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May 15, 2009

The Nanny State vs. The Family, 2009 Edition

by Doug Mataconis

Out in Minnesota, there’s a case pending that tests the limits of individual rights, religious liberty, and the state’s role in “protecting” children.

MINNEAPOLIS (AP) — A Minnesota judge is expected to decide whether a family can refuse chemotherapy for a 13-year-boy’s cancer and treat him with natural medicine, even though doctors say it’s effectively a death sentence.

With chemotherapy, Daniel Hauser has a 90 percent chance of surviving his Hodgkin’s lymphoma, according to his cancer doctor. And without it?

“It is almost certain that he will die,” said Dr. Bruce Bostrom, a pediatric oncologist at Children’s Hospital and Clinics of Minnesota. Bostrom, who diagnosed the disease, is an ally of the legal effort in southwestern Minnesota’s Brown County to make Hauser submit to chemotherapy even though he and his parents believe it’s potentially more harmful than the cancer itself.

District Judge John Rodenberg was expected to rule Friday on Brown County’s motion.

Bostrom said Daniel’s chance of survival without chemotherapy is about 5 percent. Nevertheless, parents Colleen and Anthony Hauser are supporting what they say is their son’s decision to instead treat the disease with nutritional supplements and other alternative treatments favored by the Nemenhah Band. The Missouri-based religious group believes in natural healing methods advocated by some American Indians.

This case is similar to one that made headlines here in Virginia, and around the country three years ago when a Chesapeake County Judge was faced with deciding whether then 16 year-old Abraham Cherrix, who was suffering form the same form of cancer as Daniel Hauser, should be forced to undergo chemotherapy. After a Court fight that lasted nearly two months, the case was settled and Cherrix was ultimately permitted to refuse the undergo chemotherapy. His case, however, led to a change in Virginia law which gives children the right to refuse to undergo medical treatment after they reach the age of 14.

Of course, Abraham’s Law, as it came to be called as it made it’s way through the Virginia Legislature, wouldn’t really apply in Hauser’s case since he’s under 14, and it’s age that is one of the major factors that distinguishes this case from the Cherrix case. Is a 13 year old really mature enough to understand the implications of a decisions that could very well result in his death ? Is he really making the decision on his own, or is he being influenced by his parent’s rather unorthodox religious beliefs:

The Hausers, who are Roman Catholic, have eight children. Colleen Hauser told the New Ulm Journal newspaper that the family’s Catholicism and adherence to the Nemenhah Band are not in conflict, and said she has treated illness with natural remedies her entire life.

Nemenhah was founded in the 1990s by Philip Cloudpiler Landis, who said Thursday that he was one-fourth American Indian. Nemenhah adherents are asked to pay $250 to be members. “We’re non-dogmatic, a very universal faith,” Landis said.

Landis said he founded the faith after facing his diagnosis of a cancer similar to Daniel Hauser. He said he treated it with diet choices, visits to a sweat lodge and other natural remedies. Landis also once served four months in prison in Idaho for fraud related to advocating natural remedies.

So, the Hauser case seems to be a much closer call that the Cherrix case was, but I think the default position should be the same as the one I stated when I first heard the name Abraham Cherrix:

It seems pretty clear to me, though, that the state has little, if any, right to interfere in what is essentially a private decision for the Cherrix family, and specifically for Abraham. Who is the state social worker to say that his decision is wrong ? As someone who has witnessed first-hand what happens to someone on chemotherapy, its pretty clear that modern cancer therapy is often based on the hope that the chemicals being pumped into the patient will kill the cancer cells before killing the patient. The side effects are visible, painful, and often permanent. Abraham has been through one round of chemotherapy already and, apparently it didn’t work. If he chooses not to subject himself to that again, and his parents support that, that decision should be respected.

Yes, Abraham is 16 and technically a minor, but if its clear that his decision is really his, then what right does the government have to stick a needle in his arm and pump toxic chemicals into his body ? None that I can see.

Replace Abraham’s name with Danie’ls, and I think those words apply just as strongly in this case. The state has no right to force someone to put chemicals in their body, not even a child.

And what ever happened to Abraham Cherrix ? Well, after initially appearing to suffer a setback in 2007, he turned 18 in June of last year showing no signs of the Hodgkin’s Disease that had been ravaging his body for years.

Update @ 4:15pm: The judge hearing Daniel’s case has issued his decision and has ruled that Daniel must undergo the chemotherapy treatments.

C/P: Below The Beltway

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29 Comments

  1. Let the parent’s decide, then when their kid dies charge them with negligence. No “nanny state” and these homeopathic morons reap what they sow.

    Comment by J — May 15, 2009 @ 8:18 am
  2. It is funny that some of the same people who would use force to prevent one from putting certain chemicals in one’s body will also try to force the chemicals into another’s.

    Comment by Greg — May 15, 2009 @ 8:52 am
  3. Thank you, Greg.

    Comment by Merf — May 15, 2009 @ 9:19 am
  4. Doug:

    I see this as one of those libertarian “hard cases.” If parents act contrary to their child’s rights (the child’s right to life in this case), who is left to speak for that child? As much as I hate to say it, I think the answer is the state.

    I wouldn’t imagine that you would say that when Social Services removes a child from the care of truly abusive parents you would say “this is the nanny state acting against the rights of parents” would you?

    Negligence is a form of abuse. If this child dies because his parents purposely refuses life saving medical treatment, then they should be criminally charged.

    Comment by Stephen Littau — May 15, 2009 @ 10:53 am
  5. Stephen,

    I don’t disagree, which is why I’m not nearly as confident of how I feel about this case as I was in the Virginia case.

    At some point, even before they are 18, I think it’s clear that “children” become old enough to understand the implications of their decisions. Which is why I thought that the 16 year old in the Virginia case should have been allowed to make his own decision

    Comment by Doug Mataconis — May 15, 2009 @ 12:15 pm
  6. It’s a tough call to be sure. Where should the line be drawn? I tend to think that a 16 year old is old enough to make an independent decision about his or her health but a 13 year old, I tend to think not.

    Comment by Stephen Littau — May 15, 2009 @ 12:27 pm
  7. I don’t disagree on the age issue.

    Most importantly, though, I don’t think you can draw a bright-line rule for cases like this to begin with. These are the kinds of cases that make me glad I’m not a Judge

    Comment by Doug Mataconis — May 15, 2009 @ 12:54 pm
  8. Couple points:

    1. If we must do what the doctor thinks best then why even have parents rights…..just right a law that says you must do what the doctors say? The doctors “might” be wrong. Would we stand for an adult being forced to have treatment?

    2. Its not just his parents…he does not want this….if the court orders an x-ray (which it has) and he refuses to stand or sit still for it, will the police arrest him , hold him down , drug him?

    3. Why should he not be allowed to choose…..kids his age are convicted as adults all the time in our courts….why would the court not let him choose. Clearly if a 13 or 14 yr old can be held to account for adult crimes why not make adult choices.

    Comment by John — May 15, 2009 @ 5:11 pm
  9. [...] The Liberty Papers »Blog Archive » The Nanny State vs. The Family …The Nanny State vs. The Family, 2009 Edition. by Doug Mataconis. Out in Minnesota, there’s a case pending that tests the limits of individual rights, religious liberty, and the state’s role in “protecting” children. …Read more [...]

    Pingback by The Nanny Blogs | Most Popular Searches - webmastereye.net — May 15, 2009 @ 8:37 pm
  10. John, I think your second point is the most important point of all: how much violence are people willing to use in order to force the child to get the “right” treatment?

    I think that the kid is a damn fool and that these “natural” or “alternative” remedies are pretty useless. However, I am not willing to use force to make him get chemotherapy.

    Most hospitals, however, are used to treating combative patients against the patients’ will, and have mechanisms in place to restrain people. So I think whatever hospital is treating him will have few qualms about using force and will face few physical difficulties with respect to restraining him for any treatment.

    Comment by tarran — May 16, 2009 @ 7:05 am
  11. People have over the years expanded the years of childhood. What is it, 40 now? The idea of adolescents is a social invention. Before the Nanny State, kids were thought of as little adults.

    Why limit this to a child’s decision. Is this a cultural bias? How about does anyone have the right to forsake medical treatment that would preserve their life according to respected experts? I think the point is that the person is nuts and is unable to govern themselves. People who can’t make good decisions come from all ages. Jim Henson could still be alive if only the state intervened!

    Comment by uhm — May 17, 2009 @ 6:42 am
  12. These are very tough decisions. I’m glad I don’t have to decide this one. While I would probably elect treatment for my own child, I wouldn’t force my neighbor to do the same for his. I would prefer to err on the side of liberty and freedom. I always question the state’s motives. In this case, they are going to force treatment for the child’s best interests and some think that is OK. Is it also OK for the state to sterilize him to prevent passing on this genetic disorder to future generations in the best interests of the human race? Most would say not. Some of the worst things in human history have happened because someone decided to use force to accomplish their goal.

    Comment by John222 — May 17, 2009 @ 7:47 pm
  13. I guess for me, the deciding factor is the child’s desire. If he wanted the treatment, but his parents were preventing having it, then there would be much more of an issue. But if the judge is satisfied that the kid is reasonably informed of the options and consequences of his choice, I don’t see that forcing him is the way to go.

    Comment by SC — May 18, 2009 @ 9:37 am
  14. Update on this one. The mother has fled with the child and an arrest warrant has been issued. The judge also ordered protective custody for the child.

    Comment by John222 — May 19, 2009 @ 1:32 pm
  15. Some have said that it’s what the child wants. We have no idea how much of that was put into his head because of the parents. It doesn’t take much to instill fear into a child. At that age, I’m sorry, but they do not have the brain development to really grasp the reality of what their decision may or may not do to them.

    Comment by Aimee — May 19, 2009 @ 2:19 pm
  16. The brain is not fully developed till our early to mid 20′s but I don’t that the point.

    Is he an adult….well if he committed a crime he could be treated as an adult. Why not now.

    As for his parents putting ideas in his head….where is the line on this. Are we going to say that Jewish parents put ideas in their kids heads so all children will be forced feed ham and cheese subs???

    Comment by John — May 19, 2009 @ 2:42 pm
  17. Are you trying to say that the parents have absolutely no influence over this boy’s choice to not have treatment?

    Do you know for a fact that this boy said, “I don’t want traditional medicine” without ever having talked to his parents about the decision, or knowing how his parents felt about medicine in the first place?

    If parent’s didn’t have some sort of power over what their kids believe, church pews would be freakin’ empty.

    Comment by Aimee — May 19, 2009 @ 6:00 pm
  18. Okay, Aimee, if the child cannot decide for himself, who, then, should make the decision?

    Comment by Merf — May 19, 2009 @ 9:04 pm
  19. Parents are or should be a childs main teacher and influence. That said kids / teens do make choices for themselves even after having parents influence them. They still have unsafe sex, drink and do drugs. So to say this kid /teen or any teen has no real belief and is just doing what his parent(s) want is kind off.

    I am sure there are a lot of influences in this young man’s life and if I were one I would be trying to get him to submit to the treatment. But I also think even at 13 he should have a right to refuse.

    If the teen and his parent(s) cannot exercise the right to refuse, why have the right. In other words just make the law say you (they) MUST do whatever the doctor thinks best. Of course doctors have been wrong and have used traditional medicine like Zoloft in kids with deadly results. So what do we say to parents who say NO I don’t want to do what the doctors want and are forced to and then have a poor result.

    I know some will say apples and oranges but it is the point of having a right to refuse. Traditional medicine has been wrong before with deadly results.

    Comment by John — May 19, 2009 @ 10:10 pm
  20. So if this 13 year old is old enough to decide what sort of treatment he gets, should he have been able to put in his vote for president this last election, join the military, drink, drive? Hell, why have an age limit on anything. Next are we going to be arguing about a 5 year old that doesn’t want treatment for something?

    Why did these parents even bother with a traditional doctor to find out what was wrong with him in the first place? This kid doesn’t even think he is sick.

    Then what happens in a family where one parent wants tradition medicine and the other wants to go with natural healing methods, does the child get to be the tie breaker, or best out of 5 in a game of rock, paper, scissors?

    I suppose you think its also okay that an 11 year old girl died from undiagnosed diabetes too?

    “The girl’s parents, Dale and Leilani Neumann, attributed the death to “apparently they didn’t have enough faith,” the police chief said.
    They believed the key to healing “was it was better to keep praying. Call more people to help pray,” he said. The mother believes the girl could still be resurrected, the police chief said.”

    She hadn’t even been to a doctor since she was 3.

    Her fruitcake parents chalked her death up to not having enough faith. Should these parents be charged with negligence or do you let them hide behind their religious beliefs?

    http://www.foxnews.com/story/0,2933,341574,00.html

    I’m done going in circles with you on this.

    Comment by Aimee — May 19, 2009 @ 11:42 pm
  21. Facts:

    *Kids as young as 10 or 11 have been convicted as adults of crimes.

    *Kids as young as 12 or 13 can get birth control and reproductive services without parental consent in some states…. even an abortion.

    *Fact some kids /parents have blindly followed doctors orders, such as with Zoloft leading to suicide and murder.

    *The youngest American solider to earn the Medal of Honor was 12 yr old Willie Johnston.

    * 14 yr olds can with training fly a glider or hot air balloon solo.

    My points:

    * Don’t treat 13 and 3 the same.

    * The law in some cases already treat 13 yr olds and younger as adults. What kills me is how in one case he is a little boy without a say (his own cancer treatment) but in another he would be an adult (say if he shot a classmate). How can we have it both ways.

    As far as the fruitcake parents….different faith does not make you a fruitcake…some would say Amish parents are hurting their kids , I mean no TV, no X-Box, and no schooling past 8th grade. BUT it is not the states role to raise children. If the Amish want to live without lights and cell phones then have fun….its not for me or anyone else to call them fruitcakes.

    Comment by John — May 20, 2009 @ 6:59 am
  22. John, get a grip. We’re not talking about Xboxes or TV’s here, we are talking about a matter of life and death.

    Fruitcake ideas are not criminal (or at least shouldn’t be) unless the actions from the fruitcake idea violate someone else’s rights. I would say that the FLDS folks who insist that it’s okay to force girls as young as 12 to marry someone who is 50 as such a violation wouldn’t you?

    Comment by Stephen Littau — May 20, 2009 @ 7:30 am
  23. Aimee, does that mean that because some parents are bad, that all parents are bad?

    Comment by Merf — May 20, 2009 @ 7:31 am
  24. So you never answered my question, it’s okay that people can hide behind religion and use prayer as the answer to health problems? That poor girl probably died a very painful death because of her parents.

    Merf, I never once said all parents are bad. Ones that go out of their way to not get treatment for something that is treatable should be charged with negligence at the very least if it results in their death.Religious beliefs or not.

    John, Willie was a drummer boy, not a soldier, and it was during the civil war, 147 years ago. Not saying he didn’t deserve it, just pointing out he didn’t actually fight.

    I don’t agree with kids that young being tried as an adult, because at that age they don’t understand the consequences of their actions. They obviously need mental help.

    People have died from taking Tylenol, so your Zoloft point means nothing.

    We can’t have it both ways obviously. Each situation would have to be looked at on an individual basis. Not all kids at age 13 are at the same level of maturity.

    Like I mentioned before, this kid really believes that he isn’t even sick. Do you call that having a grasp on reality? I dont.

    Comment by Aimee — May 20, 2009 @ 11:27 am
  25. “The judge has said Daniel, who has a learning disability and cannot read, did not understand the risks and benefits of chemotherapy and didn’t believe he was ill.”

    “Minnesota statutes require parents to provide necessary medical care for a child, Rodenberg wrote. The statutes say alternative and complementary health care methods aren’t enough.”

    http://www.msnbc.msn.com/id/30824587/?GT1=43001

    Comment by Aimee — May 20, 2009 @ 12:41 pm
  26. “The judge has said Daniel, who has a learning disability and cannot read, did not understand the risks and benefits of chemotherapy and didn’t believe he was ill.”

    His learning disablitity does not matter…so he can’t read….a lot of adults can’t read but we no longer without civil rights based on your reading or not reading.

    I mean if the kid had a 140 IQ then could he have civil rights?

    Is there a human right, a civil right to refuse care? If so what gives us the right to refuse him his rights.

    We seem to have no trouble allowing nature to run its course with the old but for some reason we have trouble when it is the young who want that right. I think what we are saying is some lives are worth more than others…..another interesting issue.

    Comment by John — May 20, 2009 @ 12:55 pm
  27. John, you may not like the judge’s ruling but it appears that the judge made the ruling based on the statute. It seems that the people of Minnesota via their state government has debated these complex issues and made a determination. It may well be that the people of Minnesota (and perhaps others across the country) will revisit this issue and come to another conclusion (in which case the judge would be required to rule based on such changes in the law).

    I think the main thing is that this is not a cut and dry issue by any means. You and others have raised some very interesting questions that do not have easy answers. Awhile back, Doug wrote a couple of posts on some of these very questions http://www.thelibertypapers.org/2007/11/01/the-libertarian-hard-cases-part-i-children/ and http://www.thelibertypapers.org/2007/11/13/the-libertarian-hard-cases-part-ii-mental-incapacity/

    Comment by Stephen Littau — May 20, 2009 @ 1:27 pm
  28. Once again, the kid doesn’t even believe he is sick! He either can’t understand it because of his disability or he is in major denial. You seem to keep dancing around that point.

    As for elderly, they at least have had a chance to live their lives, if they want help to die, so be it. They know the consequences of their actions. If they want to die a painless death, they can choose hospice. If they are not of sound mind and body, they have people to make decisions for them, or they have appointed someone before the situation got so bad they could no longer think for themselves.

    These two topics are not on the same level.

    Comment by Aimee — May 20, 2009 @ 1:55 pm
  29. Stephen – I agree this is a complex issue and the judge has followed the statute and case law. I think there maybe a great case for a state appeals court or federal court on the issue of civil rights but as for the role of the current judge he followed the law.

    There maybe a chance to change state law , my guess would be most likly not because we want to save or rescue kids in these cases not provide them freedom to make choices we disagree with….heck most of us would like to prevent adults from dying like a Jim Henson.

    I will say just cause it is legal does not make it right or morale.

    Of course by going on the run they have decided not to fight an appeal. This was a poor choice which removes any chance of an appeal or a stay of the lower court order.

    I think once found (if found alive) he will be forced to receive care. If that mean police/security dragging him in and help nurses tie him down I think it will happen. Of course he might have to be tied up a long time so he won’t pull out a pic line or something like that. My point is forcing him wont be as easy as saying “I am the adult, be a good little boy and do what your told”.

    As for Aimee – I believe the kid is wrong and should get treatment. BUT I am not sure it should be done against his will (and maybe his civil rights).

    Comment by John — May 20, 2009 @ 3:44 pm

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