Faith, the constitution, and dead children

By Melissa Davlin, Idaho Reports

We’ve looked at Idaho’s faith healing exemption in both civil and criminal laws since 2014. We’ve done hours of interviews, and we waited for the right time to put out a story. And frankly, we don’t know if this is the right time. There probably isn’t a right time. Meanwhile, other media outlets have done a great job of exploring the controversy. Much of the coverage and discussion has been emotional, and understandably so; We’re discussing children’s deaths and people’s religious beliefs.

But there’s some important legal analysis that’s been left out of the conversation, even with the extensive media coverage, that we wanted to bring up.

Proponents of getting rid of the exemption have asked why it’s so difficult to address this issue, but in a 2014 interview, Monica Hopkins, then-ACLU of Idaho executive director, explained the tension.

“In many cases we have looked at religious liberty and protecting religious liberty and there is a natural tension that comes into play when we’re talking about policy and protecting religious liberty,” she said. “I think that tension is something that our forefathers thought about when they authored the constitution and the bill of rights.”

Finding those boundaries between a parent’s religious liberty, the child’s right to life, and the public good has always been intimidating. And it’s a fascinating philosophical discussion.

But beyond philosophy, there are the medical realities of faith healing.

Loving families, painful deaths

Wood River Valley pediatrician Dr. Barton Adrian, who looked into faith-healing related deaths in Idaho, puts one of many instances into stark terms.

“The kids who die of pneumonia basically suffocate,” he said. “You can see it from across the room. As your lungs get stiffer and full of more junk, you compensate by breathing faster so the kid would have been (gasping).”

But it’s more than just pneumonia. We’ve reviewed dozens of autopsy reports that paint a disturbing picture of children’s final moments of life. Children who died of untreated diabetes, who were severely dehydrated and hyperventilating in their last conscious moments. Children who had bed sores and pus draining from infections. Children who had unimaginable bone pain from untreated leukemia.

These weren’t easy or peaceful deaths. Those children suffered.

We’ve talked with members of the Followers of Christ multiple times, and while they didn’t want to be on camera or on the records, I can say they do genuinely love their children, they genuinely love God, they genuinely believe in their religion. But none of this love or faith will change the fact that children have died painful, preventable, 18th century deaths.

And now here’s the legal side.

Intervention and punishment

First, the distinction between criminal and civil law. The legislature this year debated a change to the civil side of the law; Specifically, when and how judges in Idaho can intervene and order medical treatment while a sick child is still alive, even if the parents use faith healing as a treatment. That bill failed on the Senate floor on an 11-24 vote, largely because many Republicans felt the proposal went too far and allowed the government to infringe on a parent’s rights and religious liberties.

Here’s the thing about that: Judges already have the ability to intervene. And they often do, when they know about a sick child, even when those families don’t believe in medical intervention.

Most of the public debate around faith healing exemptions has focused on the criminal side of the law — rather, whether prosecutors should be able to charge parents who decline to seek medical treatment for religious reasons, resulting in serious injury or death to their child.

In other words, the debate is whether those parents can be punished if or when the child dies.

On the criminal side, the law already prohibits actions, like physical abuse, in the name of religion.

One difference here, said Canyon County Prosecutor Bryan Taylor in a 2015 interview with Idaho Reports, is that faith healing involves inaction.

“If a parent is causing and doing the act that places the child into this particular situation, then more likely than not, it’s at least reviewable and the faith healing exemption may not apply,” Taylor said. “The inaction would be really more focused around not providing the medical treatment for whatever reason.”

A constitutional question

The US constitution raises some questions about the statute.

While you’ve heard about freedom of religion, the First Amendment is more complex than that. Freedom of religion means that while you have the freedom to believe whatever you want, the government cannot establish a state religion, and government cannot investigate your religious views.

And the government also can’t prefer one religion over another — something University of Idaho law professor Shaakirrah Sanders says may be happening with this law.

There aren’t many religions that decline to accept any form of medical treatment, she said. This is a law that arguably benefits a very small group of people.

On the flip side, the legislature is perfectly OK with limiting other aspects of religious practices, regardless of how sincere those practitioners are. Polygamy and bigamy come to mind.

When it comes to exemptions like this, there is no other equivalent in Idaho law. There is no other religious practice in Idaho that gets an automatic, built-in defense for something that could trigger an investigation in any other case.

Then there are the courts.

While there isn’t Idaho criminal case law on religious freedom as it pertains to medical treatment and neglect, there are cases from other states. One civil case in particular made it to the U.S. Supreme Court, in which a deceased boy’s father sued his ex-wife, the boy’s mother, after she declined to seek treatment for the child and instead prayed for his untreated diabetes. The Supreme Court upheld a state appeals court decision that awarded the father $1.5 million in damages.

Notably, the court said “Although one is free to believe what one will, religious freedom ends when one’s conduct offends the law by, for example, endangering a child’s life.”

Remember, that was a civil law decision.

So how about criminal case law? First, let’s look at Employment Division v Smith, a 1990 decision by the late Justice Antonin Scalia about faith in general, in which a man made the claim that he should be exempted from laws against smoking peyote because of his religion. The court disagreed.

“So from that case comes the rule that when it comes to laws and criminal laws that apply to everybody else, the First Amendment Free Exercise Clause does not demand any type of religious exemption,” Sanders said.

In other words, the Supreme Court ruled those First Amendment religious protections don’t apply to criminal law.

There’s also the Idaho Constitution, Article I, Section 4, which guarantees religious liberty. “The exercise and enjoyment of religious faith and worship shall forever be guaranteed.” We know that part. But then there’s the next few lines. While they mostly deal with polygamy, there’s this key part: “But the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations… inconsistent with morality or the peace or safety of the state, not to permit any person, organization or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime.”

In any other circumstance, not seeking medical care for your injured or deathly ill child could be considered a crime.

In 1993 Attorney General Larry EchoHawk’s office issued an opinion on this very question, saying “The drafters of the Idaho Constitution recognized the importance of assuring that although there should be no limit to an individual’s rights to a religious belief, there were boundaries on an individual’s right to religious practices.”

The opinion also cited Prince vs Massachusetts, a 1944 Supreme Court case which says, quote, “The family itself is not beyond regulation, in the public interest, as against a claim of religious liberty. And neither the rights of religion not the rights of parenthood are beyond limitation; the right to practice religion freely does not include the right to expose the community or the child to communicable diseases or the latter to ill health or death.”

A possible alternative

That brings us all the way back to faith healing, and whether the First Amendment or the Idaho Constitution protects the actions the Followers of Christ are performing, or not performing, in accordance with their religion.

Taylor said he’s uncomfortable with the current exemption; As he and other prosecutors read the statute, it puts the immediate kibosh on investigations.

“I think it needs to be revisited, reexamined,” he said. “Is it truly striking the balance? Is it truly giving us the ability to protect the kids in our community? And right now, I don’t think it does.”

This legislature has made it clear they’re not touching the criminal side of this law, that they don’t want parents to be prosecuted for inactions stemming from their faith, regardless of how many children have died.

The judicial branch can’t infringe on anyone’s beliefs. But it does have the ability to interpret the law differently and change the way it’s applied. And it has a different set of obligations.

“I could see some type of litigation brought on behalf of a child who may or may not have been neglected or abused where a parent was successfully able to raise this exemption now,” Sanders said. “That’s a little bit more difficult scenario because the exemption generally applies after there’s been a death. But I could also see organizations who see this law as wrong sort of bringing a court claim on behalf of the children of Idaho saying hey these kids have a right to life and this law is essentially negates this right to life or improperly places these parents’ religious beliefs or their right to be a parent over their child’s right to life.”

But finding the right organization to sue might be difficult, as the plaintiffs must prove harm. An organization that sues on the behalf of a deceased child would probably have difficult time showing how the death directly harmed them. A dead child can’t sue. The parents, who had custody of the child, likely wouldn’t sue, as they’re the ones who declined seek treatment in the first place. A child that is seriously injured but survives to adulthood would likely have a hard time suing if those injuries resulted in debilitating developmental injuries. There are people who have left the faith healing community, claim harm to themselves, and want to see the law changed, but for whatever reason, have not yet pursued litigation. Instead, the former church members we’ve spoken to have chosen to pursue legislative changes, or no public action at all.

And there’s the question of whether suing would affect the criminal side of the law in the first place.

The state, however, has a compelling interest in keeping a child alive, and could easily show harm. And that’s a potential avenue for answering the question of where that line between free exercise of religion ends and the individual liberties of a child begin.

In other words, if the legislature doesn’t change this, the right plaintiff might. For example, a county prosecutor could attempt to prosecute the presumably unprosecutable, thereby challenging the statute. That could give us the answer the legislature would not.



Seth Ogilvie contributed to this report.


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