The Commerce Clause Meets The Justina Pelletier Case

An Opinion

Let me first lay out the facts in the Pelletier case as I understand them:

- Justina, 14 years old - now 15, (and her parents) are residents of the State of Connecticut.

- Justin's parents transported Justina to Massachusetts as the result of a referral from Tuff's Medical Center in Connecticut.

- The referral doctor, Dr. Mark Korson, in turn wanted her to see a gastroenterologist who was in residence at Boston Children's Hospital (BCH).

- After only 3 days at BCH, her diagnosis was altered.

- Justina has been held without parental consent for over 14 months by the State of Massachusetts.

- She is being held as a "ward of the state" by Massachusetts' Department of Children and Families.

- The MA doctor ( Dr. Bujoreanu) made the new diagnosis of "Somatoform disorder", a psychological issue, with little examination of Justina.

- Justina's original doctors from Tuff's had made a diagnosis of Mitochondrial disease, a purely physical disease.

- Prior to Jusinta's "incarceration", she was a competitive ice skater; now she is wheelchair bound.

- This Dr. Bujoreanu maintains a theory that up to 50% of all children with physical symptoms are, in fact mental not physical in nature.

- In fact, she has a substantial financial grant to "prove" her theory. This grant is from the federally funded National Institutes of Health.

Editorial note 1: The above 2 facts, in and of themselves, should be a clue as to what is really going on. If those 2 aren't enough, check out this next one.

- The Boston Children’s Hospital's own policies (i.e., “Clinical Investigations Policy and Procedure Manual) state: “Children who are Wards of the state may be included in research that presents minimal risk…or greater than minimal risk with a prospect of direct benefit."

Editorial note 2: Josef Mengele would be ever so proud!

- The judge in the case, Joseph Johnston, (i.e., The MA courts) ruled that Justina be a permanent ward of the State. Johnston, as one of his main reasons for his decision, offered that the child's parents had been rude to people within the Department of Children and Families.

- In addition, this "judge" has ruled that the parents have severely restricted visitation rights. Such as, any vists by Justina's parents must be "supervised". Even the Boston Bomber is allowed unsupervised family visits.

- The "judge" has also ruled that Justina be denied her choice of legal representation.

- Further, the young girl, a Roman Catholic, has been forbidden to have a priest visit, and forbidden to attend Mass, including Christmas and Easter.

- There is so much more to this case. But, all the facts seem to force one to wonder if this isn't a coverup to hide some really terrible MalPractice issue by the State, its DCF and BCH.

Now, to my point and position:

Those who know me are well aware that I hold that the Federal Government should be involved not at all in matters such as these. The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The powers delegated to the United States government are spelled out in Article 1, Section 8 of our Constitution.

However, the federal government has successfully used the "Commerce Clause" as an avenue to increase its power and hold over not only the States but over the citizenry as well.

The "Commerce Clause", Article I, Section 8, Clause 3, simply states: [The Congress shall have Power] "To regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes". Nothing more!

However, since the 1824 case of Gibbons v. Ogden, what was then referred to as that "modest little power" has ever so positively grown, essentially, to grant the federal government powers far beyond those envisioned by the original crafters of the US Constitution.

The original intent of the Commerce Clause was to prevent States from instituting tariffs on or restrictions of commerce conducted inter-State.

So, I advocate the use of this Clause to obtain Justina's freedom - against my normal views.

As the United States government, via the Commerce Clause, deems it constitutional to proscribe what kinds of light bulbs we use and to dictate what maximum water pressure our homes may have, clearly they could intervene in a case such as Justina's.

The MA courts "ruled" that a minor child may be taken from her parents to support some "experiment" deemed necessary by a State agency.

Is this not tantamount to declaring Justina "property of the State"?

And, surely, the DCF and the State of Massachusetts, for that matter, use products/materials that originated outside the MA State boundaries; specifically, Justina in this case.

Therefore, it seems clear that the Commerce Clause would come into play in the Justina case.

As such, the DCF and the MA courts are restricting "property" from being transported across State lines.

Or, at the least the Federal Kidnapping Act 18 U.S.C. § 1201 seems to have been violated in this case - independent of some "judge's" rulings. And, if not this, then the 4th Amendment surely applies: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

And, most certainly the 14th Amendment's "Due Process Clause" applies directly: The Due Process Clause prohibits state and local government officials from depriving persons of life, liberty, or property without legislative authorization.

This clause has also been used by the federal judiciary to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural requirements that state laws must satisfy.

Therefore, it seems logical that the Commerce Clause could and should be applied in the freedom of Justina Pelletier as well as applying other Justice Department actions against the State of Massachusetts, the DCF, and the BCH.

Congress should act on this matter immediately.