Religious Exemptions From Health Care For Children

Data on Injuries to Children Because of Religion-based Medical Neglect

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Two studies indicate that Christian Science adults have higher mortality rates than the general population. See William Simpson, “Comparative longevity in a college cohort of Christian Scientists,” Journal of the American Medical Association (JAMA) 262 (Sept. 22-29, 1989): 1657-8, and William Simpson, "Comparative mortality in two college groups, 1945-83," Mortality and Morbidity Weekly Report 40(August 23, 1991):579-82.

Pediatrician Seth Asser and CHILD president Rita Swan have published a study of 172 deaths of children when medical care was withheld on religious grounds. They found that 140 of the children would have had at least a 90% likelihood of survival with medical care. See Seth Asser and Rita Swan, "Child fatalities from religion-motivated medical neglect," Pediatrics 101(April 1998):625-9.

Deaths of Christian Science children between 1974 and 1994 from the following causes are in CHILD’s files: 5 of meningitis, 3 of pneumonia, 2 of appendicitis, 5 of diabetes, 2 of diphtheria, 1 of measles, 8 of  cancer, 1 of septicemia, 1 of a kidney infection, 1 of a bowel obstruction, and 1 of heart disease.

Between 1973 and 1990, 65 Faith Assembly children are known to have died of treatable illnesses without medical care. In 1983 the Centers for Disease Control and the Indiana Board of Health conducted a study of Faith Assembly members, who shun all medical care including obstetrics. Pregnant women in Faith Assembly were 86 times more likely to die than other expectant mothers in Indiana. The mortality rate for Faith Assembly infants up to 28 days old was 270% higher. See Andrew Kaunitz, Craig Spence, et al., “Perinatal and maternal mortality in a religious group avoiding obstetrical care,” American Journal of Obstetrics and Gynecology 150 (Dec. 1, 1984):826-31.

The Oregonian reported that 78 children died between 1955 and 1998 in the Followers of Christ Church in Oregon City, a church opposed to medical care.  Twelve children died in an Idaho affiliate of the Followers of Christ.  See Mark Larabee and Peter Sleeth, “Faith healing raises questions of the law’s duty-belief or life?,” The Oregonian (June 7, 1998):1.

Sects claiming a religious exemption from immunizations have had outbreaks of polio, measles, whooping cough, and diphtheria.  In 1991 there were 492 measles cases in Philadelphia among children associated with Faith Tabernacle and First Century Gospel Church, which refuse immunizations.  Six children died.

Christian Science schools in the St. Louis area have had four major measles outbreaks between 1985 and 1994.  The first included three deaths of young people.  The 1994 outbreak had 247 cases.  It spread to children in public schools and cost St. Louis County more than $100,000 to manage. It is the largest measles outbreak in the U.S. since 1992.

The Netherlands had an outbreak of 2000 measles cases, including three deaths of young people, that began at a Dutch Orthodox Reformed Church school in 1999-2000. The church has religious beliefs against vaccination.

Two recent studies indicate that religious and philosophical exemptions to immunizations increase cases of disease. Daniel Feikin et al. in “Individual and community risks of measles and pertussis associated with personal exemptions to immunization,” JAMA 284 (December 27, 2000):3145-50, studied all reported confirmed measles cases among Colorado children aged 3 to 18 years during 1987-1998 and all reported confirmed and probable pertussis cases among the same population for 1996-98. The authors found that exemptors were 22 times more likely to acquire measles and 6 times more likely to acquire pertussis than vaccinated children. Furthermore, the authors found that at least 11% of vaccinated children who contracted measles acquired the infection through contact with an exemptor. Daniel Salmon, et al., “Health consequences of religious and philosophical exemptions from immunization laws: individual and societal risk of measles,” JAMA 282 (July 7, 1999):47-53, found children with religious or philosophical exemptions from immunizations were 35 times more likely to contract measles than vaccinated children.

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Since 1990, Arizona, Colorado, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, North Carolina, Rhode Island, Oregon, and South Dakota have repealed some religious exemptions from a duty to provide medical care for a sick child. CHILD gave extensive support to repeal bills in several of those states and has blocked the Christian Science church from getting more religious exemptions enacted in some states.

Presentations by CHILD members to the American Academy of Pediatrics, American Medical Association, National Child Abuse Coalition, National Committee for the Prevention of Child Abuse (now Prevent Child Abuse America), U.S. Advisory Board on Child Abuse and Neglect, National District Attorneys Association, United Methodist Church, and the National Association of Medical Examiners contributed to those organizations' adoption of policy statements against religious exemptions.

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1. Children's Healthcare Is a Legal Duty, Inc. and Brown v. Deters, 92 F.3d 1412 (Sixth Circuit 1996), cert. denied 117 S.Ct. 1082 (1997)

CHILD and Brown v. Deters was filed in August, 1994, in the U.S. District Court for the Southern District of Ohio, Western Division. The suit challenged the constitutionality of Ohio's religious defense to felony child endangerment and manslaughter at ORC 2919.22a. Brown's children are being raised in Ohio by their mother, whose religion objects to medical treatment of illness. CHILD and Brown charged that the Ohio statute deprives a class of children of equal protection of the laws in violation of the fourteenth amendment to the Constitution. CHILD asked the court to rule the religious defense unconstitutional, that is, to grant declaratory relief from the statute.

CHILD v. Deters raised the question of whether a religious exemption from a parental duty of care is a legitimate act of legislative discretion. Beginning in 1903 American courts have consistently ruled that the first amendment does not confer a right to withhold medical care from children. (See People v. Pierson, 68 N.E. 243 (N.Y. 1903); Prince v. Massachusetts, 321 U.S. 158 (1944).) Nevertheless, state legislatures have enacted exemption laws allowing parents to withhold medical care from children on religious grounds.

The circuit courts of Coshocton and Mercer Counties, Ohio, ruled ORC 2919.22a unconstitutional, but the rulings were not appealed. (See State v. Miskimens, 490 N.E.2d 931 (Ohio 1984), and State v. Miller, Mercer County Circuit Court, 1987). Other state courts have ruled religious exemptions unconstitutional either on first or fourteenth amendment grounds (e.g. Brown v. Stone, 378 So.2d 218, 221 (Miss. 1979)), but federal courts have not yet ruled on the question.

The federal district court granted CHILD standing to have a trial on the merits of the statute, but the Sixth Circuit U.S. Court of Appeals ruled that the Ohio Attorney-General has eleventh amendment immunity until she enforces or threatens to enforce the statute to the detriment of the Brown children.

CHILD petitioned the U.S. Supreme Court for review. An amicus brief in support of the petition was filed by the National Task Force on Children's Constitutional Rights, National Committee for the Rights of the Child, National Association of Counsel for Children, American Academy of Pediatrics, Council on Child Abuse of Southern Ohio, People Against Child Abuse, Hear My Voice, Dr. David Chadwick, and Dr. Donald Duquette. The Supreme Court denied review in February, 1997.

2. Children's Healthcare Is a Legal Duty, Bostrom, and Petersen v. Vladeck and Shalala, 938 F. Supp. 1466 (D. Minn. 1996)

CHILD v. Vladeck was filed January 19, 1996, in the U. S. District Court of Minnesota as a taxpayers' suit against the federal government for using Medicare and Medicaid funds to pay for Christian Science nursing. The Christian Science church later entered the case as a defendant-intervenor.

On August 7, 1996, the Court struck down the laws and regulations mandating such payments, declaring them unconstitutional, invalid, and unenforceable.

When Medicare and Medicaid programs were set up in 1965, Congress authorized reimbursements to care facilities accredited by the Christian Science church. The facilities, called "sanatoria" by the government, are staffed by "nurses" who have no state licensure, medical training, or even first aid training. They do not work under supervision of any state-licensed personnel. All sanatoria nurses and administrators must be members of the Christian Science church. All patients must retain Christian Science healers for spiritual "treatments."

CHILD argued that it was unconstitutional for the government to delegate to a church the power to determine which institutions should receive public money and for the government to pay for "pervasively sectarian" activities.

CHILD's main concern, however, is that the Medicare/Medicaid reimbursements for Christian Science care facilities encourage endangerment of children. Christian Science nurses cannot take a pulse or use a fever thermometer. They have no training in recognizing contagious diseases. They will not do even simple, non-medical procedures to relieve discomfort, such as applying heat or giving backrubs.

They have been retained to attend sick children and have sat taking notes as the children suffered and died, but they have not called for medical care nor recommended that the parents obtain it. The notes of these nurses indicate that they observed children having "heavy convulsions," vomiting repeatedly, and urinating uncontrollably. They have seen the children moaning in pain and too weak to get out of bed. They have seen their eyes roll upward and fix in a glassy stare. One Christian Science nurse force-fed a toddler as he was dying of a bowel obstruction.

On January 23, 1997, Attorney-General Janet Reno advised Congress that her office could no longer defend the statutes and regulations mandating public money for Christian Science nursing. In June, however, Senator Orrin Hatch, R-Utah, introduced an amendment mandating payment for "religious non-medical health care" that was added to the budget bill with no discussion and signed into law in August. The amendment repealed the statutes and regulations declared unconstitutional in CHILD's suit, thus mooting the court's ruling, and established payments for Christian Science nursing under new statutory language.

3. Children's Healthcare Is a Legal Duty, Bostrom, and Petersen v. DeParle and Shalala, 212 F.3d 1084 (Eighth Circuit 2000), cert. denied 121 S.Ct. 1483 (2001).

In August, 1997, CHILD Inc. and two of its Minnesota members filed suit asking the U.S. District Court of Minnesota to rule unconstitutional the new statute mandating payment for "religious non-medical health care." The statute classifies religious non-medical health care institutions as hospitals and skilled nursing facilities for the purposes of receiving Medicare and Medicaid funds, but exempts them from the standards that medical hospitals and skilled nursing facilities have to meet.

It allows the religious non-medical health care institutions to have sect-based admission criteria, to require all the patients to pay for prayers by church-accredited spiritual healers, and to receive Medicare funds for custodial care. It also requires these institutions to have "religious beliefs" against medical examination, diagnosis, and treatment, and prohibits the government from requiring medical diagnoses of their patients.

On July 24, 1998, the district court granted summary judgement for the defendants. Judge Ann Montgomery wrote that her ruling was "premised on the notion that nonmedical nursing services, including such things as feeding, cleaning, clothing, and other aspects of physical maintenance can be 'unbundled' from medical nursing services. She held that "religious nonmedical health care" is "a subset" of normal medical care.

CHILD appealed the ruling to the Eighth Circuit, U.S. Court of Appeals. The American Academy of Pediatrics, American Medical Association, American Nurses Association, Iowa Medical Society, Minnesota Civil Liberties Union, Americans for Religious Liberty, American Humanist Association, and the Council for Secular Humanism filed amicus briefs in support of CHILD.

The Christian Legal Society, National Council of Churches of Christ, National Association of Evangelicals, General Council of Finance and Administration of the United Methodist Church, Presbyterian Church (U.S.A.), Christian Medical and Dental Society, and Senator Edward Kennedy, D-Massachusetts, filed amicus briefs in support of the federal government and the Christian Science church.

On May 1, 2000, in a 2-1 ruling, the appeals court upheld summary judgement for the government. Both the majority's opinion and a strong dissent are at www.ca8.uscourts.gov/opndir/00/05/983521P.pdf.

CHILD petitioned the U.S. Supreme Court for review. Its position was supported in amicus briefs filed by the American Academy of Pediatrics, American Medical Association, American Nurses Association, Iowa Medical Society, B'nai B'rith Anti-Defamation League, Americans for Religious Liberty, American Humanist Association, and the Council for Secular Humanism. The Supreme Court denied review April 2, 2001.

CHILD was represented by Robert Bruno of Burnsville, Minnesota, in all three of its suits. Marci Hamilton was the counsel of record for the cert. petition in CHILD v. deParle.

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1. People v. Shalala, case #93-15700 and -15936, U. S. Court of Appeals, Ninth Circuit

In 1993, CHILD filed an amicus brief urging the court to review the constitutionality of California's statutory religious exemption to child neglect and nonsupport charges and to rule them unconstitutional on first and fourteenth amendment grounds. The California Medical Association also filed an amicus brief calling for a ruling on the discrimination posed by the exemption. Later the case became moot when the federal government withdrew its appeal.

CHILD's brief was prepared by Michael Botts of Nevada, Iowa, and Peter Healy of Kansas City, Missouri.

2. City of Boerne v. Flores, 117 S.Ct. 2157

Joined by the American Professional Society on the Abuse of Children, CHILD filed an amicus brief in the U.S. Supreme Court arguing that the Religious Freedom Restoration Act limits the state's ability to protect children and is unconstitutional.

The Supreme Court ruled the act unconstitutional in June, 1997, on grounds that Congress had exceeded its authority to override state and local law.

The brief was written by Robert Bruno of Burnsville, Minnesota.

3. Commonwealth v. Nixon, 761 A.2d 1151 (Pa. 2000), cert. denied S.Ct (2001)

In 2000, CHILD filed an amicus brief arguing that parents' convictions for manslaughter and felony child endangerment should be upheld. The parents let their 16-year-old daughter die of untreated diabetes because of their religious beliefs against medical care. They argued at trial and on appeal that their daughter made a mature person's choice to practice her religion and did not want medical care.

The Pennsylvania Supreme Court upheld the parents' conviction, rejecting the arguments that Pennsylvania had a "mature minor doctrine" that excused parents from providing care to a minor and that the girl's constitutional privacy rights gave her a right to refuse lifesaving medical care.

The brief was written by Professor James Dwyer of Marshall Wythe School of Law, College of William and Mary, Williamsburg, Virginia. The National Association of Counsel for Children, National Exchange Club Foundation, and American Humane Association, Children's Division, cosigned the brief.

4. Douglas County v. Anaya, 694 N.W.2d 601 (Neb. 2005), cert. denied S.Ct (2005)

In 2005 CHILD filed an amicus brief in support of Nebraska's right to require metabolic screening of all newborns regardless of the parents' religious objections. The defendants had religious beliefs against any withdrawal of blood and argued that the state could not interfere with their religious practice unless their child was sick.

The Nebraska Supreme Court unanimously upheld the metabolic screening law in the nation's first reported ruling that the state had the right to require a health screening over parents' religious objections. The U.S. Supreme Court declined to review the ruling.

The brief was written by Professor James Dwyer of Marshall Wythe School of Law, College of William and Mary, Williamsburg, Virginia. It was cosigned by the National Association of Counsel for Children and the Nebraska Chapter, American Academy of Pediatrics.

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