All Commentary
Tuesday, June 1, 1993

Saving Sick Children from State Science

State officials attempt to ascribe a certainty to science and medicine that is impossible to achieve.

A. M. Rogers is an attorney and physicist in Ormond Beach, Florida.

The constitutional guarantee of religious freedom has often butted heads with the state. Though religious freedom was once the cornerstone of this country, its position has been slowly eroded. And the state has justified this erosion by deference to what the law has turned into another god—science. The area of children’s health and well-being has become one of the major battlegrounds of religious freedom.


As early as 1880, a state removed children from a parent’s care because the parent had not sought treatment from a medical doctor. In the case of In Heinemann’s Appeal, a Pennsylvania court found the father guilty of neglect of a child under the state statute because he had himself treated his wife and three other children who were sick with diphtheria.[1] At the time, diphtheria was sweeping through parts of Europe and the United States. And interestingly, the first effective diphtheria antitoxin was not developed until 1890, by a German bacteriologist. Other Pennsylvania cases in the early 1900s held parents guilty of manslaughter for the failure to provide their children with medical treatment despite religious objections.[2]

In almost every state today, whether the parents fail to seek medical treatment for a child based on the parents’ own secular perceptions of the best interest of the child or their most fervent religious beliefs, the state can intrude and the parents can be prosecuted criminally.

According to the American Law Reports: “It has been settled that a state, as parens patriae, may order medical treatment to save the life of a child notwithstanding the parents’ religious objections to the treatment.”[3]

In 1967 in Washington, a group of Jehovah’s Witnesses brought suit in opposition to a state statute that allowed the courts to order medical treatment, including blood transfusions, for children without parental consent. Jehovah’s Witnesses believe that the act of receiving blood or blood products precludes a person from resurrection and everlasting life after death. In the case of Jehovah’s Witnesses in the State of Washington et. al. v. Kings County Hospital Unit No. I, the plaintiffs argued against the statute on a variety of grounds. Among others, they argued that it denied their right to family privacy afforded them by the U.S. Constitution’s Ninth and Fourteenth amendments; that it denied them equal protection under the law since the state protects the religious liberty and parental rights of all other citizens and all other religions; that since the plaintiffs have a deep sense of responsibility as a family, they have the right to decide what medical treatment they will accept for their children; and, that the plaintiffs have been denied life, liberty, and property without due process of the law as guaranteed them by the Constitution’s Fifth Amendment and made applicable to the state by the Fourteenth Amendment.

The state’s highest court did not find any of these grounds persuasive. The court concluded that religious freedom does not include the freedom to expose children to ill health or death and that the state has the right to intervene in the name of health and welfare in these circumstances.[4]

The U.S. Supreme Court typically has refused to hear similar cases. The high courts in New Jersey and Illinois also overruled parents who are Jehovah’s Witnesses when they objected to their children having a court-ordered blood transfusion and both these cases were refused review by the Supreme Court.[5]

In a 1991 case in Massachusetts, a hospital sought authority to permit and administer a blood transfusion to an 8-year-old girl over her parents’ religious objections.

The McCauley parents had taken their daughter Elisha to the hospital for medical tests. The tests made an initial determination of leukemia, but the doctors wanted to do a bone marrow aspiration to determine with greater certainty whether Elisha did have leukemia. However, the doctors felt this procedure could not be performed safely unless they first increased Elisha’s critically low hematocrit reading by giving her a blood transfusion.

The Massachusetts State Supreme Court here found three interests at stake: the natural rights of the parents, the child’s interests, and the state’s interests. The court then concluded that the interests of the child and the interests of the state outweighed the parents’ rights to refuse medical treatment.[6]

In these cases, the Jehovah’s Witnesses were not opposed to medical treatment but only the blood transfusions. Similarly, in a 1972 Pennsylvania case, the mother, a Jehovah’s Witness, agreed to the surgery but refused to consent to the blood transfusion. No doctor would perform the surgery, however, without prior consent to a blood transfusion, should it become necessary. A hospital director initiated these court proceedings under a state statute authorizing court-ordered treatment for children being deprived of the proper or necessary medical or surgical care. The child here had survived polio but was now no longer able to walk because of both obesity and curvature of the spine. The lower court authorized surgery on the spine and the concomitant blood transfusion. But the higher court reversed this order noting that the boy’s condition was not life threatening.[7]

In other cases, the question of court-ordered medical treatments turns into cases of criminal prosecution.

In a 1985 Pennsylvania case, a couple was found guilty of involuntary manslaughter and endangering the welfare of a child in the death of their 2 1/2-year-old son. The parents had not sought any medical treatment outside their own religious treatment of their son, who eventually died of a cancerous tumor.[8]

In Indiana, a jury found a mother and father guilty of reckless homicide and child neglect in the death of their 9-month-old daughter. Allyson Bergmann became ill May 28, 1984, and her parents treated her with prayers, fasting, and invocations of scripture. Allyson died eleven days later from bacterial meningitis. Indiana, like Florida, recognizes a religious-belief exception to the statute pertaining to child neglect. The Bergmanns appealed their conviction on the basis of this exception, but the appellate judge let the conviction stand, arguing that the religious-belief defense was a question of fact for the jury to decide.[9]

In contrast, in 1990 a Minnesota judge ruled that a Christian Scientist couple could not be prosecuted for manslaughter in the death of a diabetic 11-year-old boy who was the wife’s natural son and the husband’s stepson. The judge here cited the state law on child neglect that excepted religious treatment.[10]

In a widely publicized recent Massachusetts case, David and Ginger Twitchell were found guilty of involuntary manslaughter in the 1990 death of their 2 1/2-year-old son Robyn. When Robyn became ill in 1986, his parents treated him solely with prayers. Five days later, he died of a bowel obstruction. Although the Twitchells could have received up to 20 years in prison, the judge placed them on ten years’ probation. They were also ordered to take their three remaining sons in for periodic medical checkups with a licensed pediatrician.[11]

In Florida, a Christian Scientist husband and wife received probation for an April 1989 conviction of third-degree murder in not providing medical treatment for their diabetic 7-year-old daughter. But recently the Florida Supreme Court reversed their conviction, stating that the religious treatment exception was too vague.[12]

This decision will likely affect the convictions of Charles and Merilee Myers, members of a religious sect that shuns doctors. They were given five years’ probation in 1991 for medical neglect of their 16-year-old son who did not die from what doctors diagnosed as a near-fatal heart tumor. “Adults are free to choose martyrdom,” the prosecuting attorney said. “Children cannot have it thrust upon them.”[13]

In August 1989, a Santa Rosa, California, jury acquitted two Christian Scientists of involuntary manslaughter in the meningitis death of their 15-month-old daughter, but convicted them of child endangerment. However, a Los Angeles judge in February 1990 acquitted another Christian Scientist couple of involuntary manslaughter for the meningitis death of their toddler son for insufficient evidence.[14]

Several other cases indicate that the trend in some states is to order medical treatment over a parent’s religious objections even where there is no life-threatening condition.

In the 1972 case of Re Karwath, an Iowa court held that a juvenile court acted properly when it ordered surgical removal of the tonsils and adenoids of three children in the state’s care despite the father’s religious objections. The father wanted the surgery to be a last resort after medication and chiropractics had been used. According to the medical testimony, the children were suffering from middle-ear infections that “could possibly lead to loss of hearing and rheumatic fever.”[15] The oldest child had missed several days of school because of his ear problems and concern over this inattendance weighed heavily in the court’s ruling.

In a 1972 New York case, a family court judge ordered doctors to perform what was characterized as “risky” surgery on a 15-year-old whose face and neck had been disfigured by a nonfatal, incurable disease. Here again the judge concluded that non-emergency surgery can be ordered over parental religious objections because of the state interest involved in compulsory education. The 15-year-old had not been attending school because of his disfigurement.[16]

In California, a court ordered corrective surgery for a 6-year-old boy born with clubfeet. The boy’s Laotian-born parents had opposed the surgery because they believed that the boy’s clubfeet was a curse inflicted on them by the spirits. The U.S. Supreme Court in 1990 refused to overturn the lower court’s ruling that authorized the surgery. Nonetheless, despite the court order, no hospital has agreed to perform the operation without parental consent.[17]

In Connecticut, in 1990, a 7-year-old girl born with rheumatoid arthritis was taken from her mother because her mother, a Chinese immigrant named Juliet Cheng, had been treating her daughter Shirley with acupuncture, herbal potions, and other non-Western medical treatments. The mother had initially sought help from an American doctor who prescribed aspirin for the then 11-month-old girl, but the mother said the treatment didn’t help. Doctors at Newington Children’s Hospital in Poughkeepsie, New York, told Cheng that Shirley needed surgery or she would never walk again. When Cheng refused, the hospital persuaded the State Department of Children and Youth Services to take custody of the child. After five months, however, the state Department relinquished custody to the mother after two of the three doctors on the court-approved panel had examined the girl and recommended against the surgery.[18]

The State’s Position

The notion parens patriae is the fundamental principle behind this case law. It means “father of the country” and it denotes the state’s role as a sovereign guardian over “persons under disability.”[19] It ultimately places the power in the state government to determine to what extent it will act to protect the interests of “its” children. Thus, the state is always the backstop and referee behind every parent. The state is the one that prescribes a legal duty to those charged with the care of a child to provide that child with medical attention. The parents are prosecuted for breaching this duty, and religious freedom is involved only parenthetically as a possible argument against state intrusion.

“Acting to guard the general interest in the youth’s well-being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.”[20]

But the million-dollar question is what course of treatment will guarantee a child’s well-being?

Medical testimony is crucial in these cases. The child’s death has to be seen as the result of the parents’ failure to get medical attention. Doctors cite statistics on the child’s chances of survival based on the stage the disease is in when treatment is begun. For example, in the Pennsylvania Barnhart case, a doctor testified that the child’s chance of surviving the cancerous tumor was 95 percent if the cancer was discovered at an early stage, 85 percent if the tumor had spread locally, and so forth.

Yet, even if true, what do these statistics mean? The 5 percent who don’t survive even when the cancer is discovered at an early stage die for a variety of reasons. The treatment may fail to cure the cancer or the treatment itself may kill them. Who can tell whether the Barnhart child falls in the 95 percent or the 5 percent? The state certainly can’t know.

The scientifically naive believe that there is truth in science. They see medicine as equivalent to mathematics where 2 plus 2 always equals 4 and, therefore, when a doctor diagnoses a heart tumor as “fatal,” it will cause death 100 percent of the time. But medicine is not a logical system; it exists in the empirical world of complex human organisms. When the court officials order that the child be treated and the child dies, hasn’t the child in this situation also had “martyrdom” thrust upon him?

Science, particularly medicine, is experimental, which means no particular result is predictable with 100 percent accuracy. The U.S. Government Office of Technology Assessment reports that 80 to 90 percent of doctors’ treatment methods are not based on scientifically proven principles and, consequently, the results are not guaranteed reproducible.[21] Childhood vaccinations that were supposed to wipe out illnesses are themselves responsible for causing severe health problems and even death in a small minority of children. According to the California Department of Health Services, the risk of dying or developing brain damage from the pertussis vaccine is estimated to be one in 100,000, and the chance of developing paralysis from the polio vaccine is one in 500,000.[22]

There are also other complicating factors. Studies show the high risk involved in medical treatment, for example, of misdiagnosis, and that one out of five people entering a hospital leaves with a condition he didn’t have when he entered.[23]

David and Ginger Twitchell, the Massachusetts Christian Scientists convicted of involuntary manslaughter, had thought their son was sick with the flu. He had felt well enough to go outside and play the day before he died. After the trial was over, David Twitchell told reporters that he and his wife “will try to obey the judge’s instructions,” but he added that he was “having trouble figuring out whose judgment is going to decide exactly when a problem is serious and not just a cold.” He also stated that he didn’t believe a regular checkup would have saved his son’s life.[24]

In every one of these cases, the state acts under the mistaken notion that it can accomplish what it sets out to accomplish: the child’s well-being. Further, if parents are to be criminally liable, then the government, as parens patriae, when it fails to cure the child, should also be liable to criminal prosecution. But the truth is that in every case the parents are being held liable because their chosen course of treatment failed to cure their children. It was the illness itself—whether bowel obstruction, meningitis, cancer, diabetes, or whatever—that killed the child. Under the government’s own logic, state officials who mandate that modern medicine be used should also be held guilty when modern medicine fails.

A different standard is being applied to the parents than to the state in these cases that involve a failure to cure. These are not cases of medical malpractice or parental abuse where the doctors or parents contribute to causing the child’s death by an act of poisoning, starvation, administration of the wrong medication, or some other kind of physical abuse. When the parents do their very best for their children and the children die, the parents are held responsible for their failure to cure the child. But when the doctors do their very best for a child and the child dies, the doctors are not held responsible for their failure to cure the child. This results in an unfair, inequitable treatment of the parents.

A Fair and Equitable Standard

To apply the state laws to everyone equally and to eliminate this unfair double standard, the legal system has two choices. The system can prosecute parents, government officials, and doctors alike when their mandated course of treatment fails to cure the child. The doctor who follows the medically accepted treatment of chemotherapy for cancer and cures his patient won’t be prosecuted. The doctor who follows the same course of treatment but fails to cure his patient will be prosecuted as well as the government official who authorized the treatment. Of course, if officials and doctors are more successful at curing cancer, meningitis, and other diseases than parents are, the percentage of doctors and officials being prosecuted would be less than the percentage of parents being prosecuted.

The other option, which is supported by the Constitution’s First Amendment, is for the members of the legal community to realize that even though science has become enormously successful, disease and other maladies can never be perfectly controlled by any judge, doctor, parent, or legislature. Parents should be accorded the same immunity from prosecution when their cures fail as doctors are in the same circumstances. And, then, parents will be free to pursue the course of treatment they choose without state intrusion.

The attitude of state judicial and legislative systems is threatening the preservation of freedom. State officials attempt to ascribe a certainty to science and medicine that simply is impossible to achieve. By science’s nature, there can be no certainty for treating a particular sick child. It is time to eliminate the double standard for parents and doctors.

  1.   In Heinemann’s Appeal, 96 Pa. 112 (1880).
  2.   52 A.L.R. 3rd 1118.
  3.   Ibid., p. 1119.
  4.   Jehovah’s Witnesses in the State of Washington et al. v. Kings County Hospital Unit No. 1,278 F.Supp. 488 (W.D. Washington, 1967).
  5.   State v. Perricone, 37 N.J. 463, cert. denied 371 U.S. 890 (1961); People ex. rel. Wallace v. Labranz, 411 Ill. 618, cert. denied 344 U.S. 824 (1952).
  6.   Matter of McCauley, 565 N.E. 2d 411 (1991).
  7.   Re Green, 448 Pa. 338 (1972).
  8.   Com. v. Barnhart, 497 A.2d 616 (1985).
  9.   Bergmann v. State 486 N.E. 2d 652 (1985).
  10.   The Orlando Sentinel, February 17, 1990, A-20.
  11.   The Orlando Sentinel, July 7, 1990, A-14.
  12.   The Orlando Sentinel, September 6, 1992, B-6.
  13.   The Daytona Beach News Journal, July 22, 1991, B-3.
  14.   The Daytona Beach News Journal, April 18, 1990, A-2.
  15.   In Re Karwath, 199 N.W.2d 147 (1972, Iowa).
  16.   Re Sampson, 29 N.Y.2d 900 (1972).
  17.   The Orlando Sentinel, December 16, 1990, A-19.
  18.   Ibid.
  19.   Black’s Law Dictionary, revised 4th Ed. (West Publishing, 1968), p. 1269.
  20.   Com. v. Barnhart, 497 A.2d 616, 622 (1985).
  21.   Charles B. Inlander, Take This Book to the Hospital With You (New York: Pantheon Books, 1991), p. 111.
  22.   The Orlando Sentinel, March 5, 1991, G-4.
  23.   Inlander, p. iv.
  24.   The Orlando Sentinel, July 7, 1990, A-14.