Child Rights and Remedies

By Robert C. Fellmeth | Go to book overview

CHAPTER FIVE
Health, Medical Care,
and Safety

A. CHILD RIGHT TO TREATMENT

Public policy obligating parents to medically care for their children is reflected in the common civil requirement to provide “necessaries.” Failure to so provide is a basis for juvenile dependency court termination of parental rights. In addition, criminal liability for involuntary manslaughter may lie where death is the result of gross negligence. Some states have a “poverty exemption” to civil neglect charges where parents are not financially able to provide medical care or other necessities for their children.1 However, the most extensive source of asserted parental exemption rests with the bona fide religious beliefs of parents in faith healing. The courts have ruled consistently that first amendment religious or other parental constitutional rights do not cover allowing harm to befall a child. In one early leading case, the U.S. Supreme Court upheld mandatory vaccination laws against a parental religious challenge.2 In perhaps the leading state case, Mississippi held in 1979 that “innocent children, too young to decide for themselves” should not be denied the protection against crippling or death that immunization provides because of a religious belief adhered to by a parent.3

However, over the past thirty years partial, often confusing religious exemption statutes have been enacted in all fifty states. They tend not to cover diagnosis and vaccination, but rather medical treatment for existing and known illness. In possibly applicable dictum, the U.S. Supreme Court held in Prince v. Massachusetts that a Jehovah's Witness could not compel her daughter to sell literature on the streets in violation of child labor laws,4 writing: “The right to practice religion freely does not include liberty to expose the community or 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 that they are free, in identical circumstances, to make martyrs of their children before they nave reached the age of full and legal discretion when they can make that choice for themselves.5

However, notwithstanding this Prince reference, since the 1970s most states have enacted some religious exemprion to civil dependency or neglect charges,6 and/or a religious defense to a criminal charge involving the care of their children.7 These exemptions permit parents to pray and otherwise use faith healing to address a child's illness. Most are not intended to exempt from civil or criminal liability a failure to medically treat a child where his or her life is in danger; however their ambiguous wording has created some effective barrier to criminal prosecution—even in relatively egregious failures to treat.8

One source has counted 172 deaths of U.S. children from 1975 to 1995 related to parental religious refusals to medically treat. Only 43 criminal prosecutions followed those deaths, with seven more prosecutions initiated after 1995.

-240-

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