UPDATE: May 18, 2015, 5:55 PM EDT
WEST PALM BEACH, Fla. (AP) — A judge expressed skepticism Monday that a long-running court battle over a Florida boy’s circumcision amounted to a constitutional issue worthy of being argued in federal court after being exhaustively litigated in state courts.
In the first hearing on the issue in federal court, U.S. District Judge Kenneth Marra questioned the attorney for the boy’s mother, Heather Hironimus, over the legality of proceeding with the case when a state judge had already ruled.
“Aren’t you really asking me to revisit and second-guess?” Marra said near the start of the 80-minute hearing in West Palm Beach.
Already a legal oddity for its subject matter, the long-running case between the boy’s estranged parents over the fate of his genitals got an extra dose of drama when Hironimus fled with the child nearly three months ago, going into hiding at a domestic violence shelter while a state judge warned she risked imprisonment for defying orders and refusing to appear in court. She was arrested Thursday and remains jailed.
Though Marra made no ruling in the case, he was often incredulous as Hironimus’ attorney, Thomas Hunker, contended the case could continue in federal court because it was filed on behalf of the boy, whereas the state case was simply between the parents. Hunker said the child’s interests were not fully and fairly represented in state court and that the boy had the right to make his own wishes known.
“So if the mother wants to have the child’s tonsils removed, you have to ask the child?” an obviously dubious Marra asked.
Hunker said because the procedure was not performed in the boy’s infancy, it had now grown to become a “life-and-death situation” involving the unnecessary risk of anesthesia. Though Marra quickly dismantled Hunker’s argument over the fairness of circumcising the boy at all when such a procedure would be barred as genital mutilation if he were a girl, the attorney sought to frame the case as having the ability to protect the constitutional right to bodily integrity.
“There has to be a limit to how far a parent can go to permanently alter a child’s body,” Hunker said.
Hironimus, 31, and the boy’s father, Dennis Nebus, have been warring since her pregnancy. They were never married but share custody of their child, and in a parenting agreement filed in court, the two agreed to the boy’s circumcision. The mother later changed her mind, giving way to the long legal battle. Circuit and appellate judges have sided with the father, but potential surgeons have backed out after failing to get the mother’s consent and becoming the target of protesters.
The federal case, contending the boy’s civil rights were being infringed upon, was filed while Hironimus was missing and her legal options evaporating.
Nebus’ attorney, Ira Marcus, said Hunker had not proven any constitutional violation and that Marra had no jurisdiction to prevent the circumcision from proceeding. He said the boy remained in the care of Nebus and that the surgery was not imminently scheduled. Marcus agreed to give Marra 10 days’ notice if he was proceeding with an appointment but rejected Hunker’s argument that the boy had a say in the matter.
“Minor children, up until the age of majority, do not make elective medical decisions,” he said. “Parents make those decisions.”
The case has stirred the attention of so-called “intactivists” who reject circumcision as barbaric, and a small group of protesters gathered outside the courthouse with signs including “Free Heather” and “Keep Foreskin and State Separate.” One of the advocates, Georganne Chapin, who leads the group Intact America, said the state court had “utterly disregarded the rights and wellbeing of the child.”
“It is a sad day in America when a mother is jailed for trying to protect her young son from another adult who is intent on cutting off a normal, healthy part of the boy’s genitals,” she said.
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