I. HHS Policy on State Religious Exemptions

Civil Religious Exemptions Forced on States in 1974 by Department of Health, Education & Welfare (HEW)

Religious exemptions from state child abuse and neglect laws are due, in large part, to federal regulations adopted subsequent to congressional enactment in 1974 of the "Child Abuse Prevention and Treatment Act" which established federal standards and financial support for implementing state child abuse prevention, reporting, and treatment programs. The 1974 regulations, as a result of vigorous lobbying by the Christian Science Church and the absence of an organized child advocacy voice, required states to adopt civil religious exemptions in order to qualify for federal monies. In 1974, only 11 states had religious exemptions; following the HEW mandate 34 states adopted the exemptions. Moreover, several states, as a result of the federal mandate and lobbying by the Christian Science Church adopted exemptions in their criminal codes.

There can be no question that as a result of the 1974 regulations, the federal government effectively implemented a state-sanctioned form of child abuse. State religious exemptions, both in the civil and criminal codes, bear some responsibility for the needless and tragic deaths of children from many medically curable illnesses. (See Appendix: Cases of Childhood Deaths.)

The exemptions appear to sanction parental refusal to provide necessary medical care and to permit exclusive reliance on spiritual/faith-healing even in cases of serious illness. The exemptions also are perceived to block state intervention to provide necessary medical treatment. Since 1975, partially as a result of the exemptions, there have been 165 known deaths of children after medical care was withheld on religious grounds. Of these children, eleven died of untreated diabetes and fifteen died of meningitis; others died of readily treatable illnesses, including pneumonia, ruptured appendices, diphtheria, bowel obstructions and measles. These children suffered horrible, painful and needless deaths, not only because of parental actions, but also because of the Department's demand that states grant a small group of parents an exemption from the legal duty of all other parents to provide their children with necessary care.

By what authority did the Department demand of the states the religious exemptions which have had such tragic consequences for children and their families? The Congressional enabling legislations makes no mention of religious exemptions nor authorizes the Department to involve itself, in any way, with the issue. The entire problem originated with the Department's discretionary rule-making in 1974.

Religious Exemptions Are Most Likely Unconstitutional

By depriving a minority group of children the right to basic protections of life and health afforded to all other children, the Department's policy on its face, is an unconstitutional deprivation of equal protection under the 14th Amendment.

In addition, a number of state courts have indicated that granting privileges to "recognized churches" probably violates the 1st Amendment's prohibition of an establishment of religion, that is, certain religious denominations cannot be granted privileges not afforded to other denominations or religions. Dali v. Board of Education, 358 Mass. 753, 757-759 (1971). Davis v. State, 451 A. 2d 107, 112-113 (MD. 1982). State v. McKown, 475 N.W.2d 63, 69 n.9 (Minn. 1991). People v. Lybarger, 700 P.2d at 910, 912 (Colo. 1985). Ohio v. Miskimens, 490 N.E.2d at 933-935. Newmark v. Williams, 588 A.2d 1108, 1112-1113 n.7 (Del. Supr. 1991).

It is also absolutely clear that the free exercise clause of the 1st Amendment does not permit, for religious reasons, the deprivation of necessary medical care to a child. In 1944, in Prince v. Massachusetts 321 U.S. 158 (1944), the U.S. Supreme Court ruled:

The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full legal discretion when they can make that choice for themselves.

United States courts have traditionally considered the lives and health of children to be a "compelling state interest." The free exercise clause is not absolute: it is reasonably and necessarily limited so as not to confer a parental right to abuse and jeopardize children in the name of religion.

In 1972, the United States Supreme Court ruled:

The power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince If it appears that parental decisions will jeopardize the health or safety of the child….

(Wisconsin v. Yoder, 406 U.S. 233-234).

 

1983 Regulations Provide For State Option on Exemptions

In 1983 HHS, partially recognizing the disastrous consequences of its actions, changed its regulations on religious exemptions. The Department removed the requirement that states maintain the exemptions, providing instead for a policy of state option: the states could choose whether or not to adopt exemptions. However, the damage had already been done since by then virtually every state had adopted religious exemptions.

In the absence of similar federal pressures which had been brought to bear to adopt the exemptions, most states, subsequent to the 1983 change, did not repeal the exemptions.

Current HHS "Reform" Initiative on Exemptions

In the past 3 years, HHS has undertaken a major "reform" initiative to bring the many state exemptions, which vary markedly in their legal scope and consequences, into compliance with a uniform, national regulatory standard. The following is a summary of the regulatory standard on religious exemptions that HHS is currently attempting to implement with the states through a variety of means:

1. Parents may be exempted on religious grounds from a civil finding of child neglect; parents are absolved from effective civil responsibility for protecting their children from serious medical neglect.
   
   
2. The exemptions may not be interpreted by the states to impede the necessary reporting, investigation, and treatment of parental, religiously-based medical neglect if the neglect has the consequence of harm or threatened harm to the child. There is to be one, uniform standard for the treatment, investigation and reporting of medical neglect for all children despite a parent's religious belief.
   
   
3. Religious exemptions may not equate spiritual healing with medical care or adequate health care.
   
   
4. Religious exemptions in state criminal codes are not subject to review unless the statute has limiting effects on a child's right of access to court-ordered medical care.
   
   
5. Religious exemptions to abuse are to be held in non-compliance, unless the abuse is interpreted as religious medical neglect.

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Table of Contents:

1. HHS Policy on State Religious Exemptions
   
   
2. 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
   
   
3. Civil Exemptions Undermine Parental Legal Responsibility
   Despite Denials by HHS, Civil Exemptions Undermine Parental Legal Responsibility to Provide Care
   
   
4. 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
   
   
5. Conclusion

Appendix: Cases of Childhood Deaths Due to Parental Religious Objection to Necessary Medical Care