Religious Exemption Laws for Provision of Medical Care to Children

Between 1982 and 2003, criminal charges filed in 58 cases of withholding medical care from children based on parental religious views; 55 involved fatalities (Merrick, 280). Re deaths of Christian Science children from untreated diabetes (diabetic ketoacidosis), bacterial meningitis, pneumonia, etc.: “In the three of the four criminal cases that have been overturned on appeal, each dismissal was based upon a violation of the parents’ rights to due process; however, the courts have agreed that religious exemption laws are not a defense of criminal neglect (269) . . . Christian Science’s defense under the U.S. Constitution may be a moot point. We are all afforded the right to practice or not practice the religious beliefs we choose; however, in the [Establishment Clause of the] First Amendment, the government is specifically proscribed from ‘recognizing’ any specific religion, therefore the majority of religious exemption laws may be unconstitutional. In Lemon v. Kurtzman (1971), supreme court held that legislative intent be secular and that a law must neither inhibit nor advance religion: “The spiritual exemptions fail to meet the first standard because they do not have a secular legislative interest. They were enacted specifically to provide prosecutorial relief from child abuse charges for parents who withhold medical care from their children based on the parents’ religious belief” (Merrick, 286; Hughes, 259, citing Justice Stanley Mosk, CA Chief Justice, in Walker) In Prince v. Massachusetts (1944) the U.S. Supreme Court majority ruled, “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. . . . parents may be free to become martyrs themselves. But it does not follow they are free . . . to make martyrs of their children before they have reached the age of full and legal [maturity]” (Hickey & Lyckholm, 269, 270’ Merrick, 283). Per Beauchamp and Childress “The argument can be made that a child’s life is more important than a set of beliefs or morals. These are not the child’s morals. It has often been argued, and most recently by Jeffrey Spike, who said, ‘The children are being raise in that community, yes, and by true believers, yes, but they deserve a chance to survive until they can judge for themselves whether to adhere to those beliefs’” (272). “Regardless of an adult’s theological convictions, however, he should not be free to withhold the healing power of medicine from a child because it is not in the child’s best interest to do so. The Christian Science Churches in Canada and Great Britain have accommodated to this policy. The Jehovah’s Witnesses in the US have accommodated to blood transfusions for their children. Members of churches that eschew conventional medical care for their children should also be required to accommodate. To do otherwise constitutes discrimination against their children as a class and perpetuates inequities in the healthcare system. . . . The goal of public policy should be to protect both the health of vulnerable children and the public at large. The spiritual exemptions create a legal landscape of confusion and contradiction. They create a burden for sick kids who could be healed through medicine, a burden for parents who have no direction about when withholding medical care becomes potentially criminal behavior and a burden for third parties who are at risk of becoming ill with vaccine-preventable diseases” (Merrick, 297-98). With James Dwyer, she advocates a class action lawsuit filed in federal court on behalf of children from whom medical care might be withheld as a result of the exemptions.” Despite constraints, this approach “has the greatest likelihood for success” (298).