Spiritual treatment exemptions to child medical neglect laws: What we outsiders should think

Notre Dame Law Review

Volumn 76, Issue 1, 2000, Pages 147-176

  Dwyer, James G ^a  

^a The College of William and Mary   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CHILD; CHILD ADVOCACY; CHILD WELFARE; ETHICAL THEORY; GOVERNMENT; HUMAN; LEGAL APPROACH; LEGAL ASPECT; PARENT; PARENTAL CONSENT; PROFESSIONAL PATIENT RELATIONSHIP; RELIGION; RELIGIOUS APPROACH; SPIRITUAL HEALING; TREATMENT REFUSAL;

LEGAL APPROACH; PROFESSIONAL PATIENT RELATIONSHIP; RELIGIOUS APPROACH;

CHILD; CHILD ADVOCACY; CHILD WELFARE; ETHICAL THEORY; FAITH HEALING; GOVERNMENT; HUMANS; PARENTAL CONSENT; PARENTS; RELIGION; TREATMENT REFUSAL;

EID: 0034348158     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (88)

1. See John Dwight Ingram, State Interference with Religiously Motivated Decisions on Medical Treatment, 93 DICK. L. REV. 41, 41 (1988) (arguing that "[t]he constitutional protections of religious freedom prohibit the state from interfering with religiously motivated decisions regarding the rendering of medical care").
2. See Henry J. Abraham, Abraham, Isaac and the State: Faith-Healing and Legal Intervention, 27 U. RICH. L. REV. 951, 977 (1993) (arguing for repeal of spiritual treatment exemptions because this "would send the unambiguous message that, in the context of a medical emergency, prayer and faith-healing efforts, however laudable, caring and arguably efficacious they may be, are acceptable to the state only if a child's life or safety is also protected by the provision of any needed medical treatment");
3. Elizabeth A. Lingle, Treating Children by Faith: Colliding Constitutional Issues, 17 J. LEGAL MED. 301, 330 (1996) (opposing exemptions);
4. Ann MacLean Massie, The Religion Clauses and Parental Health Care Decisionmaking for Children: Suggestions for a New Approach, 21 HASTINGS CONST. L.Q. 725, 739 (1994) (arguing that spiritual treatment exemptions violate the Establishment Clause);
5. Paula A. Monopoli, 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, 322 (1991) (arguing that lifting spiritual treatment exemptions would not abridge parents' rights to free exercise of religion);
6. Rita Swan, Ph.D., On Statutes Depriving a Class of Children of Rights to Medical Care: Can This Discrimination be Litigated?, 2 QUINNIPIAC HEALTH L.J. 73, 92-94 (1998) (positing that spiritual treatment exemptions are unconstitutional);
7. Jennifer Trahan, Constitutional Law: Parental Denial of a Child's Medical Treatment for Religious Reasons, 1989 ANN. SURV. AM. L. 307, 340 (1990) (proposing medical neglect statute that expressly precludes exemption on the grounds of religious belief);
8. see also American Academy of Pediatrics, Religious Objections to Medical Care, 99 PEDIATRICS 279, 279 (1997) (stating AAP opposition to spiritual treatment exemptions);
9. Andrew Skolnick, Religious Exemptions to Child Neglect Laws Still Being Passed Despite Convictions of Parents, 264 JAMA 1226, 1233 (1990) (stating opposition of American Medical Association to spiritual treatment exemptions).
10. See Janna C. Merrick, Ph.D., Christian Science Healing of Minor Children: Spiritual Exemption Statutes, First Amendment Rights, and Fair Notice, 10 ISSUES IN L. & MED. 321, 341-42 (1994) (arguing for abrogation of spiritual treatment exemptions but cautioning that courts should order treatment over the objection of parents "only in cases of very serious illness where reliable and proven therapies can effectively manage the disease");
11. Barry Nobel, Religious Healing in the Courts: The Liberties and Liabilities of Patients, Parents and Healers, 16 U. PUGET SOUND L. REV. 599, 603 (1993) (taking the position that "[c]ourts should refrain from interfering with the parent-child relationship absent life-threatening circumstances accompanied by the probability - rather than the possibility - of medical cure");
12. LaDonna DiCamillo, Comment, Caught Between the Clauses and the Branches: When Parents Deny Their Child Nonemergency Medical Treatment for Religious Reasons, 19 J. JUV. L. 123, 157 (1998) ("The state's interest is sufficiently compelling only when the risk associated with foregoing medical treatment is at a point when the child's life is immediately endangered, and the proposed treatement offers probable cure with minimal risk.");
13. Jennifer L. Hartzell, Comment, Mother May I . . . Live? Parental Refusal of Life-Sustaining Medical Treatment for Children Based on Religious Objections, 66 TENN. L. REV. 499, 528 (1999) (proposing that spiritual treatment exemptions be permitted except in cases where "the child's life may be threatened" or "the child's condition may result in a permanent disability").
14. I am not suggesting here that people who pray for healing believe they are simply engaging in positive thinking. Rather, I assume that the State, from its secular perspective, may view prayer as efficacious in healing because of the positive psychological states it entails, but may not assume prayer is efficacious because God responds to it. The latter assumption would involve the State deciding religious questions.
15. See, e.g., In re President of Georgetown Coll., Inc., 331 F.2d 1000, 1007 (D.C. Cir. 1964) (relating view of adult Jehovah's Witness patient that if a court ordered a blood transfusion, "it would not then be her responsibility"); United States v. George, 239 F. Supp. 752, 753 (D. Conn. 1965) (relating statement by an adult patient that his "conscience was clear" because the responsibility for receiving medical care would be "upon the Court's conscience"); In re E.G., 515 N.E.2d 286, 289 (Ill. App. Ct. 1987), aff'd in part and rev'd in part, 549 N.E.2d 322 (Ill. 1989) (noting an assertion by the State that the patient's church would view the transfusion as "the court's transgression, not her own, and would support rather than punish her").
16. For description of the beliefs of particular religious groups that oppose medical care and the effects these beliefs have had on children, see generally Seth M. Asser, M.D. & Rita Swan, Ph.D., Child Fatalities from Religion-Motivated Medical Neglect, 101 PEDIATRICS 625 (1998);
17. Rita Swan, Children, Medicine, Religion, and the Law, 44 ADVANCES IN PEDIATRICS 491 (1997).
18. See, e.g., Ingram, supra note 1, at 62; DiCamillo, supra note 3, at 143-44; Anne D. Lederman, Note, Understanding Faith: When Religious Parents Decline Conventional Medical Treatment for Their Children, 45 CASE W. RES. L. REV. 891, 918 (1995).
19. See, e.g., Lederman, supra note 7, at 892-93 (1995); Deborah Sussman Steckler, Note, A Trend Toward Declining Rigor in Applying Free Exercise Principles: The Example of State Courts' Consideration of Christian Science Treatment for Children, 36 N.Y.L. SCH. L. REV. 487, 488, 502 (1991) (describing beliefs of Christian Scientists).
20. See, e.g., Ingram, supra note 1, at 65 ("The first amendment prohibits the state from prescribing that physical life on earth is more important than life hereafter. Every person has the right to make that critical decision. Similarly, parents have the right to make that decision for their children . . . ."); see also infra Parts II.B.2, II.C.
21. See County of Allegheny v. ACLU, 492 U.S. 573, 593-94 (1989) ("The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief."); Kathleen M. Sullivan, Parades, Public Squares and Voucher Payments: Problems of Government Neutrality, 28 CONN. L. REV. 243, 258 (1996) ("Government itself may espouse any viewpoint a democratic majority wishes except a religious viewpoint."). In McGowan v. Maryland, Justice Frankfurter stated: The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of legislation, nor, now, may any legislature in this country. McGowan v. Maryland, 366 U.S. 420, 465-66 (1961) (Frankfurter, J., concurring).
22. I speak here of requiring parents to secure medical care, but if there were some alternative way to ensure a child receives medical care that is just as effective and that avoids some of the religious conflict for the parent, then I see no reason not to take that approach - for example, if there might be some way to ensure the State is notified whenever a child is sick or injured, so that it could assume a temporary and limited guardianship for purposes of authorizing treatment. What is important is that the children receive the care, not how exactly that is made to happen. Several commentators have proposed a reporting requirement as an alternative to civil and criminal neglect proceedings. See, e.g., Abraham, supra note 2, at 977; Stephen L. Carter, The Free Exercise Thereof, 38 WM. & MARY L. REV. 1627, 1653-54 (1997);
23. Jennifer L. Rosato, 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, 117 (1994);
24. Daniel J. Kearney, Note, Parental Failure to Provide Child with Medical Assistance Based on Religious Beliefs Causing Child's Death - Involuntary Manslaughter in Pennsylvania, 90 DICK. L. REV. 861, 885 (1986);
25. Eric W. Treene, Note, Prayer-Treatment Exemptions to Child Abuse and Neglect Statutes, Manslaughter Prosecutions, and Due Process of Law, 30 HARV. J. ON LEGIS. 135, 171-76 (1993).
26. However, imposing a reporting duty on parents and "faith healers" has proven ineffective as a means of accomplishing this purpose, because members of these religious groups flout reporting requirements just as readily as they flout the basic duty to secure medical care for a child themselves. See, e.g., Walker v. Superior Court, 763 P.2d 852, 871 (Cal. 1988) ("Under ordinary circumstances, . . . the case of a true believer in faith healing will not even come to the attention of the authorities, unless and until someone dies."); Christine A. Clark, Religious Accommodation and Criminal Liability, 17 FLA. ST. U. L. REV. 559, 566, 576, 580 (1990) (describing a case in Florida in which parents and Christian Scientist practitioners allowed a child to die of a treatable medical condition without notifying state officials of her illness despite the existence of a state statute requiring Christian Science practitioners to notify a state agency when a sick child is being treated only with prayer); Kearney, supra, at 885-86 (same); Lederman, supra note 7, at 923 (explaining why threat of legal punishment has little deterrent effect on Christian Science parents).
27. For some religious groups, such as the Christian Science church, it is just as wrong to acknowledge the existence of a disease as it is to get medical treatment for it. "It is no more Christianly scientific to see disease than it is to experience it. " MARY BAKER EDDY, SCIENCE AND HEALTH WITH KEY TO THE SCRIPTURES 421 (First Church of Christ, Scientist 1994) (1875). If it becomes necessary to startle mortal mind to break its dream of suffering, vehemently tell your patient that he must awake. Turn his gaze from the false evidence of the senses to the harmonious facts of Soul and immortal being. Tell him that he suffers only as the insane suffer, from false beliefs. . . . . . . . There is no disease. Id. at 420-21. Moreover, even if parents do report that their child is sick, their religious views may lead them to grossly mischaracterize the child's condition, with the result that state child protective workers are led to believe the illness is much less serious than it really is. Currently, statutory child neglect reporting requirements in many states also contain a spiritual treatment exemption making it more likely that the State will not become aware of a child's illness, if at all, until after the child is dead. See Rosato, supra, at 52 n.44; Treene, supra, at 143. Eliminating these exemptions would be a step in the right direction, but would not be sufficient to protect the children. It is not clear how the State can effectively compel parents to secure medical care for their children; if they are determined to follow their religious beliefs regardless of what the law is. Two possible means of doing so are (1) to eliminate all existing exemptions in civil neglect laws, so that no parent is led to believe the State tolerates this form of neglect to any degree, and (2) to impose stiff sentences under criminal neglect and involuntary manslaughter laws for parents who flout their legal responsibilities, something courts have been - as insider parents well know - reluctant to do. See Kearney, supra, at 866 ("[J]udicial recognition of the harshness of imposing criminal liability has resulted in the imposition of moderate sentences . . . .");
28. Edward Egan Smith, Note, The Criminalization of Belief: When Free Exercise Isn't, 42 HASTINGS L.J. 1491, 1511 (1991) (noting that a "number of convictions of faith healing parents . . . have been overturned on technical grounds unrelated to the underlying charge" and suggesting judicial sympathy for these parents); Treene, supra, at 171-76 (discussing the conflicting messages parents receive from civil neglect laws that contain a spiritual treatment exemption and criminal neglect and involuntary manslaughter laws that do not); id. at 197-98 (noting the lenient sentence in a criminal conviction of parents who caused a child to die by neglecting to secure medical care).
29. In theory, the legal obligation might best be stated in terms of what response from parents is required when certain symptoms are present, rather than (or perhaps in addition to) stating it in terms of what parents must do when a child has a particular disease or when a substantial risk is present, since the latter would require parents to make medical judgments they likely are not prepared to make. In practice, though, specifying which symptoms should trigger action might be quite difficult. The practical difficulty of precisely identifying the symptoms that signal a serious or potentially serious problem provides an additional reason for excusing failure to secure medical care only in the most minor cases. See Clark, supra note 11, at 585-86, 589 (describing cases in which illnesses that appeared on the surface to be less serious turned out to be life-threatening); cf. id. at 589 ("Families who rely on spiritual healing need a more certain standard to guide their daily decisions."). Clark also notes that the religious beliefs of Christian Scientist parents would make them less able to identify signs of serious illness, because those beliefs include the view that disease is an illusion. See id. at 586.
30. See, e.g., Ingram, supra note 1, at 65; Smith, supra note 11, at 1510; Steckler, supra note 8, at 514-15.
31. I pose this primarily as a moral, rather than doctrinal, legal question, and for the purpose of critiquing existing doctrine, which gives little recognition to the rights of children in religious child-rearing contexts. See James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 CAL. L. REV. 1371, 1379-405 (1994). The argument here that analogizes children's situations to that of incompetent adults could, however, be couched in terms of legal doctrine interpreting the Equal Protection Clause of the Fourteenth Amendment. One could argue that children are similarly situated to never-competent adults and so should receive the same legal protections for their physical well-being. Further below, I advance a different sort of equal protection argument, one that argues against discrimination among groups of children based on the religious beliefs of their parents. See infra notes 18-19 and accompanying text.
32. See John E. Donaldson, Reform of Adult Guardianship Law, 32 U. RICH. L. REV. 1273, 1291-93 (1998) (describing the law of guardianship in Virginia);
33. Hal Fliegelman & Debora C. Fliegelman, Giving Guardians the Power To Do Medicaid Planning, 32 WAKE FOREST L. REV. 341, 349-51 (1997).
34. See, e.g., In re C.D.M., 627 P.2d 607, 612-13 (Alaska 1981); In re Debra B., 495 A.2d 781, 782-83 (Me. 1985); In re Wirsing, 573 N.W.2d 51, 55 (Mich. 1998); In re Grady, 426 A.2d 467, 474-75 (N.J. 1981); Estate of C.W., 640 A.2d 427, 428 (Pa. Super. Ct. 1994); see also Elizabeth S. Scott, Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 DUKE L.J. 806, 817-23 (explaining the current sterilization laws in different states, and finding that a court generally may authorize sterilization for an incompetent woman only if it finds clear and convincing evidence that sterilization would be in the woman's best interests).
35. See, e.g., In re Debra B., 495 A.2d at 782 (noting that the purpose of state legislation concerning sterilization of incompetent adults is "to ensure that no person who is incapable of informed consent may be sterilized unless the operation is necessary to that person's best interests"); In re Terwilliger, 450 A.2d 1376, 1382 (Pa. Super. Ct. 1982) ("[I]n making the decision of whether to authorize sterilization, a court should consider only the best interest of the incompetent person, not the interests or convenience of the individual's parents, the guardian or of society . . . ."); see also Scott, supra note 16, at 821-22 (stating that current law excludes consideration of parents' interests from the sterilization decision).
36. See, e.g., In re Quinlan, 355 A.2d 647, 661-62 (N.J. 1976) (rejecting a claim by the parents of an adult in a persistent vegetative state that they had a right based on their religious beliefs to decide that life support would be terminated and stating, "[w]e do not recognize an independent parental right of religious freedom to support the relief requested").
37. For an extended argument that spiritual treatment exemptions in child neglect laws violate the equal protection rights of children who are consequently denied necessary medical care, see generally James G. Dwyer, 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). See also Massie, supra note 2, at 731-32 (noting that, although children have never been defined as a suspect class under the equal protection doctrine, courts have traditionally "regarded governmental actions specifically affecting the welfare of children with special care"); Monopoli, supra note 2, at 348-49 (1991) (regardless of how children whose parents practice spiritual healing are classified under the equal proection doctrine, the court must at least find the exception rationally related to the statute's purpose for enactement); Swan, supra note 2, at 92-94 (referring to four state court cases that hold a religious exemption statute pertaining to children violates the Fourteenth Amendment).
38. Ohio v. Miskimens, 490 N.E.2d 931, 935-36 (Ohio Ct. Com. Pl. 1984); see also Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979) (invalidating a religious exemption to Mississippi's child immunization law as a violation of children's right to equal protection of child welfare laws).
39. For an explanation of why parents' rights and interests cannot provide a legitimate basis for such discrimination, see Dwyer, supra note 19, at 1423-33.
40. See RONALD DWORKIN, A MATTER OF PRINCIPLE 191 (1985) ("[T]here is broad agreement within modern politics that the government must treat all its citizens with equal concern and respect . . . .");
41. Ronald Dworkin, What is Equality? Part 3: The Place of Liberty, 73 IOWA L. REV. 1, 7 (1987) ("[W]e are now united in accepting the abstract egalitarian principle: government must act to make the lives of those it governs better lives, and it must show equal concern for the life of each.");
42. Gregory Vlastos, Justice and Equality, in THEORIES OF RIGHTS 41, 41-42 (Jeremy Waldron ed., 1984) (noting that this notion of formal equality of consideration has been embedded in the concept of justice since its origins in Ancient Greece); cf. FCC v. Beach Communications, Inc., 508 U.S. 307, 323 n.3 (1993) (Stevens, J., concurring) ("[W]hen Congress imposes a burden on one group, but leaves unaffected another that is similarly, though not identically, situated, . . . we should inquire whether the classification is rationally related to 'a legitimate purpose that we may reasonably presume to have motivated an impartial legislature.'" (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring))).
43. See, e.g., Ingram, supra note 1, at 60, 65; Nobel, supra note 3, at 636; DiCamillo, supra note 3, at 143-44; Lederman, supra note 7, at 907 (arguing that parents' free exercise right is never outweighed by the interests of their children); Shelli Dawn Robinson, Comment, Commonwealth v. Twitchell: Who Owns the Child?, 7 J. CONTEMP. HEALTH L. & POL'Y 413, 431 (1991); Smith, supra note 11, at 1510; Steckler, supra note 8, at 519.
44. See, e.g., Clark, supra note 11, at 587-89; Nobel, supra note 3, at 636 ("To promote religious liberty and family integrity, judges should rarely second-guess consensual family healthcare decisions based on religious considerations."); id. at 660 (describing judicial rejection of parental claims to a free exercise right to provide "religious treatment alone" as an "aberration of free exercise jurisprudence"); Kearney, supra note 11, at 889; Lederman, supra note 7, at 894-95, 898; Robinson, supra note 23, at 425-29; Steckler, supra note 8, at 519; cf. Lainie Friedman Ross & Timothy J. Aspinwall, Religious Exemptions to the Immunization Statutes: Balancing Public Health and Religious Freedom, 25 J.L. MED. & ETHICS 202, 205 (1997) (arguing in favor of religious exemptions to child immunization laws, on the basis of parents' right to religious freedom). But see Robinson, supra note 23, at 431 (asserting that parents should be excused for medical neglect regardless of the reason for their failure to secure medical care - or in other words, that there should be no such thing as medical neglect of children).
45. See Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990) (holding that facially neutral and generally applicable laws that incidentally burden religious practice do not violate the Free Exercise Clause, but distinguishing cases - such as religious parenting - that involve an additional constitutional right, such as a substantive due process right, by suggesting that the second right somehow enhances the free exercise claim).
46. See JOHN LOCKE, A LETTER CONCERNING TOLERATION 38 (James H. Tully ed., Hackett Pub. Co. 1983) (1689);
47. JOHN STUART MILL, ON LIBERTY 53-73 (Elizabeth Rapaport ed., Hackett Pub. Co. 1978) (1859);
48. JOHN RAWLS, A THEORY OF JUSTICE 543-44 (1971); see also Cruzan v. Mo. Dep't of Health, 497 U.S. 261, 287 (1990) (O'Connor, J., concurring) ("[O]ur notions of liberty are inextricably entwined with our idea of physical freedom and self-determination.").
49. See 1 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 10-12 (1985); MILL, supra note 26, at 9. Legal decisions concerning refusal of medical care by competent adults are consistent with this description of rights and their limitations. See Nobel, supra note 3, at 616-20.
50. 494 U.S. 872 (1990).
51. See id. at 874.
52. See id. at 882.
53. See id.
54. 321 U.S. 158 (1944).
55. 278 F. Supp. 488 (W.D. Wash. 1967), aff'd per curiam, 390 U.S. 598 (1968).
56. See 321 U.S. at 170. The Court also indicated in dictum that parental free exercise rights were inadequate to support a claim for exemption from child immunization laws, stating that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice relig ion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." Id. at 166-67 (citation omitted); see ako Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979) (rejecting parental free exercise challenge to child immunization requirement and stating, "To the extent that [immunization] may conflict with the religious beliefs of a parent, however sincerely entertained, the interests of the school children must prevail").
57. See 390 U.S. at 598.
58. King County Hosp., 278 F. Supp. at 504-05.
59. For an extended exposition of this point, see Dwyer, supra note 14, at 1405-23.
60. For an extended argument along these lines, see id. For an explanation of the distinction between a right and a privilege, see id. at 1374-75.
61. Ohio v. Miskimens, 490 N.E.2d 931, 934 (Ohio Ct. Com. Pl. 1984) (emphasis added).
62. See, e.g., William Galston, Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources of Liberal Theory, 40 WM. & MARY L. REV. 869, 874 (1999);
63. Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. CHI. L. REV. 937, 940 (1996); see also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (describing the ability to make decisions regarding child rearing as a "fundamental liberty interest"); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (conferring on Amish parents a constitutional right to keep their high school age children out of school by relying on "the fundamental interest of parents . . . to guide the religious future and education of their children").
64. See FEINBERG, supra note 27, at 37-38.
65. See id. at 37 (including "successfully raising a family" among those human interests that are "ulterior" rather than fundamental).
66. Cf. Kendall v. Kendall, 687 N.E.2d 1228, 1236 (Mass. 1997) (holding that restriction on non-custodial parent's exposure of children to his religion's beliefs and services did not violate his parental or free exercise rights and concluding that "requiring only that he limit sharing certain aspects of his beliefs with his children" imposed only a minimal burden on those rights and was justified by a finding that the restriction was in the best interests of the children).
67. See, e.g., Ingram, supra note 1, at 65 ("The first amendment prohibits the state from prescribing that physical life on earth is more important than life hereafter. . . . [P]arents have the right to make that decision for their children . . . ."); DiCamillo, supra note 3, at 157; Robinson, supra note 23, at 415-16, 431.
68. See, e.g., Ingram, supra note 1, at 58, 62-65; Lederman, supra note 7, at 923.
69. See, e.g., Ingram, supra note 1, at 65; DiCamillo, supra note 3, at 143-44.
70. See, e.g., Nobel, supra note 3, at 651, 710; Kearney, supra note 11, at 885. Several courts have also taken this position, drawing the line of permissible court intervention between life-threatening and other conditions. See Dwyer, supra note 19, at 1356.
71. See, e.g., Smith, supra note 11, at 1523-25 (arguing that courts should judge parents' conduct in denying medical care to children by a subjective rather than objective standard of reasonableness); Steckler, supra note 8, at 517 (same).
72. For a description and critique of cases in which criminal defendants have based a defense to charges of rape, kidnap, and other crimes against adult (usually female) victims on the defendant's holding non-western cultural beliefs, see generally Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REV. 1093 (1996). Coleman points out that arguments for a cultural defense in such adult contexts have numerous problems: they overlook the fact that the primary function of the criminal law is to protect victims and the public generally from harmful conduct; excusing conduct on the basis of cultural beliefs sends the message that such conduct is acceptable, and so persons inclined to engage in such behavior have no reason to conform to majoritarian norms; basing culpability on the culture of the victim amounts to a violation of equal protection guarantees and sends a message to subordinate members of cultural minorities that they are not worthy of the protection of our laws and cannot hope to escape the oppressive practices of die culture of their upbringing; and condoning practices motivated by values and attitudes that we as a society have rejected erodes the progress we have made toward eliminating injustice and the treatment of certain classes of persons as less worthy human beings. See id. at 1136-44. All of these problems also afflict arguments for religious exemptions to child neglect laws.
73. See generally Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L. REFORM 835 (1985) (demonstrating that what is generally viewed as state non-intervention in the family is actually just another kind of state intervention - namely, state creation and enforcement of legal rights for the dominant person in family relationships).
74. See, e.g., Gilles, supra note 40, at 953-57; Ingram, supra note 1, at 58-59; cf. Parham v. J.R., 442 U.S. 584, 602 (1979) ("The law's concept of the family . . . historically . . . has recognized that natural bonds of affection lead parents to act in the best interests of their children." (citations omitted)).
75. See, e.g., Ingram, supra note 1, at 58-59.
76. Stephen Gilles argues for plenary parental control over children's education along these lines. See Gilles, supra note 40, at 953-60.
77. Cf. BRUCE A. CHADWICK & TIM B. HEATON, STATISTICAL HANDBOOK ON THE AMERICAN FAMILY 135-36 (2d ed. 1999) (indicating that there were over one million child victims of substantiated maltreatment - including emotional abuse, sexual abuse, physical abuse, and neglect - in the United States in 1995 and almost three million children reported to be victims of parental abuse or neglect in that year). 55 Genesis 22:1-14. There is no indication in this biblical story that Abraham believed killing Isaac would be good for Isaac.
78. See supra note 22.
79. Cf. CHADWICK & HEATON, supra note 54, at 118 (showing that 49% of parents say they do not restrict the amount of television their five to seventeen year-old children watch and that 19% say they do not restrict the content of what their children watch); id. at 117 (showing that 94% of parents allow their children to be home alone after school, at night, and even overnight); id. at 115 (showing that 10% of children have been suspended or expelled from school and that 2.4% drop out of school); id. at 113 (showing that 10% of parents give themselves a grade of C or worse for the quality of their parenting); id. at 124 (reporting the results of a survey of parents showing that 29% seldom or never have calm discussions with their children about serious disagreements between them); id. at 104 (showing that 20% of parents report almost never talking with their children about things that worry the children and that 62% report almost never talking with their children about things that excite the children); JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY 9 (1999) (noting the great disparity among parents in their ability to make intelligent choices about their children's education).
80. Stephen Gilles, addressing authority over children's education, appears to take the position that the State should conclude that parents, at least when motivated by religious belief, are entitled to plenary control of this aspect of children's lives because parents have greater incentive to further their children's interests as they perceive them than the State has to further children's interests as it perceives them. See Gilles, supra note 40, at 940. He adds as an important proviso, though, that parents must be acting within bounds of reasonableness and he appears to presume that the State will define what those bounds are (who else would do it?). See id. But for the State to reach the conclusion Gilles urges regarding parental entitlement, the State would have to assume that, from its perspective, it is good for children to have promoted their interests as their parents perceive them. This in turn would require the State to regard the parents' perception as accurate, or at least plausible, based on the State's own criteria for children's welfare. The State could not rationally conclude from the fact of high parental motivation that parental control is best if the parents' view of what is best for their children entails, from the State's perspective, great physical harm, educational deprivation, or other harm. In fact, the high motivation of such parents would be reason to give them less control. Thus, the fact that parents have a different worldview cannot carry any independent weight; the State must define the permissible range of parental choices, based on its own standards and empirical assumptions, and afford parents only the freedom to choose within that range. The critical question is simply how broad the range should be, or how much freedom the State should give parents to depart from the State's judgments. In Gilles's theory, "reasonableness" ends up doing all the heavy lifting, but he never gives material form to that phantom concept. As noted above in the text, this is par for the course among proponents of extensive parental religious freedom. Gilles offers no reason why the State should not conclude that parents act unreasonably, regardless of what motivates them, if they act significantly contrary to what the State regards as in children's best interests.
81. See, e.g., Robinson, supra note 23, at 431; cf. Parham v. J.R., 442 U.S. 584, 602 (1979) ("[O]ur constitutional system long ago rejected any notion that a child is 'the mere creature of the State' and, on the contrary, asserted that parents generally 'have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.'" (citations omitted)).
82. See AMY GUTMANN, DEMOCRATIC EDUCATION 14 (rev. ed. 1999). Courts, too, when acting to restrict parenting practices deemed harmful, often do so to serve interests of society as a whole rather than for the sake of the individual child at issue. See, e.g., Walker v. Superior Court, 763 P.2d 852, 870 (Cal. 1988) ("Imposition of felony liability for endangering or killing an ill child by failing to provide medical care furthers an interest of unparalleled significance: the protection of the very lives of California's children, upon whose 'healthy, well-rounded growth . . . into full maturity as citizens' our 'democratic society rests, for its continuance.'" (quoting Prince v. Massachusetts, 321 U.S. 158, 168 (1944))).
83. See, e.g., Robinson, supra note 23, at 431 (identifying as "the fundamental principle at stake: Who 'owns' the child and who will determine what (including religion) is in the child's best interest. Will it be the state or the parents?").
84. See supra note 6.
85. See, e.g., Ingram, supra note 1, at 63; Lederman, supra note 7, at 921; Steckler, supra note 8, at 514-15.
86. Cf. Ohio v. Miskimens, 490 N.E.2d 931, 934 (Ohio Ct. Com. Pl. 1984). In rejecting a parental free exercise claim to a religious exemption to medical neglect laws, the court stated: [T] his court, as with any governmental entity, can neither know nor care whether someone who relies solely on faith healing for his own affliction is religiously or scripturally "correct." But the right to hold one's own religious beliefs, and to act in conformity with those beliefs, does not and cannot include the right to endanger the life or health of others, including his or her children. Id.
87. Some have couched the argument against the State assuming the falsity of religious beliefs in terms of the religious beliefs of the children themselves. See, e.g., Ingram, supra note 1, at 63. With respect to very young children, that argument depends upon a prediction about children's beliefs at some point in the future. Even if any predictions were reliable, determining what the relevant future point in time would be - for example, when the child is old enough to speak, when the child is old enough to think independently, when the child reaches adulthood - would be a difficult task that proponents of the argument have not undertaken. With respect to older children - for example, teenagers - complex questions regarding the appropriateness of deferring to children's expressed wishes arise, and proponents of this argument have not undertaken to answer those questions either. But cf. Jennifer L. Rosato, The Ultimate Test of Autonomy: Should Minors Have a Right to Make Decisions Regarding Life-Sustaining Treatment?, 49 RUTGERS L. REV. 1, 49-51 (1996) (arguing that young children should not have a right to refuse medical care but that "mature minors" with terminal illnesses should have a right to reject life-sustaining treatment in limited circumstances). As Rosato notes, current law is largely opposed to the view that minors should have the power to refuse medical care for themselves when they are seriously ill. See id. at 17.
88. For an argument against creating a mature minor doctrine in these cases, see Jessica A. Penkower, Comment, The Potential Right of Chronically III Adolescents to Refuse Life-Saving Medical Treatment - Fatal Misuse of the Mature Minor Doctrine, 45 DEPAUL L. REV. 1165 (1996). Compare Prince v. Massachusetts, where the Court stated: [T]he mere fact a.state could not wholly prohibit this form of adult activity . . . does not mean it cannot do so for children. . . . The state's authority over children's activities is broader than over like actions of adults. . . . A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with ail that implies. It may secure this against impeding restraints and dangers within a broad range of selection. 321 U.S. 158, 168 (1944).