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Human Rights Law

: Never In Our Names

This Mortal Coil

By blueness

"Hard cases," observed Justice Oliver Wendell Holmes, "make bad law." And Holmes should know, having held that Eugene Debs should rot ten years in prison for opposing World War I, and having hallucinated that the clear command of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech," actually contains an exception prohibiting "shouting 'fire' in a theater."

It is probable that no judge of even the sporadic sagacity of a Holmes will pass judgement upon the case of Daniel Hauser, who is currently out there somewhere on the run, fleeing court-ordered medical treatment. Hauser is 13 years of age, and is not interested in receiving further chemotherapy treatments. His mother, a Roman Catholic and devotee of an outfit which advocates natural healing, supports him. The State, in the person of Judge John Rodenberg, has determined that refusal to accept chemotherapy constitutes "medical neglect," and that, if his parents do not force him to accept treatment, Daniel must be snatched from them by the State.

As we in the Democratic Party seek, rightly, increased involvement of the State in medical care, it is right to consider this case, which at root asks who, in the case of a minor, may invoke "the right to die": the minor, the parents, or the State.  
Judge Rodenberg this afternoon issued an arrest warrant for Colleen Hauser after she and her son failed to appear at a scheduled court hearing. Daniel Houser's father, Anthony, said he last spoke to his wife Monday afternoon, while milking cows at the family farm in Sleepy Eye, Minnesota. She said she was leaving, but did not say where she was going, or how long she would be gone. "That's all you need to know," she said.

Judge Rodenberg found her in contempt of court and ordered that Daniel be examined by an oncologist and then interred in a foster home once apprehended.

Daniel Hauser is afflicted with Hodgkin's lymphoma. Medical personnel assert that with treatment he has an 80%+ chance of survival; without it, they claim, he will likely die within five years. He was diagnosed in January and received a single treatment of chemotherapy. He didn't like it. He complained of severe pain around a "port" that had been placed in his chest to administer cancer-fighting drugs. Doctors opined that the pain was probably caused by the tumor, rather than the port. Asked to rate the pain on a scale of 1 to 10, Daniel rated it at 10.

Daniel and his parents concluded that the treatment was harming, rather than helping him, and began treating him instead with herbs and vitamins. Judge Rodenberg last week pronounced this "medical neglect." He determined that Daniel had only a "rudimentary understanding at best of the risks and benefits of chemotherapy" and "does not believe he is ill currently." He concluded: "He lacks the ability to give informed consent to medical procedures."

I have a "rudimentary understanding at best of the risks and benefits of chemotherapy." I'm 52. My father-in-law, afflicted with a really foul cancer, did not really "believe he [was] ill currently" until a few weeks before he died at age 91. Maybe both of us "lack the ability to give informed consent to medical procedures."

The judge stated that Daniel believed the chemotherapy treatments would kill him. Bruce Bostrom, the doctor who diagnosed Daniel's cancer, noted that fear of chemotherapy is quite common among his patients. My father-in-law, when once he sought chemotherapy, was denied it, on the grounds it would kill him.

The first most common reaction to a case like this is that of course minors are incapable of reasoned, mature judgement, and so therefore the tussle must solely concern the parents and the State.

Problem is, in plenty of other areas of the law, minors, even those of Hauser's age, are presumed to be capable of exercising reasoned, mature judgement.

The law is frankly confused in its treatment of minors. It has erected a nearly impenetrable thicket in clumsily pursuing what the United States Supreme Court in Craig v. Boren (1976) 429 US 190, 203 termed "social stereotypes that find reflection in age-differential laws."

Here in the state of California, for instance, one may drive a motor vehicle, but not enter into a contract, at the age of 16. One may vote, smoke cigarettes, or serve in the armed forces, but not consume alcoholic beverages, at the age of 18. Indeed, when I was a lad, the State sent me mail informing me that I should prepare myself to "go and kill the yellow man"--even while alcohol could not lawfully touch my lips for another three years.

Though a man who engages in sexual congress with a woman under the age of 18 (or vice versa) in this state is guilty of at least statutory rape, that same young woman, if she were to become pregnant, could, under American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, seek and secure an abortion without either consent from or notification of her parents--a right, as noted by Associate Justice Stanley Mosk in his dissent, that extends to "girls as young as nine years old."

So, if Daniel Hauser lived in this state, and was Debbie Hauser, she could go get an abortion, and without her parents' knowledge or consent. But tell chemotheraphy to bugger off, even with her parents' consent, and the State will roar in, kick her parents to the curb, strap her down, and load her up with drugs. For California is just as aggressive as is Minnesota in decreeing that parents who do not do as doctor says run afoul of the law, reveal themselves to be unfit to be parents.

There's more.

In California a young woman under the age of 18 is statutorily presumed to be too immature to consent to an act of sexual intercourse, and may not legally marry without the consent of her parents. Yet she is, according to  People v. Hoxter (1999) 75 Cal.App.4th 406, 411, fully mature enough to reach a fully-informed decision as to whether or not to "admit visitors on her own authority" to the home of her parents--specifically, police officers seeking to arrest her father. Hoxter goes further, approvingly citing decisions from "several sister states" showering the power of consent upon a 12-year-old boy (US v. Clutter [6th Cir. 1990] 914 F.2d 775,778), a boy who "appeared between 11 and 14 years of age" (Doyle v. State [Alaska 1981] 633 P.2d 306, 307-308), an 11-year-old girl (People v. Holmes [1989] 180 Ill.App.3d 870), and a 10-year-old girl (State v. Lotton [Minn.App. 1995] 527 N.W.2d 840, 844).

Of course, after these 10-, 11-, or 12-year-olds make the mature, reasoned decision as to whether to consent to allow police officers into the family home, if those police officers then find any usable amount of prohibited narcotics, including marijuana, here in this county those police officers will promptly confiscate both the narcotics and the minors, booking the former into evidence and subjecting the latter to the custody of the State. The parents will be charged with the felony offense of "child endangerment," and civil proceedings will immediately commence to separate the minors from their parents permanently, declaring them wards of the State.

Most often this is a cynical form of blackmail: what is desired by the DA is that the male plead guilty to several felonies, and the female to one; once she does her time, the minors will be returned to her care. If all parties do not agree to this "deal," the State continues with its attempts to permanently confiscate the minors.

Several times a year our office also handles cases where one parent is charged with something like child abuse or child molestation, and the other parent supports the partner's innocence: in these case the minors are immediately snatched from the uncharged partner, and proceedings are swiftly initiated to declare that removal permanent, as belief in the notion of "innocent until proven guilty" is in these cases interpreted as itself child abuse.

Also in California, minors as young as age 14 are considered mature enough to in some cases be tried in California courts as adults--subjected to adult penalties, which, until the United States Supreme Court recently nixed the notion, included the death penalty.

Yet as the age at which a young Californian may allow entry to police officers seeking to arrest his or her parents, or be sentenced to life in the state prison, continues to fall, so too does the age at which s/he may consent to engage in sexual congress continue to rise. The notion that one must be 18 in order to maturely determine whether or not to engage in sexual relations is of relatively recent vintage. As Justice William Brennan observed in Michael M. v. Superior Court (1981) 450 US 464, at 494:

"California's statutory rape law had its origins in the Statutes of Westminster enacted during the reign of Edward I at the close of the 13th century. The age of consent at that time was 12 years old, reduced to 10 years in 1576. This statute was part of the common law brought to the United States. Thus, when the first California penal statue was enacted, it contained a provision that proscribed sexual intercourse with females under the age of 10. In 1889, the California statute was amended to make the age of consent 14. In 1897, the age was advanced to 16. In 1913 it was fixed at 18, where it now remains . . . The only legislative history available, the draftsman's notes to the Penal Code of 1872, supports the view that the purpose of California's statutory rape law was to protect those who were too young to give consent. The draftsman explained that the '[statutory rape] provision embodies the well settled rule of the existing law; that a girl under ten years of age is incapable of giving any consent to an act of intercourse which can reduce it below the grade of rape'."

Finally, if a minor makes the mistake of attending one of those relicts of the Industrial Age known as a school, s/he will find that s/he has less rights than many animals, as the United States Supreme Court seems prepared to rule that such a minor may be strip-searched by school officials searching for drugs. Not chemotherapy drugs, of course. Bad drugs. You know, like in the case the high court heard, ibuprofen.

It can be argued that a 13-year-old has no real understanding of the reality of death, but the same is true of most 83-year-olds. My daughter, who is 30 years younger than I am, has a better understanding of mortality than I do, because at age 17 she came close to dying. That's generally what it takes.

States since their inception have been happy to take advantage of the fact that the young are reckless with their mortality: how easy, then, to impress them into military service. The very same State that is now so concerned about prolonging Daniel's life will rush to accept his sacrifice of it in but five years, when he will be old enough to join the Imperial armies. He will then be considered mature enough to give up his life, though it is no more likely he will then understand what that means than he does now.

I express no opinion on this case. I thought, in light of the kaleidoscopic ways in which the law treats minors in this country, it might be something worth discussing.

My only opinion is the hope that Daniel Hauser enjoys a long and happy life here. Most those involved in this case seem to lean upon some supreme being, from the parents to the judge, who dramatically intoned: "I am confident that I join all of the others involved in this matter in hoping, and indeed in praying, that Daniel Hauser lives to testify at that hearing."

I personally believe prayer to be the biggest CT extant. Heaven is an extraordinary claim, and after a lifetime of searching I have yet to locate extraordinary evidence. All we are promised, it seems to me, is what we have--and but once--here. This is not as easy a place for me as it was for someone like the 17th Century poet Richard Crashaw, who could regard what this world does to children, and reply with a poem like "To The Infant Martyrs":

Go, smiling souls, your new-built cages break,
In heaven you'll learn to sing, ere here to speak,
Nor let the milky fonts that bathe your thirst
                                          Be your delay;
The place that calls you hence is, at the worst,
                                          Milk all the way.

Full post as published by Never In Our Names on May 20, 2009 (boomark / email).

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