AFR News: Parental Rights- Habeas Corpus for Pelletiers: Trump Card or 'Hail Mary'?

April 15, 2014

Habeas Corpus for Pelletiers: Trump Card or 'Hail Mary'?

On Monday, Liberty Counsel filed a petition for a writ of habeas corpus in the Massachusetts Supreme Judicial Court on behalf of Justina Pelletier. Justina Pelletier is the 15-year-old who was taken from her parents last February because doctors at Boston Children’s Hospital disagreed with her prior diagnosis of mitochondrial disease. But is the habeas corpus a trump card, or more like a ‘Hail Mary’ pass?

“Habeas corpus demands a high standard, a very high standard,” ParentalRights.org president Michael Farris explains. “It is very rarely used. It is difficult to prove, to meet the standard.” But then he adds, “It’s for cases like this.”

The concept of habeas corpus, which in Latin means “you have the body,” dates back to the English Magna Carta, which turns 800 next year. A writ of habeas corpus is an order issued by a court to an agent of the state, to present a prisoner or ward at a certain date and time, and to be prepared to defend its legal decision to hold that person in custody.

In this case, Liberty Counsel is asking the Massachusetts Supreme Judicial Court to order the Department of Children and Families (DCF) to bring Justina to court and defend its actions in keeping her from her parents for more than a year. If DCF fails to do so, Justina must be returned to her parents on the spot.

So is it a trump card or a ‘Hail Mary’? In some ways it is both.

The habeas corpus is like a trump card in that it moves Justina’s case out of the court of judge Joseph Johnston, who has repeatedly kept Justina from her parents (though, as Liberty Counsel points out, never in a written order as required by state law). As an added advantage, a habeas corpus petition is also likely to be heard sooner than an appeal would be.

It is like a ‘Hail Mary’ in that success can be hard to achieve. As Farris pointed out, the standard is very high. The new court would have to find that DCF has essentially no reason whatever to take Justina out of her parents’ care. In this instance, from a lot of angles that seems to be exactly the case. But getting the judge to agree could prove a long shot.

It is not like a ‘Hail Mary,’ however, in one key respect: In football, that desperate pass play comes at the end of the game when there is no time for any other option. A failed ‘Hail Mary’ means a loss of the football game. In the case of the Pelletiers, however, options remain open even if the habeas corpus should fail.

ParentalRights.org is proud to be collaborating with Liberty Counsel on legislative solutions to this case, including the drafting of a bill currently being vetted for introduction in the Massachusetts legislature.

As you are able, please donate to support our ongoing efforts to preserve parents’ legal rights all over America. Even if you cannot give financially, spread the word to your family and friends and urge them to join the petition at ParentalRights.org/petition.

Sincerely,

Michael Ramey
Director of Communications & Research

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