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III.
Civil Exemptions Undermine Parental Legal Responsibility
Despite
Denials by HHS, Civil Exemptions Do Undermine Parental Legal
Responsibility to Provide Care
Common
Law Does Not Effectively Restore Parental Duty When the
Duty is Confused or Negated by Exemptions
The
cornerstone of present HHS policy on the exemptions is to
allow states to exempt parents from neglect charges - thereby
apparently absolving parents from responsibility for providing
medical care. HHS, however, has alternatively argued that
civil exemptions do not really negate such responsibility
(in the absence of specific criminal statutes) since the
common law provides for a duty to care. However, common
law in the absence of a specific statute, provides no enforcement
capability, so parents will have no incentive to carry out
a common law duty when a specific statute appears to absolve
them of the specific duty.
Serious
Ambiguities in Laws Confuse and Undermine Parental Duty
to Care
Civil
religious exemptions are a maze of legal ambiguities, open
to opposite interpretations. Either the parent must rely
on spiritual healing no matter what the circumstances, or
only in limited, non-serious circumstances.
Pages
of legal briefs of prosecutors and defense lawyers, and
pages of decisions of state Supreme Courts, have argued
and ruled on the differing interpretations of the pertinent
language found in state religious exemption laws: "that
a child will not be considered neglected", "due solely",
or "for the sole reason", or "for that reason alone". Such
legal complexities and ambiguities substantially undermine
a clear legal statement of the parental duty to provide
care with the result that children have lost their lives.
Even
in the presence of criminal statutes requiring parental
provision of medical care, civil exemptions may legally
confuse and undermine the enforcement of such a duty.
Ambiguities
Created by Exemptions Hurt Children and Parents by Failing
to Provide "Fair Notice" of Parental Duty
Fourteenth
Amendment due process requires that parents have "fair notice"
of their duty under the law; conflicting statures undermine
fair notice and prevent enforcement of the parental duty
to provide medical care-again leaving parents potentially
free to refuse to provide life-saving medical care. In Florida,
the conviction of Amy Hermanson's parents for allowing their
7-year-old to die a lingering death due to lack of insulin
was overturned to the fair notice ambiguity created by a
civil religious exemption.
The
point here is to show that HHS cannot claim that civil exemptions
(much less the criminal exemptions for which HHS must also
take responsibility if it is to stand for children) do not
absolve or appear to absolve parents from responsibility
to provide their children with necessary medical care. In
fact, suct exemptions do undermine such legal responsibility.
HHS
Policy Fails to Protect Children; Religious Exemptions Must
Be Repealed
In summary,
HHS policy transfers, or at best appears to transfer, the
duty to care for children suffering from religious medical
neglect from the parents to the reporting system. Given
the very major difficulties that the administrative and
judicial systems will have in detecting illness and injury
in the case of children of Christian Scientists and adherents
of other faith healing sects, this transfer of responsibility
must result in the disability and death of these children.
As has
been argued, the reporting system cannot be expected to
function adequately as a primary substitute for the parental
protection of children. Religious exemptions by legally
undermining the essential parental responsibility leave
helpless children dependent of the thinnest of margins,
that is, will someone within the religious community make
a report? Experience indicates probably not. Will someone
in the wider community learn of the child's condition in
time to make a difference? Experience has shown that this
is not a sufficient probability on which to stake a child's
life. Most of the 165 children known to have died after
medical care was withheld on religious grounds went unreported
or were reported too late.
The
only solution to the life and death dilemma is for HHS to
require that states remove religious exemptions from their
statutes, criminal and civil, thereby transferring legal
responsibility for necessary medical care back to the parents.
Christian Science officials have stated publicly on numerous
occasions that Christian Scientists are law-abiding and
will follow the law.
Furthermore,
Christian Science parents are instructed to consult with
church officials during childhood illness as to their specific
legal responsibilities for providing medical care. More
generally, if the law holds parents directly accountable,
children, over time, will be better protected. The reporting
systems can then function as they were meant to, that is,
as a back-up.
National
law in Canada and Great Britain, in contrast to HHS policy
and practice, unambiguously states that all parents, regardless
of religious beliefs, must provide medical care to seriously
ill children. Christian Science continues in these countries.
Does the United States place any less value on the life
of a child than these two countries?
While
Intent of HHS Policy is to Help Parents, Its Actual Consequence
is to Abuse Parents and Children
HHS's
stated reason for its policy of maintaining the exemptions
is the wish not to stigmatize as negligent, parents who,
because of their religion, are under conflicting pressures.
Tragically, the exemptions have led and may lead to a more
grievous parental burden: the death of a beloved child and
prosecution for involuntary manslaughter. Religious exemptions,
even in the civil code, can mislead parents into thinking
that the state sanctions and endorses spiritual healing
under all circumstances. Such legal ambiguities may add
to the parents' belief that they are doing all they should
and are obligated to do.
In many
states civil and criminal religious exemptions to neglect
may relieve or appear to relieve parents of responsibility
for providing necessary medical care while the child lives,
no matter how serious the condition; yet should the child
die then separate manslaughter laws provide that the parents
can be held criminally responsible for failing to provide
medical care.
It is
outrageous for state statutes to mislead parents into believing
they have no responsibility for medical care as long as
the child lives and then to demand such responsibility once
the child is dead. Christian Science parents in Massachusetts
and California have lost their children and been convicted
of manslaughter as a legal result of the clash of exemptions
to neglect with the separate manslaughter laws.
Such
an intrinsically barbaric scheme, fueled by the exemptions,
stresses punishment rather than prevention. It would be
better to make clear a parent's legal duty to provide medical
care before a child dies. HHS's rationale for wanting to
spare a parent the embarrassment of legal accountability
for neglect withers in the face of the loss of a beloved
child and a legal accounting for involuntary manslaughter.
Depending
on the circumstances of the medical neglect, it may not
always be necessary to actually bring charges; however,
the law must give the option for enforcement of parental
responsibility or parents will have no incentive for exercising
such necessary responsibility.
HHS
should also require states, as a condition of federal funding,
to repeal criminal religious exemptions. If state criminal
laws establish a separate standard of care for a minority
group of children, how can HHS definitively determine that
such a standard will have no legal impact on a child's access
to state care.
Return
to top.
Table
of Contents:
-
HHS Policy on State Religious Exemptions
- HHS
Policy Jeopardizes the Lives of Children
HHS Policy on Transferring Responsibility for Providing
Medical Care From Parents to the Reporting System, Coupled
With the Reporting System's Inherent Difficulty in Detecting
Medical Neglect, Flagrantly Jeopardizes the Lives of Children
- Civil
Exemptions Undermine Parental Legal Responsibility
Despite Denials by HHS,
Civil Exemptions Undermine Parental Legal Responsibility
to Provide Care
- HHS's
Current Attempts to Clarify Are Limited and Problematic
HHS's Current Attempts to Clarify the Impact of the
Exemptions on State Reporting Systems are Meeting With
Only Limited and Problematic Results and May Be Intrinsically
Incapable of Success
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Conclusion
Appendix:
Cases
of Childhood Deaths Due to Parental Religious Objection
to Necessary Medical Care
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