Here's a summary of @BarristerSecret's Tweets on #AlfieEvans.https://twitter.com/barristersecret/status/989208540194754565 …
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Replying to @gorskon @BarristerSecret
ASIDE FROM THE QUAINT BRITISH LINGUISTIC TRADITION OF PRETENDING THE JUDICIARY IS NOT PART OF "THE GOVERNMENT", FACT REMAINS THAT UK LAW AND US LAW DO DIFFER SEVERELY IN THESE AREAS, AND THIS OUTCOME COULD NEVER HAPPEN HERE, AS A MATTER OF BASIC CONSTITUTIONAL LAW.
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PARENTAL RIGHTS ARE HIGHLY CONSTITUTIONALIZED (SEE TROXEL V. GRANVILLE). THE STATES ARE BOUND VIA INCORPORATION. AND THE JUDICIARY ORDERING ONLY PALLIATIVE CARE, NO MATTER HOW WELL INFORMED A DECISION IT MIGHT BE MEDICALLY, WOULD BE A CLEAR 5TH AMENDMENT "TAKING" OF LIFE. ETC.
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Parental rights do have a very high status, but they're not absolute - court have overridden them in the interest of the child before. The problem is that in most of those cases the scenario is the opposite - the parents want to cease treatment or not give treatment, v. hospital.
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IANAL, but I'm pretty sure that the best interest of the child is the legal standard in the US too. I've blogged about cases where the courts ordered chemotherapy for children with cancer whose parents didn't want it, preferring quackery instead.
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BEST INTEREST OF THE CHILD IS STILL THE STANDARD ON PAPER, BUT SINCE TROXEL, THAT HAS BECOME SOMETHING OF A FICTION, AS ANY SIGNIFICANT DECISION THAT WOULD OVERRIDE PARENTAL DECISIONMAKING BECOMES HIGH CONSTITUTIONAL THEATRE.
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Replying to @RepublicanDalek @gorskon and
AS YOU AND THE OTHER HUMAN POINT OUT, COURTS (RARELY) OVERRIDE AND ORDER MEDICAL TREATMENT. THAT IS ESSENTIALLY A JUDGMENT THAT DENYING CARE AMOUNTS TO CHILD ABUSE, WHICH (ONLY PARTIALLY) CONFLICTS WITH PARENTAL CON RIGHTS. BUT ORDERING *NON-TREATMENT*?
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There is no legal barrier. It would run against cultural and political barriers.
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That was my thought. After all, Rand Paul himself said in the context of vaccine mandates, "The state doesn’t own the children. Parents own the children, and it is an issue of freedom." Yes, he really said that.https://respectfulinsolence.com/2015/02/03/is-republican-party-becoming-antivaccine-party/ …
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HE'S NOT WRONG IN HOW FAMILY LAW TREATS KIDS (CHATTEL). PARENTAL RIGHTS IN THE FAMILY LAW CONTEXT ARE CONSTITUTIONAL. THERE IS NO COMPARABLE DOCTRINE TO PROTECT THE CHILD. IT GETS DOWNRIGHT BIZARRE.
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He's also expressing approval. This pervasive attitude that children are the parents' property is a HUGE problem that makes protecting children from medical neglect so difficult.
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HE'S ALSO WRONG IN VACCINE CONTEXT, AS AN OLD SCOTUS CASE, JACOBSON, MAKES CLEAR THAT INDIVIDUAL CONSTITUTIONAL RIGHTS CAN BE SUBORDINATED TO PUBLIC HEALTH. THOUGH JACOBSON HAILS FROM HIGH EUGENICS/ANTI-IMMIGRANT PHASE OF SCOTUS, AND MAKES MANY SCHOLARS TODAY A BIT... QUEASY.
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I would draw on Prince v. Massachusetts. Although the text there is obiter, it's very persuasive obiter, and draws on Jacobson and several other cases.
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