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IV.
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.
Ignoring
the primary problem of the need for parental responsibility,
HHS is pursuing the flawed strategy of attempting to get
the states to clarify their exemptions so that the exemptions
are not perceived to interfere with the state's ability
to provide medical care.
Religious
exemptions, both civil and criminal, in over 40 states come
within a wide range of legal forms and consequences: from
exemptions to the ultimate crimes against children, including
manslaughter, to exemptions against civil findings of neglect.
The civil exemptions themselves come in a variety of forms,
statutory purposes and legal consequences. There are exemptions
which affect the various steps of the administrative and
judicial processes: sometimes an exemption to reporting
and not the power of the court to order care, sometimes
just the opposite. Exemptions are somewhat distinct by region,
but there is no rule. The common hallmark of the exemptions
is their ambiguity: ambiguities created by the interaction
of civil and criminal exemptions; ambiguities created within
one civil exemption by wording open to at least two interpretations,
ambiguities created by differences among two or more civil
exemptions.
The
effect of these ambiguities on parents' duty to care has
been discussed at length. The ambiguities have also had
a profound effect on state reporting systems' perceptions
of whether they legally can or cannot act once a case of
religious medical neglect has been detected and reported.
In a
number of cases that actually came to the attention of authorities,
civil exemptions have variously discouraged police and social
workers from investigating, mandated reporters from reporting,
and courts from actually ordering care.
In Delaware,
child protective services believed that a relatively simple
civil exemption did not prevent them from providing medical
care to a Christian Scientist child with cancer. The Delaware
Supreme Cout, however, denied the medical care and the child's
chance to live, citing the exemption as one of their reasons.
(Newmark v. Williams, 588 A.2nd 1108-1116.)
Simply
put, the ambiguities in the civil exemptions and their interactions
with the criminal exemptions have left state reporting systems
sometimes uncertain as to whether they can intervene in
the case of religious medical neglect as they would in all
other cases of medical neglect.
HHS's
current major initiative is to attempt to solve this problem
by clarifying state exemptions so that religiously neglected
children will have the same access to medical care through
the reporting system as all other children. HHS is pursuing
this goal by the following means:
- where the exemptions statues are "unambiguously" at
variance with HHS policy, HHS is requesting statutory
change;
- where the statutes are considered "ambiguous," and
therefore open to differing legal interpretations, HHS
is attempting to obtain formal state Attorney General
Opinions interpreting the exemptions in line with HHS
policy.
Attorney
General Opinions have a substantial degree of legal force,
although the degree of force can vary by state.
However,
such Opinions are open to challenge. They may be misinterpreted
or made irrelevant if overruled by a court. In a majority
of states, HHS has found the exemptions to be ambiguous
and is therefore requesting Attorney General Opinions. However,
in some states, where an Attorney General is unwilling to
provide an Opinion, HHS Regional offices seem willing to
accept non-legally-binding opinions from administrative
agencies.
Since
HHS's object is to try to make the reporting system work
(if a report is actually received), the Department's strategy
in the majority of states is to obtain favorable legal interpretations
of the exemptions. HHS hopes that the interpretations will
provide sufficient guidance to the many different reporters,
investigators, administrators, court personnel and judges
to ensure that the exemptions do not prevent children from
receiving state care.
There
are several major problems with the HHS effort:
- Although HHS has set out to establish uniform standards
by which to interpret all state exemptions, a state-by-state
analysis will show important variances and conflicts in
state compliance findings by HHS: the language of an exemption
in one state is found in compliance while the same language
in another state is ruled out of compliance. There is
also a definite variation of adequacy of interpretation
by region; moreover, there is also a variation of adequacy,
consistency, and strength of compliance enforcement by
region. Even within regions there are glaring ambiguities
of enforcement.
-
Except for a minority of states where HHS is seeking statutory
change, HHS is seeking to solve the problem of religious
exemptions by creating an entire sub-statutory structure
of Attorney General Opinions in the hope that the state
systems will look to the expected clarity of the Opinions
rather than to the ambiguities of the actual laws. Naturally,
over time, HHS hopes that personnel in the state systems
will become sufficiently aware of the various points in
the Opinions so as to ensure needed medical treatment.
The basic problem with this policy is whether a legal
sub-system of Attorney General Opinions, or even non-legal
agency guidance, provide a sufficient antidote to ambiguous
state laws for the purpose of protecting children. Will
such provisions adequately withstand challenge from religious
opponents looking to stand on the ambiguities of the actual
laws? Even if the Opinions themselves turn out to be clear
and unambiguous, is such a non-statutory scheme worthy
of our desire to prevent needless death and disability?
The
inherent danger of risking children's lives on Attorneys'
General interpretations of ambiguous religious exemptions
is highlighted by the Delaware case, cited above. The
Delaware exemption is of the type that is the least complex
of the civil exemptions; it is also the most prevalent
of the exemptions adopted by the states. The wording of
the exemption is highly ambiguous and open to alternative
interpretations: either the parent may rely exclusively
on spiritual healing no matter how serious the child's
illness, or the parent may rely exclusively on spiritual
healing as long as medical care is not necessary to prevent
harm to the child. Prior to the Delaware Supreme Court
decision (Newmark v. Williams, cited above), HHS declared
the common Delaware exemption as "ambiguous", and following
its policy in many other states, asked only for an Attorney
General Opinion that the exemption be interpreted as meaning
only that the parents could rely on spiritual healing
in non-serious cases.
In the interim, the Delaware Supreme Court, apparently
unaware or unsympathetic to HHS's proposed interpretation,
chose to construe the statute as providing an exemption
even in life-threatening cases. HHS suddenly found its
most common national formula for resolving the religious
exemption problem tossed aside by the Delaware Suprem
Court. (The immediate tragedy in the case was that a child
might have lived if HHS, twenty years earlier, had not
pressured Delaware to adopt the ambiguous law in the first
place.)
Following the decision, HHS responded by ruling the state
should be held out of compliace until the exemption is
repealed or the Court decision invalidated by legislative
action. (The Court's decision now rendered the "ambiguous"
exemption unambiguous.)
Because the Delaware exemption is the common formula for
the largest number of state exemptions, the Delaware case
should send up storm warnings for the entire HHS compliance
process. Presumably the proposed HHS compliance interpretations
for the other states using the common formula may be equally
vulnerable. The unanswered question, of course, is: if
the Delaware Attorney General had already issued his Opinion
incorporating the HHS interpretation, would the Court
have relied on that Opinion, or would the Court have looked
at the Opinion, compared it with the statute, and made
its own interpretation at variance with the Opinion? The
question cannot be answered with any degree of certainty,
and it is this substantial doubt that now must taint HHS's
proposed reliance on Attorney General Opinions, rather
than statutory repeal, in the many other states.
In 1993, the complications surrounding the Delaware religious
exemption took a very surprising turn when the Delaware
Attorney General's office determined that the exemption
is unconstitutional under both the Delaware and United
States Constitutions. The Delaware Attorney General's
Opinion, dated August 10, 1993, declares:
...the Delaware Supreme Court in Newmark v. Williams,
588 A.2d 1108, 1112 (Del. 1991) "recognize(d) the
possibility that the spiritual treatment exemptions
may violate the ban against the establishment of an
official State religion guaranteed under both the
Federal and Delaware Constitutions."
The basis for the Delaware Supreme Court's conclusions
are detailed in two extensive footnotes in the Newmark
opinion. ID 588 A.2d at 1112-1114, nn.7 and 8.
We reviewed the reasoning of the Delaware Supreme
Court, recent United States Supreme Court opinions
relating to freedom of religion, and opinions from
other jurisdictions holding such exemptions unconstitutional.(4)
As a result of that review we conclude that both the
Delaware Supreme Court and the United States Supreme
Court, if called upon to rule on the issue, would
find that the Spiritual Treatment Exemptions in 16
Del. C. S 907 and 10 Del. C. S 9012 (11) are unconstitutional.
Footnote 4: See eg. People v. Rippberger,
283 Cal. Rptr. 111 (Cal. App. 1991), Walker v.
Supreme Court of Sacramento, California, 763 P.2d
852 (Cal.1988), cert. Denied, 491 U.S. 905 (1985);
State v. Miskimens, 490 N.E. 2d 931 (Ohio Ct.
Com. Pleas 1984); Hermanson v. State, 604 So.2d
775 (Fla. 1992) and Minnesota v. McKown, 475
N.W. 2d 63 (Minn. 1991), cert. Denied, 112 S.Ct. 882
(1992) (all holding spiritual exemption defense unconstitutional.)
Immediately, the Opinion reaches the inescapable
conclusion: If the statutes are unconstitutional as
written, can they be enforced?
Answer: The spiritual Treatment Exemptions cannot
be enforced.
A state official or employee who attempts to enforce
a statute or portion of a statute that he or she has
reason to believe is unconstitutional, subjects himself
or herself to liability under the federal Civil Rights
laws and other common law tort laws. As stated above,
the spiritual treatment exemption is unconstitutional.
Therefore, the exemptions should not be enforced.
The ruling by the Delaware Attorney General simply underscores
the necessity that HHS should immediately review the constitutional
validity of the state religious exemptions or alternatively,
through an appropriate legal venue, seek a federal court
ruling on the constitutionality of the state religious
exemptions.
-
Unfortunately, over the past two years, HHS's expectations
of obtaining clear and unambiguous Opinions have yet to
be fulfilled. The bureaucratic effort, in many cases,
has been lengthy, cumbersome, and unrewarding: months
have been spent in non-productive correspondence with
state agencies which often failed to understand the corrections
sought. The result is that some Opinions are either as
ambiguous as the exemptions themselves or simply not responsive.
In some cases HHS has taken strong action, in others the
regions seem to have accepted half-way solutions or have
failed to enforce policy at all.
-
There is of course the realistic problem that Attorneys
General are being asked for legal Opinions that have the
potential consequence of causing their states to lose
federal monies to combat child abuse and neglect. While
in most cases, Attorneys General would strive to provide
their best legal interpretations of ambiguous laws, the
very ambiguities of the laws, plus the understandable
political incentives to maintain the flow of federal monies,
cannot help but create the incentive to see if Opinions
might not be crafted in accord with HHS's demands. Such
pressures could lead to the crafting of Opinions vulnerable
to challenge and reversal. This problem adds to the weight
of uncertainty and weakness of HHS's current policy and
reinforces the potential dangers exemplified by the Delaware
Supreme Court Decision.
Even
the small minority of children affected are entitled to
the unblemished and unadulterated protections of the law
provided to all other children. It is highly doubtful that
HHS's present course will effectively build a sufficiently
strong and unambiguous overlay of Attorney General Opinions
to counteract the intrinsic inadequacies of the religious
exemption laws. The process is too cumbersome, bureaucratic,
and founded on complex ambiguities of the law.
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
-
Conclusion
Appendix:
Cases
of Childhood Deaths Due to Parental Religious Objection
to Necessary Medical Care
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