Created on Thursday, 26 December 2013 Written by KANTELE FRANKO, Associated Press
COLUMBUS, Ohio (AP) — A court was wrong to appoint a guardian to make medical decisions for an Amish girl whose parents stopped her chemotherapy against doctors' wishes, and the guardian should be allowed to resign, the family's attorney said in court filings this week.
The lawyer for Sarah Hershberger's family argued for a reversal of the appointment in a filing in their state court appeal.
Ohio's guardianship statutes appear to let courts substitute their judgment for that of suitable parents while ignoring the parents' "moral and constitutional interests," Maurice Thompson wrote. The court should take a narrower view that limits such second-guessing and is consistent with constitutional safeguards of their rights, he wrote.
To do that, the court must hold "that the decisions of suitable parents may not be attacked by anyone anytime in an Ohio Probate Court, and that these careful and gut-wrenching life and death decisions cannot be second-guessed and overruled where the parents are suitable, and simply seek to try a less invasive treatment first," wrote Thompson, who leads the libertarian 1851 Center for Constitutional Law in Ohio.
Clair Dickinson, an attorney for guardian Maria Schimer, said Thursday that he will submit a response to Thompson's filing later, but he declined to reveal what it might say.
Hershberger and her parents fled their Medina County home more than two months ago so she wouldn't be forced to resume chemotherapy for her leukemia. Instead, they decided to use natural medicines, such as herbs and vitamins.
The Hershbergers shun many facets of modern life and are deeply religious. They have said they stopped chemotherapy not for religious reasons but because it was making Sarah too sick and they feared it could end up killing her.
Doctors at Akron Children's Hospital believe Sarah's leukemia is treatable but have said she will die within a year without chemotherapy.
Schimer, an attorney who's also a registered nurse, has asked the court to let her drop her attempt to force Sarah to resume chemotherapy, because it became impossible to make medical decisions for Sarah after the family fled.
If approved by a judge, Schimer's resignation could end the family's months-long fight against the hospital and pave the way for them to return home, where they live on a farm and operate a produce stand near the village of Spencer, about 35 miles southwest of Cleveland.
Medina County Probate Judge Kevin Dunn has delayed a decision on the resignation request. He said he first wants to make sure he has authority to grant it in light of the ongoing appeal in state court.
In a separate filing on that issue this week, the family's lawyer argued that Dunn should immediately accept the resignation and that it wouldn't hinder the appeal.
Dickinson has said that an attorney told him the hospital won't continue its legal push to get chemotherapy for Sarah if her guardian's resignation is approved.