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Spiritual Healing, Sick Kids and the Law: Inequities in the American Healthcare System

Published online by Cambridge University Press:  06 January 2021

Janna C. Merrick
Janna C. Merrick*
Affiliation:
University of Puget Sound; University of Washington
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Extract

Main Street in Sarasota, Florida. A high-tech medical arts building rises from the east end, the county's historic three-story courthouse is two blocks to the west and sandwiched in between is the First Church of Christ, Scientist. A verse inscribed on the wall behind the pulpit of the church reads: “Divine Love Always Has Met and Always Will Meet Every Human Need.” This is the church where William and Christine Hermanson worshipped. It is just a few steps away from the courthouse where they were convicted of child abuse and third-degree murder for failing to provide conventional medical care for their seven-year-old daughter.

This Article is about the intersection of “divine love” and “the best interests of the child.” It is about a pluralistic society where the dominant culture reveres medical science, but where a religious minority shuns and perhaps fears that same medical science. It is also about the struggle among different religious interests to define the legal rights of the citizenry.

Type
Research Article
Information
American Journal of Law & Medicine , Volume 29 , Issue 2-3 , June 2003 , pp. 269 - 299
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

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References

1 Dean Schabner, No Cure For Cancer: Tenn. Mom, Preacher Accused of Letting Girl Die by Turning to God, Oct. 3, 2002, at http://abcnews.go.com/sections/us/DailyNews/religious_defense021003.html (last visited March 21, 2003).

2 NAT’L CTR. FOR COMPLIMENTARY & ALTERNATIVE MED., NAT’L INST. FOR HEALTH (NIH), EXPLORATORY PROGRAM GRANTS FOR FRONTIER MEDICINE RESEARCH, at http://grants1.nih.gov/grants/guide/rfa-files/RFA-AT-00-002.html (June 12, 2000).

3 This Article does not discuss the case of Jehovah's Witness children for two reasons. First, as is well known, Jehovah's Witnesses, although utilizing conventional medical care, historically refused blood transfusions even when such transfusions were life-saving procedures. When parents refused transfusions for their minor children, healthcare providers often obtained court orders to mandate transfusions, and thus serious injury or death was not likely. Second, in June 2000, the Jehovah's Witness Church announced a change in its policy and now allows transfusion of “fractions” of whole blood including hemoglobin. It advised members ”… when it comes to fractions of any of the primary components, each Christian, after careful and prayerful meditation, must conscientiously decide for himself.” ASSOCIATED JEHOVAH's WITNESSES FOR REFORM ON BLOOD, QUESTIONS FROM READERS: DO JEHOVAH's WITNESSES ACCEPT ANY MEDICAL PRODUCTS DERIVED FROM BLOOD?, at http://www.ajwrb.org/basics/change.shtml (June 15, 2000).

4 FIRST CHURCH OF CHRIST, SCIENTIST, CHRISTIAN SCIENCE: A CENTURY LATER (1982); see also Merrick, Janna C., Christian Science Healing of Minor Children: Spiritual Exemption Statutes, First Amendment Rights, and Fair Notice, 10 ISSUES L. & MED. 321 (1994)Google Scholar.

5 PEGGY DESAUTELS ET AL., PRAYING FOR A CURE: WHEN MEDICAL AND RELIGIOUS PRACTICES CONFLICT 58-63 (1999) (providing a thoughtful and articulate analysis of Christian Science principles of healing in a debate format with DesAutels writing as a lifelong member of the Church of Christ, Scientist and responding to arguments made by Margaret Battin and Larry May).

6 FIRST CHURCH OF CHRIST, SCIENTIST, FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN 18 (1989) (emphasis added).

7 Id. at 26.

8 See, e.g., Hayward, Rodney A. & Hofer, Timothy P., Estimating Hospital Deaths Due to Medical Errors, 286 JAMA 415 (2001)Google Scholar.

9 FIRST CHURCH OF CHRIST, SCIENTIST, supra note 6, at 4.

10 ROBERT PEEL, SPIRITUAL HEALING IN A SCIENTIFIC AGE 34 (1987).

11 Cass, Ramona, We Let Our Son Die: The Tragic Story of Rita and Doug Swan, 6 J. CHRISTIAN NURSING 6 (1987)Google Scholar.

12 Telephone Interview with Rita Swan, President, CHILD, Inc. (Dec. 8, 1993).

13 Skolnick, Andrew, Religious Exemptions to Child Neglect Laws Still Being Passed Despite Convictions of Parents, 264 JAMA 1226, 1229, 1233 (1990)Google Scholar. For a history of medical neglect statutes in Great Britain, see Monopoli, Paula A., Allocating the Costs of Parental Free Exercise: Striking a New Balance Between Sincere Religious Belief and a Child's Right to Medical Treatment, 18 PEPP. L. REV. 319, 327 (1991)Google Scholar.

14 Flowers, Ronald B., Withholding Medical Care for Religious Reasons, 23 J. RELIGION & HEALTH 268, 270 (1984)Google Scholar.

15 Mark 16:17-18.

16 James 5:13-15.

17 Flowers, supra note 14, at 271 (emphasis added).

18 Wilson, Gale E., Christian Science and Longevity, 1 J. FORENSIC SCI. 43, 54–55 (1956)Google Scholar. It is important to note that this study pre-dates the introduction of vaccines for polio, measles and pertussis, as well as most antibiotics. Therefore, if the study were replicated today, discrepancies between Christian Science and non-Christian Science mortality rates might be even wider. See Skolnick, Andrew, Christian Scientists Claim Healing Efficacy Equal if Not Superior to That of Medicine, 264 JAMA 1379 (1990)Google Scholar.

19 Simpson, William F., Comparative Longevity in a College Cohort of Christian Scientists, 262 JAMA 1657, 1657-58 (1989)Google Scholar. It should also be noted that Simpson's methodology might have skewed the results to show a lower rate of Christian Science mortality than was actually the case. First, he assumed that graduates of Principia College who could not be identified as being either deceased or alive should be counted as though they were alive, while graduates of the University of Kansas who could not be identified as being deceased or alive should be assumed to have the same mortality rate as their registered classmates. Second, he assumed that none of the graduates from the University of Kansas were Christian Scientists. If some were, in fact, practicing Christian Scientists, then the mortality rates for the non-Christian Science University of Kansas graduates would be even lower. Moreover, Christian Scientists tend to be well-educated and middle class, and do not use tobacco or consume alcohol. Based on this lifestyle, they should have longer life expectancies than a cohort like the graduates of the University of Kansas that invariably included individuals who used both tobacco and alcohol.

20 Simpson, William F., Comparative Mortality of Two College Groups, 1945-1983, 40 MORBIDITY & MORTALITY WKLY. REP. 579 (1991)Google Scholar.

21 Kaunitz, Andrew M. et al., Perinatal and Maternal Mortality in a Religious Group Avoiding Obstetric Care, 150 AM. J. OBSTETRICS & GYNECOLOGY 826, 829-30 (1984)Google Scholar.

22 Asser, Seth M. & Swan, Rita, Child Fatalities from Religion-Motivated Medical Neglect, 191 PEDIATRICS 625, 626-27 (1998)Google Scholar.

23 Swan, Rita, 90 Deaths of Kids Found in Followers of Christ, 2 CHILDREN's HEALTHCARE IS A LEGAL DUTY 1 (1998)Google Scholar.

24 Skolnick, supra note 13, at 1229, 1233.

25 Dolnick, Edward, Murder By Faith, 4 IN HEALTH 59 (1990)Google Scholar.

26 Swan, Rita & Swan, Doug, Long History of Apathy in St. Louis Area, 1 CHILDREN's HEALTHCARE IS A LEGAL DUTY 1, 4–6 (1993)Google Scholar; see also Merrick, supra note 4.

27 Swan, Rita, On Statutes Depriving a Class of Children of Rights to Medical Care: Can This Discrimination Be Litigated?, 2 QUINNIPIAC HEALTH L.J. 73, 78 (1998)Google Scholar.

28 Hinman, Alan R. et al., Childhood Immunization: Laws That Work, 30 J.L. MED. & ETHICS 122, 125 (Special Supp. 2002)Google Scholar.

29 Salmon, Daniel A. et al., Health Consequences of Religious and Philosophical Exemptions from Immunization Laws: Individual and Societal Risks of Measles, 282 JAMA 47, 47 (1999)Google Scholar.

30 Feikin, Daniel R. et al., Individual and Community Risks of Measles and Pertussis Associated with Personal Exemptions to Immunization, 284 JAMA 3145, 3149 (2000)Google Scholar.

31 Id. at 3150.

32 Salmon et al., supra note 29, at 51.

33 Feikin et al., supra note 30, at 3150.

34 For a discussion of the history and effectiveness of state laws mandating vaccinations for children entering school, see Hinman et al., supra note 28.

35 For a discussion of the complexity or ease of obtaining religious and philosophical exemptions, see Rota, Jennifer et al., Processes for Obtaining Nonmedical Exemptions to State Immunization Laws, 91 AM. J. PUB. HEALTH. 645 (2001)Google Scholar.

36 42 C.F.R. § 403.720 (2001).

37 CHILDREN's HEALTHCARE IS A LEGAL DUTY, RELIGIOUS EXEMPTIONS FROM HEALTH CARE FOR CHILDREN, available at http://www.childrenshealthcare.org/legal.htm (last modified Nov. 2002).

38 Id.

39 Id.; see also Swan, supra note 27, at 83.

40 Swan, supra note 27, at 80. The rule is as follows: A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian. However, such an exception shall not preclude a court from ordering that medical services be provided to the child when his health requires it. 45 C.F.R § 1340.2(d)(2)(ii) (2001); see also 48 Fed. Reg. 3,699-700 (Jan. 26, 1983).

41 Swan, supra note 27, at 79; see also Skolnick, supra note 13, at 1226, 1229. For a discussion of Commonwealth v. Sheridan, No. 26307 (Mass. Super. Ct. Nov. 9, 1967), see Clarke, Christine A., Religious Accommodation and Criminal Liability, 17 FLA. ST. U. L. REV. 559, 563 (1990)Google Scholar.

42 Swan, supra note 27, at 79.

43 Flowers, supra note 14, at 276.

44 Interestingly, John Erlichman and H.R. Haldeman, both Christian Scientists, were major figures in the Nixon Administration during the time that the religious exemption provisions of the CAPTA rules were being considered.

45 For discussions of lobbying activities in Florida and Massachusetts, see Hermanson v. State, 604 So.2d 775, 776-77 (Fla. 1992) and Commonwealth v. Twitchell, 617 N.E.2d 609, 615-16 (Mass. 1993).

46 Swan, supra 27, at 81.

47 Child Abuse Prevention and Treatment Act, 48 Fed. Reg. 3700 (Jan. 26, 1983) (codified at 45 C.F.R. pt. 1340 (2001)).

48 President Reagan ordered HHS to implement rules requiring medical care for handicapped newborns after the publicized death of a newborn with Down Syndrome whose parents refused surgery to correct a defective esophagus. Based on the discrimination clause in section 504 of the Rehabilitation Act of 1973, HHS notified hospitals in March 1982 that withholding treatment would result in a loss of federal aid. This was followed by several HHS rules requiring treatment and reporting. These rules were challenged in American Academy of Pediatrics v. Heckler, 561 F. Supp. 395 (D.C. Cir. 1983), Weber v. Stony Brook Hospital, 469 N.Y.S.2d 65 (1983), American Hospital Association v. Heckler, 585 F. Supp. 541 (S.D.N.Y. 1984) and Bowen v. American Hospital Association, 106 U.S. 2101 (1986). In the latter, the Supreme Court found that the requirements for notices, reporting and access to patient records were not based on evidence of discrimination. Congress then intervened in 1984 with amendments to CAPTA that defined failure to treat handicapped newborns as a form of child abuse and neglect. For further analysis, see Merrick, Janna C., Federal Intervention in the Treatment of Handicapped Newborns: Baby Doe Regulations and the 1984 Child Abuse Amendments, 8 POL’Y STUD. REV. 405 (1989)Google Scholar.

49 42 U.S.C. § 5106(i) (2001).

(a) In General.—Nothing in this [Act] shall be construed—(1) as establishing a Federal requirement that a parent or legal guardian provide a child any medical service or treatment against the religious beliefs of the parent or legal guardian; and (2) to require that a State find, or to prohibit a State from finding, abuse or neglect in cases in which a parent or legal guardian relies solely or partially upon spiritual means rather than medical treatment, in accordance with the religious beliefs of the parent or legal guardian. (b) State Requirement.—Notwithstanding subsection (a), a State shall, at a minimum, have in place authority under State law to permit the child protective services system of the State to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, to provide medical care or treatment for a child when such care or treatment is necessary to prevent or remedy serious harm to the child, or to prevent the withholding of medically indicated treatment from children with life threatening conditions. Except with respect to the withholding of medically indicated treatments from disabled infants with life threatening conditions, case by case determinations concerning the exercise of the authority of this subsection shall be within the sole discretion of the State.

Id. One could assume from the plain language of the statute that a Christian Science or Faith Tabernacle member who is appointed guardian for a Methodist child could refuse medical care for that child.

50 AM. MED. ASS’N (AMA), HHS TO REQUIRE THE STATES TO REPEAL THE RELIGIOUS EXEMPTION IN THE CHILD ABUSE AND NEGLECT PREVENTION STATUTE, H-60.961, at http://www.ama-assn.org/apps/pf_online/pf_online?f_n=browse&doc=policyfiles/HOD/H60.961.HTM (last visited Dec. 26, 2002); see also AM. ACAD. OF PEDIATRICS, Religious Objections to Medical Care (RE9707), 99 PEDIATRICS 279 (1997), available at www.aap.org/policy/re9707.html (last visited Dec. 21, 2002); Swan, Rita, United Methodist Church Opposes Religious Exemption in Federal Child Abuse Law, 1 CHILDREN's HEALTHCARE IS A LEGAL DUTY 1 (2000)Google Scholar.

51 Letter from Rita Swan, President, CHILD, Inc. (Jan. 9, 2003) (on file with author).

52 U.S. CONST. amend. I.

53 FIRST CHURCH OF CHRIST, SCIENTIST, supra note 6, at 67 (emphasis in original).

54 Id. at 69.

55 Lederman, Anne D., Understanding Faith: When Religious Parents Decline Conventional Medical Treatment for Their Children, 45 CASE W. RES. L. REV. 891, 907 (1995)Google Scholar.

56 Id. at 910.

57 Michaud, Marc R., Guilty But Not Responsible: The Need for a Criminal Duty to Mitigate Injuries, 34 SUFFOLK U. L. REV. 629 (2001)Google Scholar.

58 McCarthy v. Boozman, 212 F. Supp. 2d 945 (W.D. Ark. 2002).

59 Prince v. Massachusetts, 321 U.S. 158, 162-63 (1944).

60 Id. at 164.

61 Id. at 166, 170 (citations omitted).

62 Sherbert v. Verner, 374 U.S. 398 (1963).

63 Id. at 406-08.

64 Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

65 Id. at 209.

66 Id. at 215 (citations omitted).

67 Id. at 233-34.

68 Id. at 231.

69 Id. at 242 (Douglas, J., dissenting) (citations omitted).

70 Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 883-84 (1990).

71 Id. at 884-85.

72 Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000(b)(b) (2001).

73 Boerne v. Flores, 521 U.S. 507 (1997).

74 Id. at 535-36. Some states responded to Boerne by amending their state constitutions with “Little RFRA” provisions. Gildin, Gary S., A Blessing in Disguise: Protecting Minority Faiths Through State Religious Freedom Non-Restoration Acts, 23 HARV. J.L. & PUB. POL’Y 411, 433 (2000)Google Scholar.

75 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

76 Id.

77 ARIZ. REV. STAT. ANN. § 8-201.01, 8-531.01 (West 1999); CONN. GEN. STAT. ANN. § 17a- 104, 46a-11b(f), 46b-120(9) (West 1998); WASH. REV. CODE § 26.44.020(3) (2003); WASH. REV. CODE § 9A.42.005 (2000). The language of section 9A.42.005 of the Washington Code is instructive: “It is the intent of the legislature that a person who, in good faith, is furnished Christian Science treatment by a duly accredited Christian Science practitioner in lieu of medical care is not considered deprived of medically necessary health care or abandoned.”

78 See Brief of Amici Curiae Minnesota Civil Liberties Union, State v. McKown, 475 N.W.2d 63 (Minn. 1991); see also Michaud, supra note 57, at 638.

79 Children's Healthcare is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466 (D. Minn. 1996).

80 Balanced Budget Act, 1997 Pub. L. No. 105-33, § 4454, 111 Stat. 251, 426-32.

81 Children's Healthcare is a Legal Duty, Inc. v. DeParle, 212 F.3d 1084 (8th Cir. 2000).

82 U.S. CONST. amend. XIV, § 2.

83 McKown, 475 N.W.2d at 68-69.

84 Hermanson v. State, 604 So.2d 775, 782-83 (Fla. 1992).

85 Hall v. State, 493 N.E.2d 433, 435 (Ind. 1986).

86 Walker v. Superior Court, 763 P.2d 852, 872 (Cal. 1988).

87 Commonwealth v. Twitchell, 617 N.E.2d 609, 614-15 (Mass. 1993).

88 Rosato, Jennifer L., Putting Square Pegs in a Round Hole: Procedural Due Process and the Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents, 29 U.S.F. L. REV. 43, 65–66 (1994)Google Scholar.

89 Id. at 66.

90 Id. at 87-89.

91 Id. at 50.

92 Dwyer, James G., The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C. L. REV. 1321 (1996)Google Scholar.

93 Id. at 1326-27.

94 Hall v. State, 493 N.E.2d 433, 435-36 (Ind. 1986).

95 Walker v. Superior Court, 763 P.2d 852, 855-56 (Cal. 1988).

96 Id. at 856.

97 Id. (citing CAL. PENAL CODE § 270 (West 1999)).

98 Id. at 860.

99 Id. at 871.

100 Walker v. Keldgord, No. CIV S-93-0616 LKK JFM P (E.D. Cal. 1996).

101 COLO. REV. STAT. § 18-6-401 (2002).

102 Id. at § 19-1-114.

103 People v. Lybarger, 700 P.2d 910, 912 (Colo. 1985).

104 Id.

105 Lybarger v. People, 807 P.2d 570, 578 (Colo. 1991).

106 MINN. STAT. ANN. § 609.378 (West 1987).

107 Id.

108 Minnesota v. McKown, 461 N.W.2d 720, 723-24 (Minn. Ct. App. 1990).

109 State v. McKown, 475 N.W.2d 63, 67-68 (Minn. 1991).

110 In two civil actions—one an unsuccessful suit to gain custody of his daughter and the second a wrongful death action against the McKowns, officials of the Christian Science Church and the Church itself—Lundman alleged that he telephoned his former wife several hours before Ian's death to inquire about Ian's health. According to Lundman, Mrs. McKown stated that Ian had been ill off and on for a couple of weeks, but that the illness was not serious. At the time of the conversation, Ian was in a diabetic coma. Several hours later, Mrs. McKown called her former husband to advise him that their son was dead. Plaintiff's New Trial Argument, Lundman v. McKown (Minn. Super. Ct. Oct. 25, 1993) (No. 91-8197). Lundman also implicitly questioned Mrs. McKown's motives, arguing that Ian had previously seen the school nurse and that his school emergency card indicated he was to be taken to any hospital by ambulance if he became seriously ill. Lundman implied that at the time of Ian's fatal illness, Mrs. McKown put her own beliefs to the test because she had an application pending with the Church to become an accredited journal-listed practitioner that required her to affirm her belief in “radical reliance” on Christian Science healing. Lundman (No. 91-8197); see also Affidavit of Douglass Grant Lundman, In Re the Marriage of Douglass Grant Lundman and Kathleen Stuart Lundman (Minn. Fam. Ct.) (No. 114776). Mrs. McKown disputes these claims. Defendant's Memorandum in Support of Her Motions for Judgment Notwithstanding the Verdict or, in the Alternative, a New Trial, Lundman (No. 91-8197). Lundman was unsuccessful in his bid for custody, but did win a jury award of $5.2 million in compensatory damages against all defendants and $9 million in punitive damages against the Church alone. On appeal, the damages against the Church were reversed, and the total award was reduced to $1.5 million. See Lundman v. McKown, 530 N.W.2d 807 (Minn. Ct. App. 1995); Lundman v. McKown et al., Nos. C6-97-237, C8-97-238, C9-97- 314 (Minn. Ct. App. Oct. 28, 1997).

111 FLA. STAT. ANN. § 415.503(9)(f) (West 1998).

112 Hermanson v. State, 570 So.2d 322, 329 (Fla. App. 1990).

113 Hermanson v. State, 604 So.2d 775, 782 (Fla. 1992).

114 MASS. GEN. LAWS ch. 273, § 1 (1993).

115 Commonwealth v. Twitchell, 617 N.E.2d 609, 618 (Mass. 1993).

116 Id. at 620.

117 Commonwealth v. Nixon, 761 A.2d 1151, 1152 (Pa. 2000).

118 PA. STAT. ANN. tit. 23, § 6303(b)(3) (West 2001).

119 See FLA. STAT. ANN. § 415.503 (West 1998); MINN. STAT. § 609.378 (1987).

120 Nixon, 761 A.2d at 1155-57.

121 See generally ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (1961).

122 See Merrick, supra note 4; LAINIE FRIEDMAN ROSS, CHILDREN, FAMILIES AND HEALTH CARE DECISION MAKING 14 (1998); see also Rosato, supra note 88.

123 JAMES E. ANDERSON, PUBLIC POLICYMAKING: AN INTRODUCTION 231-37 (2000).