 6:30 minutes.
Written, produced, and narrated by Tracy Oppenheimer. Camera by Josh Swain and Amanda Winkler.
Featuring "Syaba" from Ryosuke Sone's Root of Sorrow.
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