Religious Exemptions From Health Care For Children

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

CHILD's Public Policy Achievements

CHILD's Legal Initiatives

• Lawsuits
• Amicus Curiae Briefs

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Two studies indicate that Christian Science adults have higher mortality rates than the general population. See Simpson, William. "Comparative longevity in a college cohort of Christian Scientists." JAMA 262 (22-29 Sept. 1989): 1657-8 and Simpson, William. "Comparative mortality of two college groups, 1945-83." Mortality and Morbidity Weekly Report 40 (23 Aug. 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 in 140 of the cases the children would have had at least a 90% likelihood of survival with medical care. The Asser/Swan study is entitled "Child fatalities from religion motivated medical neglect" and appears in the April, 1998, issue of Pediatrics, the official, peer-reviewed journal of the American Academy of Pediatrics. For more information contact Asser at 619-602-2403, sethasser@rocketmail.com, or Swan at 712-948-3500, childinc@netins.net.

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 churches. 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 spread to children in the general community and cost St. Louis County more than $100,000 to manage. In the first six months of 1994, there were 730 measles cases nationwide. A Christian Science youth was the index patient for 247 of them.

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. CHILD believes mortality rates among these children are much higher than in the general population although their church will not release membership figures.

Since 1973, 65 Faith Assembly children have died of treatable illnesses without medical care. In 1983, the Center 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 of Faith Assembly babies was 270% higher. See Kaunitz, Andrew, Craig Spence et al. "Perinatal and maternal mortality in a religious group avoiding obstetrical care." American Journal of Obstetrics and Gynecology 150 (1 Dec. 1984): 826-31.

The Oregonian reports that 78 children have died since 1955 in the Followers of Christ church near Oregon City, a church opposed to medical care. Twelve children have died in an Idaho affiliate of the Followers of Christ. See Mark Larabee and Peter Sleeth, "Faith healing raises questions of law's duty--belief or life?" The Oregonian 7 June 1988: 1.

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Massachusetts, Maryland, South Dakota, Hawaii and Oregon have recently removed religious exemptions from a duty to provide medical care for a sick child. CHILD gave extensive support to these repeal efforts. CHILD members have testified before several state legislatures and have successfully blocked the Christian Science church from getting more religious exemptions enacted.

Presentations by CHILD members to the American Academy of Pediatrics, American Medical Association, National Committee for Prevention of Child Abuse, U. S. Advisory Board on Child Abuse and Neglect, and the National District Attorneys Association contributed to those organizations' adoption of policy statements against religious exemptions.

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1. CHILD, Inc. and Brown v. Deters, 92 F.3d 1412, 1418 (Sixth Circuit 1996)

CHILD and Brown v. Deters was filed in August, 1994, in the U.S. District Court in Cincinnati. 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.

The lawsuit was an effort to establish civil rights of children in federal law. Beginning in 1903 American courts have consistently ruled that the first amendment does not confer a right to withhold medical care from children. Nevertheless, legislatures have given caretakers rights that the Constitution and case law have not given. Forty-two states have religious exemptions either to child abuse, neglect, or some criminal charges while others have exemptions for "non-medical remedial treatment."

CHILD v. Deters raised the question of whether a religious exemption from a parental duty of care is a legitimate act of legislative discretion. The circuit courts of Coshocton and Mercer Counties, Ohio, ruled the religious exemption in Ohio’s penal code unconstitutional in 1984 and 1987 respectively, but the rulings were not appealed. Four other state courts have ruled such exemptions unconstitutional either on First or Fourteenth Amendment grounds, but federal courts have not yet ruled on the question.

The district court granted the plaintiffs standing to have a trial on the merits of the statute, but the Sixth Circuit 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 U.S. Supreme Court denied review.

2. CHILD, Bostrom, and Petersen v. Vladeck and Shalala

CHILD v. Vladeck, civil action 3-96-63, was filed January 19, 1996, in the U. S. District Court in Minneapolis 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, Judge Richard Kyle struck down the laws and regulations mandating such payments, declaring them unconstitutional, invalid, and unenforceable.

When the 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 employees must be members of the Christian Science church. All patients must retain Christian Science healers for spiritual "treatments."

Federal laws exempt the sanatoria from requirements to provide a minimal level of care. A federal official has told CHILD privately that the government cannot set standards for the kind of nursing done in the sanatoria.

CHILD argued that it is unconstitutional for the government to delegate to a church the power to determine which institutions shall 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 ice or giving backrubs. They have been retained to attend sick children and have sat taking notes as the children suffered and died, but have not called for medical care nor recommended that the parents obtain it. The notes of these nurses indicate that they observed the 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 them.

Senator Orrin Hatch, R-Utah, wrote the Christian Science church that he had "taken the lead" to restore Medicare and Medicaid payments for Christian Science nursing. In June he introduced an amendment mandating such payments for "religious non-medical health care." It was added to the budget bill with no discussion.

Attorney-General Reno’s office wrote Congress a 21-page letter in June advising them of constitutional problems with their draft statute. CHILD believes that Congress ignored several concerns raised in the letter.

The bill was signed into law by President Clinton on August 6, 1997. Hatch’s amendment repealed the statutes and regulations declared unconstitutional in CHILD’s suit, thus mooting the court ruling, and established payments for Christian Science nursing under new statutory language.

3. CHILD, Inc., Bostrom, and Petersen v. DeParle and Shalala, U.S. Dist. Court, Minnesota, 4th division, CIV 97-1794 ADM/JGL

On August 7, 1997, CHILD, Inc. and two of its Minnesota members filed suit asking the federal court to rule the new statute unconstitutional. It 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.

The federal law requires the non-medical health care institutions to have "religious beliefs" against medical examination, diagnosis, and treatment and prohibits the government from requiring medical diagnoses of their patients. Congress claims that the criteria it set up for religious non-medical health care are intended to prevent "fraud." (Conference Committee Report on the Balanced Budget Act of 1997)

On July 24, 1998, the U.S. District Court in Minneapolis granted summary judgment 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 non-medical 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 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 on Finance and Administration of the United Methodist Church, Presbyterian Church (U.S.A.), Christian Medical and Dental Society, and Senator Ed Kennedy, D-MA, filed amicus briefs in support of the federal government and the Christian Science church.

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

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1. People v. Shalala, case #93-15700 and #93-15936, in the U.S. Court of Appeals, Ninth Circuit. CHILD's amicus asked the court to review the constitutionality of California's religious exemption to child neglect charges. The California Medical Association also submitted an amicus calling for a ruling on the discrimination posed by the exemption. The federal government later withdrew its appeal.

2. Flores v. City of Boerne, #95-2074, before the U. S. Supreme Court. Joined by the American Professional Society on the Abuse of Children, CHILD argued that the Religious Freedom Restoration Act (RFRA) compromised states' efforts to protect children and is unconstitutional. The High Court ruled RFRA unconstitutional in June, 1997.

3. In the Interests of Overcash v. Doe, U. S. Supreme Court, October term 1996, #97-99, on petition for certiorari. CHILD joined 19 amici in support of the propositions that Fourteenth Amendment due process and equal protection clauses do not prohibit courts from remanding child protection cases on the basis of staleness and that children in protective custody are entitled under the constitution to meaningful appellate review. The High Court denied the petition for cert.

4. Commonwealth v. Nixon. See Pennsylvania Amicus Brief.

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