I am a member of a committee of the state legislature that will deal soon with a problem I find puzzling. In this state, adult Jehovah’s Witnesses, Christian Scientists, and others clearly have the legal right to follow their religious convictions in avoiding or refusing forms of health care that most people consider appropriate and even obligatory. This, I believe, is as it should be. The difficulty arises when such people, conscientiously following their beliefs, withhold care generally considered appropriate from their minor children or refuse such care on their behalf. In a recent case in another state, parents were prosecuted when, acting on their convictions as Christian Scientists, they did not obtain medical care for their critically ill child. My state’s civil and criminal welfare statutes regarding child neglect and abuse include clauses exempting parents who choose prayer rather than medical care for their children. In recent years, nevertheless, several cases here have reached the courts, and, while the judges usually have overruled the parents and ordered treatment, their decisions have been neither entirely consistent nor supported by cogent reasons. Legislation on the matter seems to be needed.
The problem is complex, with both procedural and substantive aspects. The procedural question concerns what mechanism to use in dealing with such cases, and I do not ask your advice about that. The substantive question is how far our law should go in respecting parental religious convictions in this matter.
It seems to me that various sorts of cases must be sorted out. Sometimes neither individual well-being nor public health urgently require providing health care, and I doubt that parental judgments should be questioned in such cases. Sometimes, however, care is more or less urgent to preserve life or treat serious disease or injury. Here some limits surely must be set on parental judgment, yet it seems at once necessary and virtually impossible to draw the lines.
Then too, it is not clear whether we should respect parental objections (our present law does not) to public health measures, like small pox vaccination.
This question calls for the derivation of norms for making law in this matter. The children of parents who object to a public health requirement on religious grounds should be exempted if, but only if, exempting them will not prevent the measure from achieving its good purpose. The state should neither (1) involve children in programs providing or promoting contraception or abortion without parental consent nor (2) require health care for children unless the parents objectively have a grave duty to seek or accept it. In the case of adolescent children whose parents refuse or omit health care on religious grounds, the law should take into account the difference between those children who agree with their parents and those who disagree. The law also should take into account whether the care is urgently necessary either to preserve life or to prevent serious and lasting impairment of functioning or bodily integrity. Parents who refuse or omit health care on religious grounds should continue to be exempted from criminal and civil liability, and should not be ordered to consent to care contrary to their conscience.
The last issue you raise, regarding public health measures, seems to me fairly simple and separable from the other questions, and so I shall reply first to it. In some cases, a public health measure requires only general, rather than absolutely universal, participation to achieve its purpose, so that the parents of children who object on religious grounds could be exempted easily enough. Small pox vaccination may be an example, but I leave that to experts; if it is, I believe religiously based parental objections to vaccination should be respected insofar as respecting them is consistent with the program’s public health purpose. In other cases, such as the isolation of individuals afflicted with extremely contagious diseases, respecting parental objections would seriously impede an objectively reasonable public health measure. Then the parental objections should be overridden for the sake of the common good.
Turning to your other points, one must begin, as your question itself suggests, by limiting the field in which state intervention might be justified. At least two limitations seem to me necessary.
First, some public or publicly supported programs assume that adolescent children usually will engage in sexual intercourse. On this assumption they promote the use of condoms to impede sexually transmitted diseases (so-called safe sex), encourage the children to practice contraception, and/or offer them abortion services. Proponents argue that such programs are necessary either as public health measures or as health care for the children or both. However, complete abstinence from sexual intercourse is the only morally acceptable and fully effective way to deal with the problems these programs address. Moreover, neither contraception nor abortion services really are health care, since both interfere with normal reproductive functions and the latter destroys a new life. Therefore, parents rightly resist such programs, and children should not be involved without their parents’ consent, much less against their objections, whether grounded in religious beliefs or not.429
Second, whenever parents do not objectively have a grave duty to seek or accept health care for their children, their forgoing it on religious grounds certainly should be respected. The state would violate religious liberty in overriding religiously principled parental objections to a health care measure when it would ignore the refusal or neglect of the same measure by parents who objected to it on other grounds or were simply lazy. Just as people in general often have acceptable reasons of various sorts for omitting or rejecting health care, even when others consider it appropriate, so parents can have various valid reasons to forgo care for their children. Its probable safety and effectiveness may be questionable; it may be painful or otherwise repugnant to the child; it may be costly or otherwise burdensome to the family. Then too, neglecting appropriate care for one’s children’s health, as for one’s own, often falls short of being seriously irresponsible. Therefore, I think you first should define as clearly as possible the class of cases in which parents objectively have a grave duty to seek or accept health care for their children, so that you can limit public intervention to those cases and entirely exclude it in others.
I do not think it possible entirely to separate the substantive question—how far the state should respect parental religious convictions in relation to children’s health care—from the procedural question about the mechanism to use in dealing with cases. However, I shall try to respond to your question without being more specific than necessary about procedural matters. Realizing that you will obtain expert testimony about them, I offer my thoughts on them only as tentative suggestions.
I agree with you in approving of current policy in your state according to which adult Jehovah’s Witnesses, Christian Scientists, and others have the legal right to follow their religious convictions in avoiding or refusing forms of health care that most people consider appropriate and even obligatory. In accord with the principles underlying that policy, in cases of children nearing adulthood it would be wrong to ignore the difference between those who share their parents’ religious convictions and those who do not. Indeed, as soon as children are able to judge what is at stake, make a free self-commitment, and carry it out, their religious convictions have the same moral value and claim to be respected as those of adults. While parental convictions no doubt influence children, their religious commitments are no less genuine or worthy of respect on that account, as virtually all who share a child’s convictions acknowledge when the faithful child in a time of persecution lays down his or her life or makes lesser sacrifices.
Thus, legislation must set an age at which the child’s views will be taken into account. Reasonable people will differ, but twelve seems to me a good choice. By then, most children seem to understand life and death, and seem able to make a personal religious commitment.
In drafting legislation, you will have to consider situations of at least four kinds.
(1) Emergency cases in which care is required to preserve life or to protect against serious and lasting impairment of functioning or bodily integrity, and the child either is younger than twelve or, if older, desires care the parents are refusing, or not seeking, on religious grounds. In such cases, the care should be given.
(2) All cases in which a child older than twelve refuses health care on religious grounds. In such cases, it seems to me, the child’s position should be respected.
(3) Cases in which the care the parents are refusing or not seeking is not urgently required, and the child is younger than twelve. In such cases, it seems to me the presumption should favor the parents’ position, but it should be open to rebuttal by evidence that the care is necessary to forestall lasting and serious impairment of functioning or bodily integrity.
(4) Cases in which the proposed care is not urgently required, and the child older than twelve desires it while the parents oppose it. In such cases, it seems to me the presumption should favor the child’s position, but it should be open to rebuttal by evidence that the parents can reasonably refuse the care on nonreligious grounds.
If some private individual or entity, or some public entity or agent—such as the police or a social worker—believes parents are gravely failing in their duty to seek or accept some form of health care for a child, the first step, except in the most pressing emergencies, should be to call the parents’ attention to the provisions of the law, reason with them, and listen to what they have to say. If discussion does not resolve the matter, health care providers may proceed in emergency situations, but otherwise neither they nor others who think a child needs care should override parental judgment. Rather, they should present the case to a judge, who should apply the law’s provisions.
At times this approach would lead to overriding parents’ religiously based objections. Nevertheless, I think your welfare statutes’ existing exemption of such parents from civil and criminal liability for choosing prayer over medical care should be retained out of respect for religious liberty, since the exemption is compatible with appropriate state intervention. Thus, when adjudication leads to the judgment that health care should be given a child despite parental religious objections, the parents should not be held liable for forgoing or refusing care, or ordered to consent to it, since such holdings and orders would punish religiously committed parents for conforming to their beliefs or would attempt to compel them to violate their consciences. Instead, the court should take the matter out of the parents’ hands by directly ordering that the care be given or appointing a guardian empowered to make the necessary decisions.
429. Analogously, assisted suicide and voluntary euthanasia should not be legally available to anyone and especially not to minors. But if they are made legally available to competent adults, it surely would be an additional wrong to make them available to minors without parental consent.