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Dad Troubled by 10th Circuit Decision Against Right to Determine Son’s Cancer Care

Posted May 6, 2010 11:16 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that a Utah couple is not entitled to pursue damages against state officials who sought to force their son to undergo chemotherapy for Ewing's sarcoma.

The Denver-based 10th U.S. Circuit Court of Appeals held in a May 5 opinion (PDF) that the state officials were immune from liability. “When a child’s life is under immediate threat, a state’s interest in protecting the child is at its zenith, and a state has broad authority to intervene in parental decisionmaking that produces the threat to the child’s life,” the court said.

The boy whose medical care was at issue, Parker Jensen, was 12 at the start of the legal fight, the Salt Lake Tribune reports. He is now 19 and serving on a church mission in Chile. He was treated only with vitamins and antioxidants.

The state had sued Daren and Barbara Jensen for medical neglect, pointing out that seven medical doctors said he needed chemotherapy to save his life. The state later abandoned the suit after a new assistant attorney general took over the case.

The Jensens then sued state child welfare workers and doctors, along with the first assistant attorney general who handled the case against them. They claimed a violation of due process rights to determine their son’s care and to family association, their procedural due process rights, and the Fourth Amendment right to be free from seizure.

The 10th Circuit found that the Jensens failed to show that any of the officials violated their clearly established constitutional rights.

Daren Jensen told the Salt Lake Tribune that parents everywhere should be concerned about the 10th Circuit ruling. "It's troubling that the state can exercise their will without any regard for parental decision," he said. "It puts our children in danger."

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