Judge W. Scot Gwin took much care in crafting the decision issued last week by the 9th District Ohio Court of Appeals in the case involving Sarah Hershberger. The attention was most warranted, the 10-year-old Amish girl at the center of a lawsuit pitting Akron Children’s Hospital against her parents. Gwin and two colleagues reached the right decision, reversing the ruling of the lower court, allowing the hospital to proceed with life-saving treatment against the wishes of the parents.
No one questions the sincerity of the parents, or their love and affection for their daughter. They watched as she struggled with the harsh side-effects of chemotherapy for an aggressive form of non-Hodgkin lymphoma. She asked for relief. The parents assented, choosing to seek alternative treatment, leaving the door open to resuming chemotherapy if it did not produce positive results.
The lower court earlier sided with the parents. It argued the appointment of a guardian to make medical decisions for Sarah would interfere with her “need and desire to be cared for by her loving parents,” thus working against her best interests.
What concerned the lower court too little was the view of the physicians. The doctors stressed that without chemotherapy, Sarah would die, likely within six months to one year. With the treatment, she would have an 85 percent chance of a positive outcome, living, in other words, the odds worsening with treatment postponed.
The question before the appeals court was whether the lower court judge abused his discretion. As Judge Gwin explained, abuse in this judicial context does not mean “some form of corrupt practice, deceit or impropriety.” Rather, the standard involves whether the reasons given by the court are “clearly untenable, legally incorrect or amount to a denial of justice.”
Gwin then patiently showed how the judgment of a parent must give way to the best interests of the child and the authority of the state to intervene. Again, the parents did nothing wrong. The court did not find them unsuitable in some way. As Gwin stressed, the work of the court doesn’t stop there. It must weigh what is best for the child, parents yielding when their involvement threatens to harm the child, even unintentionally.
The state long has had obligation to protect children, expressed, for example, in labor laws and requirements to attend school. Gwin argued, correctly, that the obligation goes to advancing the country’s future. In that way, the appeals court joined with Children’s Hospital in giving Sarah Hershberger the chance at a much longer life, “to grow and to thrive,” as the ruling put it, shared with parents, family members and friends.