October 23, 2014

Medina
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41°F

Attorney: Court had no authority to force Amish girl’s cancer treatments

MEDINA — An attorney representing a Homer Township Amish family said there are constitutional protections that should prevent the state from appointing a guardian to oversee 11-year-old Sarah Hershberger’s medical care.

Maurice Thompson, an attorney for Anna and Andy Hershberger filed a brief on Friday arguing that judges overseeing their case, now before the 9th District Court of Appeals, should allow them to make the argument that their constitutional rights were violated.

Earlier this month, attorneys for Maria Schimer, who was appointed to serve as Hershberger’s guardian, argued that it was too late in the appeals process for the family to argue against the appointment of a guardian.

Schimer’s attorney, Clair E. Dickinson, said they should have brought up that issue when the case was heard in Medina County’s Probate Court.

But in his filing on Friday, Thompson, who also serves as the executive director of the Libertarian 1851 Center for Constitutional Law, said the Hershberger’s argument against a guardian appointment is not new.

“They have maintained all along that the government does not have the authority to do this,” he said in an interview Monday.

Thompson also said that constitutional rights should be more important to a court than whether the defense was raised previously in the appeals process.

“A court shouldn’t allow a mistaken ruling to stand that could affect every parent in the state,” Thompson said.

In his brief, Thompson argued that courts in Ohio have ruled that “getting the result right” in cases regarding constitutional rights is of greater importance than “strict formulaic adherence to judge-made doctrines. …”

The Medina County Probate Court ruled in favor of the family twice in the case this summer, but Akron Children’s Hospital appealed the rulings. In October, the 9th District Court ordered county Probate Judge Kevin W. Dunn to name a guardian after ruling in favor of Akron Children’s Hospital, which argued the girl would die within a year without chemotherapy.

Thompson said the Hershberger’s arguments made at the probate court level were intended to refute claims made by the hospital, not to assert their constitutional rights.

“The Hershbergers properly focused their limited resources on defending the statutory and factual bases for the Probate Court’s decisions, since those were the issues raised by Ms. Schimer on appeal,” Thompson wrote in Friday’s filing.

According to family friends, the Hershberger family left the country late last year to seek alternative medical care for their daughter.

In December, Schimer filed her resignation as a guardian over Hershberger. In explaining Schimer’s request to withdraw, Dickinson said the hospital had not seen the girl and had no idea where she was.

The court has yet to approve the resignation. On Dec. 18, Judge Dunn said his jurisdiction over the case is in question because the case has been appealed.

Contact reporter Loren Genson at (330) 721-4063 or lgenson@medina-gazette.com.