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God vs. the Gavel: Religion and the Rule of Law Excerpt from God vs. the Gavel: Religion and the Rule of Law

by Marci A. Hamilton

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Medical neglect

Religions like the First Church of Christ, Scientist, commonly known as Christian Science, that rely on faith rather than medicine to cure illness have obtained a number of exemptions in the states from laws that normally protect children. For example, all states except Mississippi and West Virginia permit parents to refuse to vaccinate their children on religious grounds. Many have exemptions from newborn testing. There are also many exemptions from the requirement of providing medical care to a sick child.

The federal government is partly at fault for the many state exemptions permitting the medical neglect of children. From 1974 to 1983, the states were required to enact such exemptions to qualify for federal funding related to children. In other words, the states would not receive federal funding unless they instituted exemptions. It was a classic carrot-and-stick approach, and roughly 30 states plus the District of Columbia now have exemptions for religious parents from the medical neglect laws. In effect, this means that faith-healing parents need not obtain medical care for their children unless the children are near death or permanent disability, and even then, in some states, the parents may be immunized from manslaughter or felonious murder charges. From the children's perspective, the harm is even more imminent than it would be if the parents were acting out of secular motivation, because in too many circumstances, the parents either do not recognize serious illness and imminent death, or they hold the misguided belief that they should not be subject to the law. Whether they see imminent harm or state interference, they may be motivated to hide their extremely ill children from the authorities whose job it is to ensure that children do not die or suffer permanent disability from medical neglect. The result is suffering, unnecessary death, and the martyrdom of children who have not been permitted to reach adulthood when they could make an informed choice to live or die for their religious beliefs.

Some may argue that parents have a right to teach their children any religious belief they choose, and they would be correct. But parents do not have an unfettered right to act in ways that harm their children, even if they are acting on religious beliefs. It is now well settled that religious motivation is no defense to illegal conduct. In addition, the Supreme Court has explained that children have rights independent of their parents:

Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full legal discretion when they can make that choice for themselves.

The preeminent right is the right to live, so the exemptions do raise some interesting constitutional questions whether a child might well have a constitutional (as well as a statutory) right to receive medical treatment despite the parents' beliefs. At the very least, the Constitution does not prohibit the states from mandating medical treatment for seriously ill children of faith-healing parents. The religious entities' capacity to avoid the child-welfare laws is derived from their political power and moxie, not any constitutional right.

Despite the value normally placed on life in this society, and the many laws that deter individuals from causing or permitting others to die, states frequently provide religious exemptions when the victim is a child. While abortion has the attention of the American public, deaths of children arising from religiously motivated conduct have not galvanized the people. The problem is education. Few -- other than those who benefit and the legislators that grant the benefit -- know about or understand the exemptions or their consequences. Yet, exemptions for medical neglect are pervasive. A total of 32 states provide a defense for felonious child neglect, manslaughter, or murder, where the child's life was sacrificed for religious reasons, as well as a religious defense for misdemeanors arising from physical harm to children resulting from medical neglect. When a child dies as a result of the parents' religious motivation, at least one court has taken the position that the contrast between civil exemption from abuse and generally applicable homicide laws creates enough uncertainty to deny the religious defendant due process of law. In other words, the current rule in Florida is that an exemption from civil or lesser causes of action for medical neglect entails an exemption from related crimes. To be clear, these exemptions are not benign grants of religious liberty with no victims. They mean that religious parents and caretakers may not be charged with the crimes specified when their child dies from lack of readily available medical treatment. The exemptions erase the deterrence function of the criminal laws and enable devout adult believers who would martyr their children for the parents' faith to remain a serious risk to children. They also send a message that it is acceptable to let one's child die, if the death is the result of the parents' belief, which is to say, the child's life is not all that valuable. These exemptions are particularly ironic in states with strong antiabortion measures. It is a familiar lament among children's advocates that many in the United States value a fetus's right to live more than a child's.

The Christian Scientists have put significant pressure on state and federal legislatures for the purpose of obtaining exemptions from the medical neglect laws, although they are not always the only religious entity that benefits. As the number of exemptions shows, they have been quite successful. Christian Science theology teaches that modern medicine is unnecessary, because "[h]ealth is not a condition of matter, but of Mind," and that illness is evidence of sin that needs to be treated by prayer. Yet, Christian Science leaders claim that their theology does not prohibit medical care, which implies that believers have a choice between medical care and prayer alone. Indeed, when challenged, they will defend their faith by saying that prayer is not the only option, just the preferred option. For example, a teenage girl had a broken ankle and was asked by her parents what she "wanted to do -- pray or go to a hospital. [She] felt prayer was reliable."

If one follows the logic of this supposed choice, it also seems to imply that deaths by medical neglect are not the responsibility of the church. The Church can and will say the parents had a choice. Yet, the failure to rely on prayer alone is looked upon as a serious spiritual failing, and Christian Science practitioners often chide worried parents not to give into the temptation to obtain medical attention and to pray more fervently, which translates into a message that those who face the most dire medical emergencies are holier if they avoid medical treatments. An editor of the Christian Science Sentinel wrote that the "most impressive and persuasive ways [to show their children God loved them] often had to do with turning to God for healthcare. Children remember being healed, thanks to prayer alone, of children's diseases, organic problems, hernia, mononucleosis, serious sports injuries." In Mary Baker Eddy's words, "The habitual struggle to be always good is unceasing prayer," a sentiment that has been translated by contemporary Christian Scientists to mean that "[d]isease really has mental roots. If you go to the root of the problem in thought -- and fear is usually a factor -- you'll eliminate it." Moreover, the institution supports, trains, and provides faith-healing caretakers to offer end-of-life care. These caretakers are deemed "practitioners" and "nurses," although they may have no medical training, and if they do, must renounce it. Christian Science treatment centers are, in fact, hospices where no medical science is practiced and no pain medication is provided, but minimal bodily needs are tended to as the patient expires. They are supported in no small part through medicare funding.

Historically, Christian Scientists have put a great deal of effort into seeking exemptions from federal and state laws that would otherwise hold faith-healing parents accountable for harm done to their children. They testified and argued in favor of the federal Regulation -- now repealed -- that forced states to enact medical neglect exemptions in order to obtain federal aid. They also have been active in state legislatures. At least one of their former members is trying to put a stop to the Christian Scientists' efforts. Rita Swan, a former Christian Scientist whose 16-month-old son, Matthew, died of spinal meningitis as a result of religiously motivated medical neglect, now lobbies to protect children from faith healing. She and Seth Asser, M.D. (Dept. of Pediatrics at U.C.S.D. School of Med.), co-wrote an article detailing the deaths of more than 200 children from medical neglect during the years 1975-95.

Even when there is an exemption for faith healing, the state typically will intervene to protect the child if they know about the child's situation. That does not mean children survive faith healing. A religious exemption permits the religious parent to initiate care on the basis of prayer alone, and getting the parent to move off that path onto the path of medical care can be difficult. Thus, if the untreated child of faith-healing parents noticeably starts to decline, it is often the case that the believers will actively attempt to keep the child from view so as to avoid state intervention.

When a child dies of a treatable medical ailment resulting from faith healing, practitioners (and churches) often raise a First Amendment defense, even to criminal charges. There are two legal regimes governing medical neglect across the states -- those that treat religious parents like other citizens, and hold them accountable, and those that exempt the faith-healing parent or church and therefore make them unaccountable for the harm they inflict on an untreated ill child. The first illustrates the principles of the rule of law and the no-harm principle. The second shows overzealous state legislatures that have confused liberty with lawlessness and sacrificed children on the altar of religious anarchy.

Oregon, beginning in 1995, exempted faith-healing parents from its criminal laws, which is to say religiously motivated parents could raise an affirmative defense to criminal liability simply by proving their belief in prayer alone to heal. In 1997 and 1998, the Followers of Christ Church in Oregon City, Oregon, allowed three children to die of medical neglect. During the subsequent investigation, authorities discovered a cemetery of 78 children, and the alarm bells began to ring. Medical authorities estimated that 21 of the deceased children could have been saved by routine medical care, and 38 died before their first birthday. Prosecutors were determined to convict those responsible for the infant deaths, but were stymied by Oregon law that allowed individuals who let their children die as a result of their religious beliefs to use their faith as a defense in homicide and child abuse prosecutions. "It is an affirmative defense to a charge of [criminal homicide by neglect or maltreatment] that the child or dependent person was under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the child or person or the parent or guardian of the child or person." Prosecutors, and the public, were outraged. Children were dying for no good reason. Yet, a bill that was introduced to make religious parents accountable for the death of a child failed in most regards. Despite the overwhelming amount of factual evidence, Oregon continues to maintain a religious exemption for felony murder, which means the most serious available charge against a parent who lets a child die of a treatable medical ailment is second degree manslaughter. Oregon's failure to repeal the affirmative defense for the most serious crimes devalues the lives of children who die at the hands of their religious parents.

In contrast, California legislation places religious parents and caretakers on a level playing field with all others who commit manslaughter. Laurie Grouard Walker, who was a Christian Scientist, treated her four-year-old daughter for bacterial meningitis solely with prayer, and the child died. When the Sacramento District Attorney's Office filed criminal charges against the mother, she argued that she was "absolutely protected" from criminal liability by the religion clauses of the federal and California constitutions. The mother and the church (which was not a defendant, but filed a friend-of-the-court brief in support of the mother) also claimed that the court must consider the least restrictive alternative for punishing her. They argued that criminal liability was too burdensome on religious belief and that civil dependency proceedings would further the government's interest in a way that was less burdensome on the mother's religious beliefs. In other words, the mother argued that she need not be criminally liable for the preventable death of a child, because the death was a result of religiously motivated conduct, and that civil penalties would be sufficient. In other words, the sole frame of reference was supposed to be the adult believer's faith, rather than the best interests of the child. The court rejected these arguments, because the interest in deterring the death of children was so high, and held that there is no less restrictive or more effective way to deter parents from letting their children die. Even so, the mother reached an agreement with the district attorney that amounted to no jail time, less than five years' probation, a $300 fine, and community service. In addition, her teenage daughter was to be permitted to choose between her mother's beliefs and modern medical science. Considering she permitted a child to die, the failure to sentence this mother to any jail time is troubling, but at least criminal liability attached to a parent's actions that culminated in the death of her child.

Similar arguments were raised in a suburban Minneapolis, Minnesota, case where a divorced, Christian Science mother let her son die the agonizing death of an untreated diabetic. Had he been seen by a medical professional during the last weeks of his life, Ian Lundman's symptoms would have been easily diagnosed as diabetes. Insulin, administered as late as a few hours before death, would have saved him. Yet, his mother entrusted him to Christian Science caretakers, who cared for him by "reading hymnals to him." His condition worsened to the point that his mother knew she should seek outside help, but she did not. The boy died after three days of excruciating suffering. The father, who no longer subscribed to the Christian Science faith, had left the family before Ian became ill. When he learned of his son's death, he sued his wife, the church, and the practitioners who treated Ian for wrongful death. Following a seven-week trial, a jury awarded the father $14.2 million -- $5.2 million in compensatory damages and $9 million in punitive damages, an award that had tremendous deterrence potential.

Compensatory damages are awarded to redress the actual harm to the victim, while punitive damages are granted for reprehensible behavior that deeply offends U.S. values. The defendants raised a religious defense to the award, arguing that the damages were precluded by their free-exercise rights. While the court properly found that the mother and the Christian Science practitioners did not have a free-exercise right to avoid damages for their conduct, it absolved the church. The appellate court held that the church had no duty to Ian, because "[t]o rule otherwise would make too much of the consequences of the church's adherence to and promotion of its core tenet." The church that inculcated the dangerous beliefs was held harmless, while the mother and the practitioners did have a duty to the child. In other words, the court ruled that a sect's beliefs can immunize it from responsibility for the natural consequences of its members' actions. Though it would not hold the church accountable for the death, the court found that it was perfectly proper for "disputes involving the consequences of religious-based conduct [to] be brought before the civil courts where, as here, the underlying lawsuit is not a vehicle for attacking religious belief." With respect to the church, this was a pyrrhic victory, at best.

The Minnesota Supreme Court reversed the punitive damage award, but allowed the compensatory damages (then reduced by the trial court to $1.5 million) to stand. The punitives were rejected because of the religious character of the neglect: "We do not grant churches and religious bodies a categorical exemption from liability for punitive damages. But under these facts, the risk of intruding -- through the mechanism of punitive damages -- upon the forbidden field of religious freedom is simply too great." This is indefensible reasoning. In effect, the court ruled that religiously motivated individuals who let children die extremely painful deaths do not need to be deterred. The opposite is in fact true. Religious conduct occupies no "forbidden field," but rather stands shoulder-to-shoulder with all other conduct that engenders the same harm. The question was whether the behavior was so reprehensible as to deserve punitives. Obviously, a jury thought so.

Sometimes the state gives up, even when the child is in plain danger. While the Church of Jesus Christ of Latter-day Saints does not endorse faith healing alone, some adherents disfavor medical treatment. During the fall of 2003, a drama began in the state of Utah involving Mormon parents, and their 12-year-old son, Parker Jensen, who was diagnosed with Ewing's sarcoma, which is a lethal cancer. Doctors recommended chemotherapy, and gave him a 70 percent chance of surviving with the treatment, and only 20 percent without it. His parents, Daren and Barbara Jensen, refused the treatment, saying he did not have cancer and several days later asserted that the treatment would make him sterile and impede his growth. They fled Utah and were wanted for kidnapping, but when they voluntarily returned, the state announced it would not seek custody of the boy for medical purposes, because the Jensens agreed to abide by the recommendations of an oncologist. When the state backed out of the picture, and the oncologist recommended nearly a year of chemotherapy and a bone marrow test, they once again asserted the cancer did not exist and refused to follow the doctor's recommendation. The Utah legislature has responded to the drama by pursuing a bill that would increase parents' rights to deny medical treatment to their children.

Infants have no chance when their religiously motivated parents do not feed them. There is a recurring belief on the part of a small but significant number of religious parents that a baby should not be defiled by ordinary sustenance. One pregnant mother, Karen Robidoux, who was a member of a cult called "The Body," submitted to her sister-in-law's "vision from God" that required her to take her infant son Samuel (who was the son of the cult's leader, Jacques Robidoux) off of solid food and to revert back to breast milk only. "Dubbed The Body, the isolationist group believes in paddling children as young as one and rejects the authority of the government and doctors." The mother was relegated to the basement and threatened with losing her unborn child if she did not follow the prophecy. When her body stopped producing adequate milk for him, baby Samuel wasted away and eventually died just before his first birthday. The mother was acquitted by a jury of second-degree murder, because she claimed that she had been brainwashed and lacked the requisite intent. Instead, the jury convicted her of assault and battery. Her sister-in-law pled guilty to being an accessory to assault. In contrast, a jury convicted the baby's father of first-degree murder, and he received life in prison for the death of his son. That was precisely the right result for the father. Prosecutors are still shaking their heads, however, over the fact that the mother received only assault and battery for letting her son die day-by-day of starvation.

Copyright 2005 Marci A. Hamilton