Victory in Massachusetts

From CHILD (Children's Healthcare Is a Legal Duty)
Newsletter Number 1, 1994. Writer and editor Rita Swan.
© 1994 CHILD, Inc. Reprinted with permission.

On December 28, 1993, Governor William Weld, R-Massachusetts, signed S.219 into law. The bill made child abuse a crime and repealed a religious exemption from the criminal code. Massachusetts thereby became the third state in the nation to remove all religious exemptions from a duty to provide medical care to a sick child. South Dakota repealed such exemptions in 1990 and Hawaii in 1992.

The victory in Massachusetts is an especially significant achievement in that the international headquarters of the Christian Science church is located there. It was the culmination of a five-year struggle.

1986: Repeal of religious exemption sought

The project began as the vision of one Boston-area CHILD member, Ken Casanova. In 1986 Ken read about a toddler named Robyn Twitchell who died in suburban Boston of a bowel obstruction because his Christian Science parents did not get him medical care.

Ken also read about a religious exemption statute in Massachusetts that the Christian Science church said gave the parents the right to withhold medical care. Ken called his Representative, John McDonaugh, and asked him to work for the repeal of this religious exemption.

Origins of religious exemption: 1967 - 1971

Massachusetts passed its religious exemption four years after a Christian Science mother in Barnstable was convicted of manslaughter in 1967. Dorothy Sheridan allowed her five-year-old daughter, Lisa, to die of pneumonia without medical care. The child was sick for three weeks, and an autopsy found more than a quart of pus in one of her lungs. The case is described in a book entitled The Crime of Dorothy Sheridan by Leo Damore, which is currently available in a Dell paperback.

The Christian Science church pushed a religious exemption through the legislature in 1971. At the time, church officials described it as a very small thing they were asking for, an exemption to a misdemeanor that carried a $200 fine. Their presentation to legislators did not mention the Sheridan case. But once the law was passed, the church claimed it was a response to the case and evidenced the legislature's intent to prevent prosecutions of Christian Scientists. (See John Kennedy, "Key to manslaughter case is 1971 law change," Boston Globe, 27 April 1988, and Legal Rights and Obligations of Christian Scientists in Massachusetts, 1983 edition, p.19.)

The law the church obtained in 1971 was an ambiguous exemption to a neglect charge. Although charge was only a misdemeanor, the church promoted the exemption as a defense to manslaughter.

1988: Bill finally filed--support solicited

In the fall of 1988 Representative McDonaugh recontacted Ken and was ready to file a bill. This bill, filed late in 1988, did not repeal the exemption, but added an amendment requiring parents to provide medical care when "necessary to protect the child from suffering serious physical harm or illness."

McDonaugh asked Ken to build support for the bill. Ken spoke with the Massachusetts Council of Churches, the Massachusetts Public Health Association, the Massachusetts Office for Children, the Department of Social Services, the Department of Public Health, the Massachusetts Society for the Prevention of Cruelty to Children, the Catholic church, the Children's Trust Fund, the Massachusetts Association of Social Workers, and the Massachusetts Bar Association. All of these organizations declined to endorse the bill when Ken first asked them for their support.

Ken obtained a statement by the American Academy of Pediatrics (AAP) calling for the repeal of religious exemptions. He met with Dr. Michael Grodin, Dr. Jonathan Caine, and other Boston-area pediatricians. The Massachusetts Chapter of the AAP endorsed the bill, and Grodin helped get an endorsement from the American Society for Law and Medicine. Caine lobbied for the bill throughout the long struggle. The Massachusetts Medical Society also endorsed the bill that first year.

Ken also called upon Jetta Bernier, the Director of the Massachusetts Committee for Children and Youth. Jetta immediately gave her support for repealing the exemption. She became one of the strongest and most skillful players in the long fight for repeal.

1989: Legislative opposition

In 1989 the Judiciary Committee held a hearing on the McDonaugh bill. Chairman Salvatore DiMasi showed Ken a pile of over 100 letters from the Christian Scientists and told Ken to get an equal number for the bill. DiMasi did his best to keep the bill from getting out of committee though he became one of our supporters in later years. Our legislative allies kept pushing for a vote. They finally got the committee to vote 9 to 5 for the bill after it was too late to move the bill any further.

Also in 1989 a criminal child abuse bill was filed. One section of it required parents to provide medical care to children. The Christian Science church went to the Criminal Justice Committee and got them to add a religious exemption to the bill. The bill went to the floor, but Ken alerted legislators who got the bill recommitted to the committee where it died.

Advocates organize to plan strategy

That same year Jetta Bernier began holding regular meetings in her office with child advocates to plan a strategy against the exemption.

Ed Brennan, the lobbyist for the AAP Chapter, was one of the most helpful participants at the meetings because he always had accurate inside knowledge on the legislature and was willing to do the one-on-one contact work that it takes to compete with the Christian Science church.

1990: Obfuscation yields gridlock

In 1990 the bill changing the religious exemption went to the Health Committee, which was not favorable to it. The bill was sent to the House counsel, who said that the legal force of the religious exemption was questionable. Late in 1986, the legislature had repealed the neglect law to which the religious exemption related. The religious exemption had been left in the code, but it no longer related to a specific crime. It was an exemption to nothing.

Also in 1990 the criminal child abuse bill was presented to the Criminal Justice Committee again. At the request of the Christian Science church, the committee dropped the entire neglect portion from the bill. The committee did not, however, grant the church's request for a religious exemption to the abuse part of the bill.

When the bill got to the floor, the church tried to add language from Colorado, which allows parents to withhold medical care from sick children if they have prayer treatments that are paid for by insurance companies and recognized by the Internal Revenue Service as a medical care expense. (Only Christian Science prayers meet these criteria.)

In 1990 both the pediatricians and the Massachusetts Committee on Children and Youth opposed making child abuse a felony. Both the child abuse bill and the bill restricting the religious exemption died that year.

1991: Coalition seeks outright repeal

In 1991 a coalition to work for the repeal of the religious exemptions was formalized. More than two dozen organizations endorsed repeal and sent representatives to the meetings in Jetta's office. They did not think that outright repeal was politically possible, but they did not want to amend the existing religious exemption and thereby give it more status. After a long debate, they finally voted to seek straight repeal.

Ken Casanova wrote the coalition's major position paper, "Death by Religious Exemption," a 46-page statement.

Massachusetts Coalition to Repeal, Religious Exemptions to Child Abuse Laws:

American Jewish Congress
American Pseudo Obstruction and Hirschprungs Disease Society
Boston University School of Public Health
Brightside for Families and Children
Cambridge Family and Children's Services
Children's Advocacy Network
Children's Friend and Family Service Society
Communities for People Inc.
Concord-Assabet Adolescent Services
Harbor Schools (Newbury)
Humanist, Atheist and Ethical Organizations of Massachusetts
Italian Home for Children (Jamaica Plain)
Jewish Big Brother and Big Sister Association of Greater Boston
Jewish Family and Children's Service (Boston)
KEY, Inc. (Framingham)
Legislative Children's Caucus
Massachusetts Adoption Resource Exchange (MARE)
Massachusetts Chapter of the American Academy of Pediatrics
Massachusetts Child Welfare League of America, Executive Group
Massachusetts Civil Liberties Union
Massachusetts Committee for Children and Youth
Massachusetts District Attorneys Association
Massachusetts Society for the Prevention of Cruelty to Children
Massachusetts Medical Society
New England Home for Little Wanderers (Boston)
Office for Children, State Advisory Council
Parents Anonymous of Massachusetts

Intervention opposed

The Judiciary Committee held meetings on the repeal bill in 1991. Dean Kelly of the National Council of Churches testified against it, but the Council has no official position on the issue. Kelly argued that those believing in faith healing should be allowed to withhold medical care for children because "medical science has its failures too" and because poverty, substance abuse, and child pornography are "more widespread perils."

In his conclusion, though, Kelly conceded that in cases "involving contagion," the "public health and safety may require civil intervention."

Like several legislators that year, he was willing for Christian Science children to die for their parents' beliefs and supported state intervention only when a child's illness might jeopardize public health.

Federal judge Thomas Griesa also testified for the Christian Science church. Although Griesa is a dissident Christian Scientist who has spearheaded a lawsuit against church officers, he fully supports the church's "right" to withhold medical care from children.

Stalemate: no criminal child abuse law

Massachusetts was one of only two states in the country without a criminal child abuse law. However, nearly all the child advocacy groups in Massachusetts opposed the child abuse bill.

Ken proposed a conference with the district attorneys, who wanted the bill, and the advocacy groups opposed to it. Their first meeting was held in June of 1991. After months of dialogue and negotiation, deep divisions remained. Jetta Bernier's Committee on Children and Youth and the state chapter of the American Academy of Pediatrics werer willing to support a criminal child abuse bill, but other organizations were not.

Two child abuse bills were introduced. Representative Shannon O'Brien had allowed a religious exemption to be added to her bill. Representative Brett introduced a bill which did not deal with criminal neglect, but did make child abuse and the permitting of child abuse a crime.

Bernier urged the Criminal Justice Committee to put the O'Brien bill into a study. All fall she and pediatricians tried to negotiate improvements to the Brett bill.

Under heavy pressure from the Christian Science church, the House Judiciary Committee agreed that the church would have the chance to add a religious exemption to the abuse bill on the floor of the House. If the church was not successful, or if the abuse bill did not come to the floor by midautumn, the Judiciary Committee would allow the repeal bill to come out for a vote.

The abuse bill did not come out of committee in 1991. Weary of the stalemate, Representative Douglas Stoddart, R-Natick, brought the repeal bill to the House floor and delivered his maiden speech urging its passage. Stoddart was booed by fellow legislators, who voted to send the bill back to committee.

1992: Coalition gives up repeal effort

In 1992, the coalition gave up on their effort to repeal the religious exemption and focused on working for a criminal child abuse bill. They thought legislators would rather vote "for" something than "against" an existing statute.

They noticed that, even though the church had gotten the neglect portion of the bill removed, the last paraagraph prohibited parents from "permitting" a child to suffer serious physical injury. They reasoned that the law would apply to those who withheld medical care on religious grounds.

Many members of the coalition quit. They did not like the child abuse bill and would not even help stop the Christian Science church from adding a religious exemption to it.

Battle to kill amendment

The bill passed the House without objection from the Christian Science church. But in the Senate, the church quickly derailed the bill. Senator Linda Melconian, D-Springfield, added an amendment on the floor with only a handful of Senators present. It stated that "any person who, having care and custody of a child, provides such child with health care by treatment solely by spiritual means through prayer in accordance with a recognized religious method of healing, shall not be considered to have caused or permitted such child to suffer any physical injury or to have committed a criminal offense for the sole reason he did not provide medical treatment for such child. . . ."

The amendment put the coalition in a defensive posture. Ken had to prepare more fact sheets urging legislators to defeat it, spend days trudging around the Statehouse, and get others to write legislators.

In November Ken and our other allies got the bill reconsidered by a 16 to 15 floor vote.

New opposition from domestic violence groups

Late in the fall, to our dismay, domestic violence groups announced their opposition to the child abuse bill. They objected to a criminal penalty for caretakers who "negligently [permit] serious physical injury to a child." They argued that some women are so terrorized by their partners that they cannot prevent abuse of their children.

John Kiernan, who had prosecuted the Twitchells, pointed out that the crime of negligence presumes a capacity to act. If a woman was psychologically unable to protect her child in a violent household, she already had a defense. She could offer evidence of her state of mind to the court.

But the domestic violence groups insisted that the penalty for permitting serious physical injury should be dropped. In other words, every parent should have the right to sit around and let his or her child be beaten to a pulp.

"No excuses for child abuse"

Bella English wrote a powerful column in the Boston Globe entitled, "No Excuses for Child Abuse" attacking the "Christian Science exemption" and the "battered women's syndrome exemption." It generated many angry phone calls to the Senate.

However, the district attorneys voted to support a willful and wanton standard for the permitting of child abuse. This meant that people having care and custody of a child could permit the child to suffer substantial bodily injury from abuse unless they maliciously intended for the child to be harmed.

This surprising development seemed to pull the rug from Bernier and Brennan, who had agreed to support the criminal child abuse bill wanted by teh prosecutors after months of negotiations.

Prosecutors convinced to change position

John Kiernan was especially alarmed. Kiernan pointed out four different standards that prosecutors can be held to in proving charges: negligence, gross negligence, wanton and reckless conduct, and willfulness. Negligence is the lowest, and willfulness is the highest. Kiernan said Massachusetts has a negligence standard for drunken drivers and ought to have a negligence standard for those who allow child abuse.

Finally, Kiernan got the district attorneys to change the standard to "wanton and reckless." The domestic violence groups also agreed to this compromise standard.

After all that work, the bill died once again in 1992.

1993: Governor speaks out--decisive House vote

In the spring of 1993, Governor William Weld-R held a press conference urging the legislature to pass a child abuse bill. He also stated his opposition to religious exemptions.

Shortly afterwards, the bill was put out on the House floor. After extensive debate the Massachusetts House voted 99 to 56 to reject the religious exemption amendment proposed by the Christian Science church and then passed the bill by 112 to 37.

The bill then went to the Steering and Policy Committee. "Willful" was added to the "infliction of abuse" prohibited by the bill, perhaps at the request of the Massachusetts Civil Liberties Union and some child advocates.

Tougher compromise bill negotiated

John Kiernan again went to work and got the district attorneys mobilized in opposition to a willfulness standard.

Some defense attorneys and legislators thought the abuse bill was too harsh and brought forward a different bill.

Elected to the Senate in 1992, Shannon O'Brien was a skillful, tireless, and dedicated negotiator. She lowered the penalties on her abuse bill and changed "infliction" to "assault and battery." By those concessions, she was able to keep out a willfulness standard.

Supreme Court ruling on religious exemption

In August the Massachusetts Supreme Court ruling on the Twitchell case established that the extant religious exemption did not provide a defense for manslaughter. CHILD members and other pointed out that, sincer there was not a religious exemption when the child died, there should not be an exemption in cases of serious injury to children either.

On September 15, 1993, the coalition once again met in Jetta's office. O'Brien and Senator Robert Antonioni attended. They promised the coalition that they would try not only to get the abuse bill passed without a religious exemption, but to repeal the existing religious exemption. They planned to gather the votes for repeal quietly and then introduce a repeal amendment on the floor without the Christian Science church's knowledge.

Church renews fight for criminal exemption

The week before the vote the church pulled out all stops to try to get the Senate to add a religious exemption to the child abuse bill. More than a hundred Christian Scientists packed one Senator 's office imploring him to support an exemption. More than 35 came to Senator Marian Walsh's office.

October 1993: Senate acts

On October 18, the criminal child abuse bill came out on the Senate floor. A religious exemption amendment was introduced. There were 2 yeses and 4 or 5 no's. The Senate chairman announced that the amendment was defeated. The church's spokesmen did not ask for a roll call. It appeared that they did not want their support for the church to go on record.

Then a senator introduced another version of a child abuse bill wanted by defense attorneys, but he could not get even a second for this bill.

Next the chairman called for a vote on O'Brien's abuse bill with its reduced penalty compromise. Nobody voted, but he said the aye's had it.

Old religious exemption also repealed

Then O'Brien rose and said there was one more thing that needed to be taken care of on the bill. She introduced a motion to repeal chapter 273, section 1 (the religious exemption). There was no discussion. The chairman called for a vote. Nobody voted, but Antonioni said the aye's had it.

O'Brien introduced a motion for reconsideration of her bill. There was no discussion. The chairman called for a vote. Nobody voted, but this time he said the motion was defeated.

O'Brien's parliamentary maneuver prevented anyone else from calling for reconsideration later.

Leadership united for repeal

Both the House and Senate leadership supported repeal of the exemption, so the conference committee was dominated by our supporters. The child abuse bill including the repeal amendment was approved by the conference committee, returned to both houses for another vote, and then sent to the Governor's desk.

On Tuesday, December 7, the Massachusetts District Attorneys Association held one of their regular meetings with the Governor. They expressed their pleasure that the religious exemption had been repealed by the legislature.

Governor filp-flops

Governor Weld gave them no reason to believe he objected to repeal, but on Friday, December 10, he returned the child abuse bill to the legislature and asked them to restore the religious exemption.

Weld pointed out that the Massachusetts Supreme Court had recently ruled in the Twitchell case that the religious exemption was not a defense to manslaughter. Weld wrote that repeal of the exemption was therefore "unnecessary. However, this provision may afford protection in civil proceedings, and I believe it is fair for the law to continue to afford such protection."

We and other advocates were shocked. Prosecutors all over the state faxed protest letters to the Governor. The American Academy of Pediatrics wrote a forceful letter, reminding Weld that he had publicly supported repeal of the exemptions a few months earlier. There was speculation that Christian Scientists at the national level of the Republican party had persuaded Weld to do this because of his aspirations for national office.

The Christian Science Monitor speaks

The church was ready with a long column and a lead editorial in the December 13 Christian Science Monitor. The editorial, entitled "Prayer is not Criminal," tried to educate society:

It needs to be better understood that for Christian Scientists, prayer is not just instead of treatment, or in support of treatment: Prayer is treatment. The decision to rely on prayer instead of "shunning conventional medicine," as the familiar wire-service phrase now has it, is a positive one, not a negative one. And in the case of even young children, it is a decision generally made with their active consultation to a degree not widely appreciated.

When Christian Scientists endure an apparent failure of their methods, as in some recent publicized cases, they face pressure to pull them into the general net of medical, insurance, and legal practices. . . .

We appreciate Governor Weld's action discerning among the competing interests and we are confident that the legislative, executive, and judicial system can discriminate between criminal and spiritual matters.

Message of legislative intent

Senator Shannon O'Brien charged that Weld was sending Christian Science parents "the wrong message" by proposing restoration of the exemption. Other observers pointed out that restoration of the religious exemption under such circumstances would be the worst kind of legislative history. If another death of a Christian Science child was prosecuted, the court might decide that the legislature consciously chose to have a religious defense to a serious crime.

The Boston Globe speaks

Bella English wrote another powerful column in The Boston Globe. Entitled "Weld Flip-Flop may risk lives," the editorial suggested that Weld had "caved in to some heavy-duty lobbying by high-level Republican officials in the Christian Science Church."

English continued:

Weld has called his version of the bill "a minor amendment," but it's hardly minor to all those children who may suffer needless pain, permanent impairment, and even death because Mom and Dad wouldn't call a doctor.

English interviewed Doug Lundman, an architect who now lives in the Boston area and whose son died of diabetes because his mother was a Christian Scientist and withheld medical care. His son Ian "was just a normal kid," Doug said. "He wanted to live. He was interested in playing games, not some abstract religion. If something was wrong, he wanted someone to fix it."

English asked, "Is [Weld] really willing to kill a child abuse bill that has been painfully hammered out over four years?"

"The legislature ought to send this bill back promptly, as is. And Weld, a father of five, ought to sign it," she concluded.

House and Senate stand firm--Governor signs

Both the House and Senate passed the bill once again with the repeal of the religious exemption and returned it to the Governor. On December 28, 1993, Weld signed the bill into law, but hinted that he might propose a new religious exemption in the future.

Church silent

On December 30, The Christian Science Monitor briefly noted the signing and added, "There was no comment from The First Church of Christ, Scientist, in Boston, which opposed the bill because it removes the accommodation for spiriutal healing." The church also declined comment in August about the Massachsuetts Supreme Court's ruling that the then existing exemption was not a defense to manslaughter.

Rep. Byron Rushing, who has the church's headquarters in his district, has introduced a bill with a new religious exemption this year, but we do not think it will get very far. Massachusetts legislators do not want to deal with this issue again. And we have learned through the years that it is a hundred times easier to kill a bill than to pass one.

We hope that this victory in Massachusetts will be an incentive for other state legislatures. If the home state of the Christian Science church can remove all religious exemptions from a duty of care for a sick child, other states can do it too.

Taken in part from The Boston Globe, 30 Nov. 1992 and 15 Dec. 1993, and The Christian Science Monitor, 13 and 30 Dec. 1993.

CHILD (Children's Healthcare Is a Legal Duty), Inc.
Box 2604, Sioux City, IA 51106
Phone: 712-948-3500
http://www.childrenshealthcare.org/