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Can Faith Healthing Be a Crime? - Part II

By Greg Piche'

The anticipated criminal trials of Jeffrey and Marie Beagley and Carl and Raylene Worthington in Oregon and Dale and Leiloni Neumann in Wisconsin this year raise again the specter of legal confrontation between individual rights guaranteed by the First Amendment to the Constitution and the ?police power? of a state to protect children from harm. Some that holding ?strict constructionist? views of the bible firmly rely on their perception of Christ?s example in rejecting the benefits of modern medicine for prayer.

Life is much more complicated today than it was 2000 years ago. Prayer may have in fact been the safest or even the only remedy when Jesus roamed Palestine and life expectancy was short. Today, Jesus would find a more complicated regulatory environment within which to function. His suggestion of cures through the agency of prayer and perhaps the laying of hands were he to visit might deliver him to a confrontation with a state board of medicine rather than the traditional Pharisees. See for example, Board of Medical Quality Assurance v. Andrews, 260 Cal. Rptr 113 (Cal. App. Dist. 6, 1989)(injunction granted against religious school of natural hygiene relying on rest, natural diet, fasting, natural hygiene and prayer for relief from illness as the unauthorized practice of medicine without a California license).

 California has long permitted the criminal prosecution of parents who forego medical treatment for seriously ill children. See Walker v. Superior Court, 253 Cal. Rptr. (1989)   (parent may be prosecuted for involuntary manslaughter and felony child endangerment when her negligence in relying or prayer exclusively in lieu of treatment lead to the death of her child from meningitis).

The prosecution of criminal charges is frequently complicated by a number of state statutes restricting in various ways the prosecution faith healing as a crime. Thirty eight states have such statutes on their books. They proliferated as a result of pressure from various religious groups and ironically, through the office of the U.S. Department of Health and Human Welfare, (now Health and Humans Services) which in 1974 adopted a regulation requiring states to have a statutory exemption from criminal prosecution in their child abuse and neglect legislation. (This regulation no longer exists.)

Four states, Hawaii Massachusetts, Maryland and South Dakota have overturned similar statutes on constitutional grounds. In 2001, Colorado passed H.B. 1286, which made faith healing a crime under the State?s child abuse law when a child is a risk of dying.

In the Neumann case in Wisconsin, the statue reads as follows,

?948.03(6). A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing. . . in lieu of medical or surgical treatment.?

The question there is what factors beyond religious treatment ?solely?, may obviate the impact of the statute, if any. The statute may be viewed broadly or narrowly with different potential results. If read broadly, the statute could be an absolute bar to prosecution as long as the application of prayer and faith in the circumstances were pure and without ulterior motivation. On the other hand, it could be read narrowly to encompass an exception when there was no notice of the life threatening potential of the reliance on prayer in the circumstances. In the Neumann case, the parents apparently observed the slow progressive deterioration and dehydration of their daughter from diabetic ketoacidosis and her spiraling loss of function, while the child?s aunt in California desperately sought intervention of the local sheriff to obtain critical medical treatment, which arrived too late. 

The circumstances of this case are heart rending. Martyrdom can be an acceptable personal choice, but it is not and should not be an experience we have permission to bestow on minor children.

Full post as published by Healthcare Law Blog on January 28, 2009 (boomark / email).