I thought I would put this in a short update entry of its own, updating this entry. Christian readers, please pray concerning November 27. Judge Walker has been (inexplicably) permitted by the Nevada Supreme Court to continue his hearings on whether Elisa Bauer's baby is to be aborted, and he is expected to make some kind of decision on November 27. Walker now is apparently using a "best interests" standard, which is (from what I know) more usual in family court than a standard of "what the disabled woman would want if she weren't disabled." Not that this helps much, as it's entirely on the cards that Walker, whose legal excuse for intervening remains entirely cloudy, will decide that it is in Elisa's "best interests" that her child be aborted.
The Bauers' attorney, Jason Guinasso, is prepared to appeal if necessary.
[Update]: A happy surprise. The judge has said from the bench, as of today, that he has taken abortion off the table and will only continue to hold "medical evidentiary hearings" concerning the best way to treat Elisa through the pregnancy. The arrogance of Judge Walker remains in his keeping firm hold on his questionable authority to micro-manage Elisa's care. However, for whatever reason, he seems to have stopped seeking her child's life. We should hope and pray for better care for her in the future so that she isn't allowed to wander and be sexually exploited. We should also pray for the future of her baby, who hopefully will have wonderful adoptive parents.
Comments (9)
So now with the blessing of their supreme court, judges are creating cases out of thin air covering people who have not filed in their courts. Why not just dispense with the formalities, don body armor and a gun and go full Judge Dredd at this point?
Posted by Mike T | November 14, 2012 10:32 AM
This case gives a whole new meaning to "miscarriage of justice".
Posted by Peter Brown | November 14, 2012 12:42 PM
As barbaric as the proposal to compel a disabled woman to have an abortion by court order is, the Nevada Supreme Court's ruling was not, in and of itself, inexplicable.
It appears, from the court's order, that Nevada trial judges have certain administrative-oversight duties related to wardships. That is certainly not the separation-of-powers arrangement with which Americans are familiar from the federal system, but it is not, per se, unreasonable. The combination of the judicial and administrative or investigative functions is a principle element of most Continental judicial systems.
Maybe the system is a bad system as a matter of policy. But that doesn't tell us whether the Nevada Supreme Court acted correctly. They didn't say that the trial court could order the ward to have an abortion. Maybe that should have been the question. But the question they answered was whether the trial court complied with a particular legal standard relating to the conduct of oversight proceedings provided for by Nevada law. I'm certainly not willing to flail them for their reading of the applicable statute without evidence that they actually misread it.
Posted by Titus | November 14, 2012 5:09 PM
I know that. The first thing that occurred to me when I heard about this case was that it sounded more like a European judicial function than an American judicial function. I have always thought of the judicial function in America as being able to act only upon some presentation made to the judge in the form of something filed, rather than the judge's having an investigative role. The investigative role is supposed to devolve upon the executive branch. In family law, I've heard of that being carried out by Social Services, sometimes with the help of a warrant which they must get from a judge. Then they file a motion with a judge, who then says, "Oh, I see. Here is a motion before me. Now I both can and must take action," but not before.
What you are apparently saying is that the system in Nevada is fairly strongly different w.r.t. some areas--specifically, w.r.t. an adult ward whose guardianship has been granted to some parties (such as the Bauers), allowing judges to act sua sponte as investigators without having had to have any motion filed upon which they must act.
It seems to me that a greater separation of powers would be wiser, and that this case shows good reason why it would be. If nothing else, this allows judges to take it upon themselves to go on fishing expeditions regarding wards without any clear motion before them on the table.
Question: Does this combination of judicial, investigative, and administrative functions apply to *all* family law in Nevada? If so, the implications are fairly sweeping--to wit, that a judge could start investigating the medical care of any children in the state whatsoever on the basis merely of informal conversations with some social worker about that family and their children, informal conversations to which the parents were not privy. Then he could call the parents into the court room, ask them what the heck they were doing about Little Debbie's contraception and sexual health (or whatever), and snap at them if they dare to mention religion in response. Not good.
And indeed that very type of scenario, since it played out here, is a sign that this is probably not a wise system even if it is confined to wards.
Moreover, since the Nevada court never addressed whether Judge Walker could order an abortion, and since he insisted that he *did* have that power, consequent upon his "investigative hearings," this wardship law obviously leaves judges with the impression that they have something nigh unto unlimited power to micromanage the medical care, etc., of wards and order things dictatorially, to the point of having power of life and death over the unborn children of incompetent wards. Nothing in this case has corrected that impression. So maybe it's true. Maybe Nevada law does give judges that sweeping power. Not good.
Posted by Lydia | November 14, 2012 8:20 PM
Not germane to this topic, but I wonder if you peeps saw this one: http://www.bbc.co.uk/news/health-20268044
Posted by Mr. Fosi | November 14, 2012 10:44 PM
Yes, I did. Of course, it shouldn't matter to whether they live whether they have x or y degree of consciousness, but it still _should_ be a check to the hubris of the medical establishment in declaring that they have no consciousness.
Posted by Lydia | November 15, 2012 9:16 AM
I wanted to make another comment about the apparently European-style judge role in Nevada: Such a role makes a judge's hostility to religion especially problematic, as happened in the case of Judge Walker. Here's a parallel: Suppose that your local prosecutor could call you on the phone and tell you to come to his office so that he could review your familial decisions about your children. No, he tells you, you haven't been accused of any crime or wrong-doing, but he just wants to have an investigation of how you are doing as parents in, say, helping your daughter to make the transition to puberty. So he calls you in, and in the course of the conversation, when you mention the role of religion in teaching your daughter about chastity, he snaps, "Your religion has no role in my prosecutor's office. This is the government!"
This, of course, is no longer separation of church and state but separation of religion from private life itself whenever the government chooses to intervene, out of the blue, in that private life.
Something uncomfortably like this happened to the Bauers.
No doubt quite a few parents in Nevada are legal guardians of "wards" who are simply their mentally or physically disabled children who have passed the age of eighteen. If judges can summarily investigate their decisions for these "wards" and then rule religion out of the conversation, these families' ability to function normally in their private lives has been severely compromised. The implications for all kinds of things are frightening. Not only potential judge-ordered abortions for pregnant wards, as was apparently a possibility here, but judge-ordered death for the ward as well in foreseeable medical circumstances.
Posted by Lydia | November 15, 2012 9:39 AM
Look at the final comment on that BBC article-the one with 50 likes. A rather chilling comment.
Posted by MarcAnthony | November 15, 2012 12:17 PM
Which makes you wonder: I am pretty confident (but I haven't looked it up), that back in the 1800's parents of a mentally disabled child did not need to get the state to declare them guardians of their own child in order for them to BE the guardians, and to thus handle all duties and take all decisions thus involved. We are NOT TALKING about other adults stepping into the parents' shoes.
So, when did someone decide that it belonged to the state to appoint guardianship of an "adult" mentally disabled person to her own parents? Is that early 20th century, late, or what? And is the next step having the state take on the role of deciding to appoint guardianship of minor children to their own parents only if the state decides that's good?
Posted by Tony | November 15, 2012 8:48 PM