A mother is asking the Maine Supreme Judicial Court to overturn a state-imposed “do not resuscitate” order for her injured daughter, who is temporarily in the custody of the state.
Four powerful organizations have filed a friend-of-the-court brief arguing the state’s Department of Health and Human Services doesn’t have the constitutional right to deprive the baby of her life.
A hearing is set for Sept. 23 in the case of the child known by the initials A.P.
The DHHS imposed a “do not resuscitate” order on the child, which is in the state’s custody because of an alleged child abuse case. But the mother, whose parental rights have not been terminated, is contesting the state’s decision.
The state argues that it has the authority to consent to a “do not resuscitate” order for any child in its custody if it is in the child’s best interest.
Not so, contend Alliance Defending Freedom attorneys, who filed a brief on behalf of the Christian Civic League of Maine, the Christian Medical and Dental Associations, Concerned Women for America and the Roman Catholic Diocese of Portland.
The child was injured when her father allegedly shook her, and she’s been in state custody while the case plays out, records show.
The state wants the DNR order on the child on the assumption that the injuries are severe and will at some point be fatal, even though they occurred last year. The mother, the brief explains, is “in court because she wants to give the baby a fighting chance to live while the state wants to hasten her death.”
“Everyone deserves a fighting chance to live. All this mother is doing is fighting for that chance for her baby,” said ADF Senior Counsel Steven H. Aden. “This mother’s parental rights should not be ignored; no one has the authority to deny her the right to save her daughter’s life.”
The ADF brief explains the father has been indicted on a charge of aggravated assault. ADF said doctors at one point told the mother the child was in a coma, and she agreed to a DNR order then.
The legal team said hospital staff “placed the child in the mother’s arms to die, but the child continued to breathe on her own and opened her eyes.”
“After days went by in this fashion, the parents canceled the DNR order, and the child later came out of the coma and became alert. Despite this, medical personnel wanted to reinstate the DNR order because they said the baby’s condition was still grave, but the parents would not agree.”
So state agency bureaucrats went to court to obtain that DNR order “contrary to the parents’ wishes.”
“Even when a state agency believes the parent’s decision to be incorrect, that does not permit it to interfere in the parent’s right to make medical decisions for her child,” the brief explains.
“If the lower court’s ruling is allowed to stand, A.P.’s institutional physicians will medicate her as desired under the DNR, and she may in fact require resuscitation – but then she will not be treated due to the DNR, and thus she will die – and her mother’s parental rights would be de facto and irrevocably terminated in one of the cruelest ways imaginable.”
Aden explained: “The state is effectively arguing that this mom isn’t fit to make medical decisions for her child simply because she wants the child to live. No one has declared this mother an unfit parent, yet the government wants to take her place. The Maine Supreme Judicial Court should reaffirm Mainers’ interest in life, parental rights, and the integrity of the medical profession by reversing the lower court and restoring this mom’s full rights to make medical decisions on her daughter’s behalf.”
The brief argues the state doesn’t have a constitutional right to interfere.
“The U.S. and Maine Constitutions and the cases interpreting them unquestionably guarantee fundamental rights to live, and to parent. Moreover, they afford the chance to make use of procedural due process – that is, the proper procedure in relation to the case at hand. And Maine itself has a rational and compelling interest in preserving the value of life, protecting the
vulnerable, and upholding the integrity of the medical profession, for the good of all Mainers,” it says.
“This court may prevent the tragic and unpredictable consequences to life, the vulnerable, and the medical profession that are likely to result from allowing a department to overrule a parent’s reasoned, loving medical decision for her child. Wherefore, amici respectfully request that the lower court’s order granting the Department of Health and Human Services’ Motion for Expedited Judicial Review be reversed and remanded for further consideration in line with constitutional and case precedent. A.P.’s mother should be allowed a full and fair chance to parent, and continue to exercise her right to make medical decisions for her daughter.”
The attorneys say the case “is about fundamental rights: the right to live, and the right to parent.”
“The Maine Constitution places great value on human life, echoing the U.S. Declaration of Independence and providing that ‘[a]ll people are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.'”
They argue there is a “fundamental difference between respecting the right of a patient and her legal guardian to exercise the right not to undergo unwanted extraordinary measures and a physician pressuring a patient or the patient’s parent to agree to a potentially life-ending DNR.”
Although the court records refer to the case by initials, the local Portland Press Herald in Maine reports the case of Kevin Peaslee, 21, who was bailed out of jail in January after he was charged in a shaken-baby case.