Part 2 of 2
In a 1944 Supreme Court case (Prince v. Massachusetts), the justices ruled in a 5-4 decision that parental authority is not absolute and can be restricted by the government if doing so is in the best interest of a child's well being. Writing for the majority, Justice Wiley Rutledge stated, "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves."
One would think this straightforward pronouncement would have settled the issue of the culpability of faith-healing parents whose children die because they are denied standard medical treatment. In a 2001 Time magazine article, "Freedom of Religion or State-Sanctioned Child Abuse?" staff writer Jessica Reaves noted that the 1944 Prince decision, as well as legislation at the state level that would have limited or ended the faith-healing religious exemption from prosecution under child-abuse laws, has been successfully countered by church-based "political action committees." Reaves noted that "the Church of Christ Scientist, whose members are fiercely opposed to medical intervention, is a powerful voice on Capitol Hill as well as in local town halls; the church's lobbying efforts have kept reforms at bay in most states for years."
(I sent the paragraph above to The First Church of Christ, Scientist's national office, asked if they cared to respond and received the following: "The Christian Science Church continues to support accommodations for the responsible practice of spiritual healing, always giving special attention to the need and circumstances of each State. We've found nationwide that states will accommodate responsible health care practices that are outside the mainstream, such as religious, non-medical care. We've also found that although no system of health care claims a perfect record, people do expect a reasonable measure of success. There's a duty to practice this type of health care reasonably, especially when it comes to children. Protecting children's lives is a standard we should all be held to no matter what means of care we choose.")
As of 2009, 30 states provided some manner of religious exemptions to child abuse or neglect for practitioners of religious healing, including parents. Robert Tuttle, professor of law and religion at George Washington University, notes that these exemptions differ significantly in breadth. In some states (West Virginia and Arkansas, for example) even if a child dies as a result of his/her parent's decision to rely on prayer rather than standard medical treatment, these individuals are generally immune from prosecution. In other states, parents are exempt from prosecution only if the child is not seriously harmed.
In his book "When Prayer Fails: Faith Healing, Children, and the Law" (2008), Shawn Peters argues that exemption statutes have successfully prevented the criminal justice system from prosecuting many parents who refuse to provide medical attention for their children for faith-based reasons. To begin, prosecutors are often reluctant to bring charges against grieving parents who have lost a child. Perhaps fearing a political backlash, some district attorneys do not want to be perceived as insensitive to the constitutional rights of parents. In addition, when a case appears to be one of religious-based neglect, law enforcement may conduct little more than a cursory examination of the incident, making a successful criminal prosecution difficult to achieve. Finally, prosecutors may decline to file charges believing that even convictions will not deter faith-healing zealots from treating their children's medical problems via spiritual means alone.
Prosecutors have also learned that convictions in faith-based cases often result in minimal punishment. In 2009, a Wisconsin couple was convicted of letting their 11 year-old daughter die from an undiagnosed but treatable form of cancer. Affiliated with the Unleavened Bread Ministries (the couple prayed with church members while their daughter died), they could have received a 25-year prison sentence. Instead they were sentenced to six months in jail, to be served one month a year, and 10 years' probation. Peters argues that deferring to First Amendment freedoms "has typified the overcautiousness by all three branches of government in dealing with crimes related to prayer-based rituals."
Speaking of the faith-based healing exemption from child abuse laws, pediatrician Seth Asser stated, "Kids die from accidental deployment of air bags and you get hearings in Congress. But this goes on, and dozens die and people think there's no problem because the deaths happen one at a time. But the kids who die suffer horribly. This is Jonestown in slow motion."
Over the past decade, the political tide has been slowly turning against faith-based healing parents who withhold medical treatment from their children. In late May of this year, Oregon, a state that had been described as having a "two-track legal system" (one track designed to permit exemptions for faith-based denial of medical intervention), passed legislation eliminating spiritual treatment as a defense to certain crimes wherein the victim is under 18 years of age.
College of William & Mary Law School professor James Dwyer argues there are three fundamental positions regarding parental exemption from the legal responsibility to obtain medical treatment for their sick or injured children:
1) Parents should have an absolute exemption and be allowed to practice faith healing exclusively without fear of punishment from the state.
2) There should be no religious exemption whatsoever, and parents must contact medical professionals whenever their children are sick or injured.
3) Parents should be exempt from having to contact medical health professionals in all but life-threatening situations.
While the third alternative would appear to a be reasonable compromise, the question immediately arises: What is a "life-threatening situation," and who makes that determination? The parents or medical professionals? If the situation is not life threatening, intervention on the part of the state (via medical professionals) could be construed as a violation of religious freedom. If the medical intervention comes too late, the child might suffer needlessly and die.
Laws in a democratic society exist in a delicate balance as one right must be balanced in terms of one or more related rights. For example, individuals on both the political right and left have argued that our fundamental rights to privacy were undermined by the Patriot Act passed in the aftermath of the Sept. 11, 2001, terrorist attacks. Defenders of the act state that at this moment in our history, national security is paramount and individual privacy rights must be compromised (at least temporarily) to some degree.
What is the proper balance between religious freedom and the protection of children's health and civil rights? Does (should) the First Amendment shield parents from criminal prosecution when the exclusive reliance on prayer results in the illness, injury or death of their children?
Freedom of religion is a fundamental right in a democratic society, and curbing this freedom should not be taken lightly. However, a strong argument can be made that the foremost responsibility of government is the protection of its citizens, especially those who are most vulnerable: the young and the old.
Regarding the issue of parents, children, faith healing and the law, Stanley Carlson-Thies, president of the International Religious Freedom Alliance, states, "If a child is involved, unable to make his or her own decision, the case for the government is stronger." For John Witte Jr. of Emory Law School, "in a serious illness, a child's right to life trumps a parent's right to religion. Faith healing should complement, not compete with proper medical care."
George Bryjak lives in Bloomingdale, retired after 24 years of teaching sociology as a professor at the University of San Diego.
Asser, S. and R. Swan (1998) "Child Fatalities from Religious Motivated Medical Neglect," "Pediatrics 101," pp. 525-629
Dywer, J. (2000) "Spiritual Treatment Exemptions To Child Medical Neglect Laws: What We Outsiders Should Think," Notre Dame Law Review, No. 147, pp. 147-196
Larabee, M. (Nov. 28, 1998) "When prayer pre-empts medical care, prosecutors nationwide struggle to respect parents' freedoms while protecting children's lives" The Oregonian, blog.oregonlive.com
"Faith Healing and the Law" (Aug. 31, 2009) The Pew Forum on Religion & Public Life, pewforum.org
Frey, S (July 18, 2011) Personal correspondence, The Church of Christ Science
Larabee, M. (Jan. 22, 1999) "Bill Aims to Lift Oregon's Religious Shields" The Oregonian, blog.oregonlive.com
Moon, R. (June 25, 2011) "Should Faith Healing be Legally Protected?" Christianity Today, www.christianitytoday.com
Nielsen, S. (May 15, 2011) "Faith Healing: Finally Oregon Looks and Sees the Emergency," OregonLive.com, blog.oregonlive.com
"Oregon House Bill 2721" (2011) OregonLive.com, oregonlive.com
Peters, S. (Dec. 13, 2007) "The Lord Taketh Away," The University of Chicago Divinity School, divinityuchicago.edu
Peters, S. (2008) "When Prayer Fails: Faith Healing, Children, and the Law," Oxford University Press: New York
Raferty, I. (May 30, 2011) "Changes in Oregon Law Put Faith-Healing Parents on Trial" New York Times
Reaves, J. (Feb. 21, 2001) "Freedom of Religion or State-Sanctioned Child Abuse?" Time, www.time.com
Turley, J. (Nov. 15, 2009) "When a Child Dies, Faith Is No Defense" The Washington Post, www.washingtonpost.com