CIR Appeals to Defend Family Medical Rights

CIR filed a petition for rehearing by the full Court of Appeals for the Ninth Circuit in Mueller v. Auker, CIR’s case defending the right of parents to make important medical decisions on behalf of their minor children.   CIR is seeking to reverse a ruling by a three-judge panel denying a new trial. CIR is representing Corissa and Eric Mueller, whose five-week-old daughter Taige was seized by police in a Boise, Idaho, emergency room and given a forced spinal tap in 2002. Among other errors, CIR is challenging the three-judge panel’s holding that medical experts can offer opinions based merely on instinct or intuition.

  • Read CIR’s Petition for Rehearing En Banc
  • Read the panel opinion

Parents’ right to make medical decisions at stake in lawsuit

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IR’s case on behalf of Eric and Corissa Mueller is one of the most important civil liberties cases now pending and the only one concerned with child protection law.

In recent years, the body of law protecting the institution of marriage and family has yielded to efforts by the government to regulate and recreate these institutions. On the one hand, judges busy themselves re-writing the laws of marriage to  accommodate a broad array of individual partnerings.  Yet on the other hand state child protection laws routinely sanction the removal children from traditional families for even slight deviations from current fashions in education, child rearing, and medical treatment.

CIR’s effort to restore principle to this area of the law continues to focus on its representation of the Mueller family in their efforts to hold child protection officials and police officers accountable for the unconstitutional seizure of their infant child Taige. In August 2002, a few weeks after birth, she came down with a temperature. As a newborn child is especially vulnerable to infection, her mother, Corissa Mueller, was advised to take her to nearby St. Luke’s Medical Center.

Corissa—who has a degree in chemical engineering—discussed Taige’s treatment with the physician, including the risks and benefits of treating her for meningitis. Thinking Taige was suffering the aftereffects of the family’s recent bout with the flu,

“THE RIGHT TO FAMILY ASSOCIATION INCLUDES THE RIGHT OF PARENTS TO MAKE IMPORTANT MEDICAL DECISIONS FOR THEIR CHILDREN, AND OF CHILDREN TO HAVE THOSE DECISIONS MADE BY THEIR PARENTS RATHER THAN BY THE STATE”

WALLIS V. SPENCER, 202 F.3D 1125 (9TH CIR. 1999)

she asked to defer a spinal tap until other, less invasive (and less risky) treatments had been tried. The doctor agreed.

Unbeknownst to Corissa, though, the concerns she voiced about the risks of a spinal tap triggered a call to Child Protective Services (CPS), which then spiraled into the forcible seizure of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap. This happened despite the fact that, by then, Taige’s temperature had returned to normal.

Read what happened next….

The problem: no limits to child protective services

Though child protective services is supposed to protect chidren against neglect and abuse, it is not well situated to settle differences of opinion between a conscientious mother and an aggressive doctor. Corissa Mueller’s “neglect” in this case consisted in nothing more than discussing Taige’s treatment step by step and insisting on approving each procedure only when needed.

A child protective services system that countenances the seizure of a child to preempt further discussion about the risks of an invasive medical procedure no longer serves the interests of the children it was designed to protect.

At the root of the problem is the fact that the Idaho child protection law—and the laws of many other states—immunizes doctors, police and CPS workers from negligently applying the requirements of the CPS law. As a result, city and state officials and even private doctors know there is no penalty for assume custody of a child, even over a parent’s reasonable efforts to direct medical treatment.

Restoring limits and accountability to the system

In late August 2004, CIR filed suit in federal court in Boise, asserting that the Muellers possess a fundamental constitutional right to raise their children without unreasonable intrusion from state authorities.

CIR’s case hinges on the principle that the federal Constitution provides a fundamental guarantee of parental rights—including the right to make important medical decisions and the right to be informed of their children’s status and whereabouts.

On February 26, 2007, Judge B. Lynn Winmill agreed with CIR that the federal Constitution does not permit state officials to assume custody of a minor child over a difficult medical decision:

[A] DIFFICULT CHOICE — A CHOICE THAT POSES RISKS EITHER WAY — SHOULD NEVER TRIGGER INTERVENTION BY THE STATE. WITH NO SAFE ALTERNATIVE, THE STATE…LOSES ALL CLAIM TO MAKE DECISIONS FOR THE CHILD.

In addition, Winmill ruled that police officer Dale Rogers is liable in his personal capacity for failing to call Eric Mueller (who was at home with the couple’s other two children) to inform him of the state’s intention to assume custody fo Taige. Officer Rogers appealed his liability to the U.S. Court of Appeals for the Ninth Circuit, which heard argument on this question on September 15, 2008. You can read CIR’s brief on this issue here.

Von and Taige Mueller

Von and Taige Mueller

Following the Ninth Circuit’s ruling, the case will be remanded to the district court for a trial to settle various factual disputes about what happened that night in the emergency room. The Mueller case could spell out the federal constitutional limits on the authority of state officials to interfere with family decisions about medical, educational or other difficult issues. State officials no longer could presume a child to be in imminent danger solely to settle a disagreement over a complex decision.

Case Status: Loss by jury verdict at conclusion of trial.


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