January 22, 2014
Amish Family Chemo: Constitutional Rights At Stake, Says Attorney

Can the state force an Amish family to allow chemo treatments if they believe the therapy is making their daughter more ill? That's the question at stake in a recent appeal made by the Hershberger family of Homer Township in Northeastern Ohio.

Andy and Anna Hershberger live with their 11 year old daughter Sarah - who has leukemia - in a farm house near the village of Spencer, 35 miles southwest of Cleveland. Like most Amish families, they shun most modern conveniences and strive to live simple, uncluttered lives.

The Hershbergers are deeply religious. However, they claim that their religion is not the reason they decided to stop Sarah's chemotherapy this summer. Rather, they claim, they halted the girl's chemo treatments because they believed the treatments were making their daughter sicker. Fox News reports that the family feared that continuing chemo treatments might kill their daughter. The family opted instead to try natural medicine - vitamins and herbs.

According to the Medina-Gazette, the Medina County Probate Court ruled twice over the summer that discontinuing chemotherapy was within the rights of the Amish family. Chemo treatment provider Akron Children's Hospital appealed both rulings. The hospital argued that Sarah Hershberger's leukemia is treatable, but she will not live a year without chemotherapy.

In October 2013, Ohio's 9th District Court of Appeals overturned the Medina Country Probate Court's rulings and ordered Judge Kevin Dunn to name a guardian to make medical decisions for Sarah Hershberger. Dunn named Maria Schimer - an attorney who is also a registered nurse - as Sarah's guardian.

The Hershberger family, represented by attorney Maurice Thompson of the libertarian 1851 Center for Constitutional Law in Ohio, has appealed the 9th Circuit Court's decision, claiming that Andy and Anna Hershberger's constitutional rights have been violated in a way that could affect all Ohio parents' rights to make medical decisions on behalf of their children.

Schimer, on the other hand, has argued that the Hershbergers cannot bring the issue of constitutional rights into their appeal because they did not bring them up in the initial case. Thompson, however, has argued that maintaining constitutional rights is more important than technicalities in the appeals process.

The Medina-Gazette reports that Schimer filed a resignation of guardianship in December. Schimer's court brief stated that she believed the court should not overturn the ruling that led to her being named guardian, but also expressed her desire to stop trying to force the Amish family to take their daughter to chemo treatment. Her reasoning was simple: the Hershberger family took Sarah and fled, going into hiding after Schimer was appointed guardian, making it impossible for her to make medical decisions on Sarah's behalf.

Probate Judge Dunn considered Schimer's request, but has delayed making a ruling because of unresolved questions regarding his authority to rescind the guardianship order while an active appeal is taking place in a higher court. Schimer and her attorney claim that Dunn could grant Schimer's resignation without rescinding the state's custody over the child.

Can the court system force chemotherapy treatments on the daughter of this Amish family? Chemo treatments could save Sarah's life, but it's up to the court to decide whether constitutional rights are at stake and, if so, whether the safety of an 11 year old child trumps them.