The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Adult Daughter Who Relies on "Faith-Based Medicine" Loses Guardianship Over Intellectually Disabled Mother

The Alaska Supreme Court, applying the RFRA-like state constitutional regime, concludes that removing the daughter as guardian is necessary to serve a compelling government interest.


From yesterday's unanimous Alaska Supreme Court decision in In re Tiffany O., written by Chief Justice Joel Bolger:

A daughter was appointed as guardian for her mother, a woman in her 60s who suffers from epilepsy [and is intellectually disabled]. The daughter relied on faith-based medicine to care for her mother, electing to, in one instance, pray over her mother after she became nonresponsive instead of calling emergency services. The superior court ultimately removed the daughter as guardian, finding that her behavior and "intractable belief system" caused her to deprive her mother of appropriate services and care.

We conclude that the superior court did not abuse its discretion when it removed the daughter as her mother's guardian. We also conclude that removing the daughter as guardian did not violate the Alaska Constitution's free exercise clause because the State possessed a compelling interest in preventing harm to the mother….

The Alaska Supreme Court has, since 1979, interpreted the Alaska Constitution as presumptively requiring religious exemptions from generally applicable laws; but the court held that this presumption is rebutted here:

Alaska's free exercise clause was first interpreted in Frank v. State (Alaska 1979). In Frank we determined that, to invoke a religious exemption from a facially neutral state law, three requirements must be met: (1) a religion must be involved, (2) the conduct in question must be religiously based, and (3) the claimant must be sincere in his or her religious belief. "Once these three requirements are met, '[r]eligiously impelled actions can be forbidden only "where they pose some substantial threat to public safety, peace or order," or where there are competing governmental interests "of the highest order … [that] [are] not otherwise served."'"

Rachel meets the first Frank requirement because her beliefs regarding medical care are strongly informed by her religion. She meets the second requirement because her treatment decisions are based on her religious training and beliefs. And in the absence of any evidence to the contrary, we assume that Rachel's religious beliefs are sincere.

With these three requirements met, the second part of the test under Frank requires that a facially neutral statute that interferes with religious-based conduct be justified by a compelling state interest. In other words, the question becomes whether the government's interest in protecting Tiffany outweighs Rachel's interest in following her religious beliefs.

The guardianship statutes reflect the government's strong interest in protecting the health and safety of a vulnerable ward. A guardian has the duty to "assure the care, comfort, and maintenance of the ward" and to "assure that the ward receives the services necessary to meet the essential requirements for the ward's physical health and safety." A guardian may be dismissed if "there is an imminent danger that the physical health or safety of the ward will be seriously impaired." These statutory interests are similar to the government's interests in protecting the life, health, and safety of other vulnerable groups, interests that we have previously found to be compelling.

"[A]fter a court determines that the claimed exemption implicates a compelling government interest," the appropriate question "is 'whether that interest … will suffer if an exemption is granted to accommodate the religious practice.'" Here there is evidence that, should this exemption be granted, Tiffany's health and safety would be at risk. If Rachel cares for her mother following the tenets of her religious beliefs, then she will abandon the duties described by the guardianship statutes, including the duty "to meet the essential requirements for [Tiffany's] physical health [and] safety." By depriving her mother of personal care services and emergency services in favor of prayer, Rachel not only fails to satisfy the essential requirements under the statute, but also puts Tiffany's health and safety at risk.

Granting this exemption would be directly counter to the State's interest in protecting its most vulnerable citizens from harm. Rachel stated that if her mother were to have a heart attack or stroke, she would first pray for her rather than call emergency services. The threat to Tiffany's health, should she be returned to Rachel's care, is not speculative. While serving as guardian, Rachel did not ensure that Tiffany received her epilepsy medication as prescribed, putting Tiffany at significant risk.

Should Rachel be reinstated as guardian, Tiffany's health and safety will be seriously compromised. If Tiffany required immediate medical attention, the results could be fatal. For this reason, while religious liberty is a fundamental right under the Alaska Constitution, the State's actions in this case are justified by a compelling interest.

NEXT: Today in Supreme Court History: July 25, 1965

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Wow, common sense and decency prevails in a freedom of religion case.

    Rachel is free to practice her religion as she sees fit. If it injures her, that's on her. But there should never ever be a right of religion to injure, harm or take resources from another person. That principle is so obvious and basic it should not even have to be stated, but in today religious tyranny masquerading as religious freedom it has to be said over and over.

    1. This was a pretty stark decision: prayer vs actual proven drugs (or so I assume for this argument; it doesn't say much about how well the mother's condition responds to modern medicine).

      I wonder where one draws the line. Suppose parents have tried all the existing treatments for their child, none work, and they resort to some questionable alternative treatment from Mexico or Thailand. That seems to me, in a moral sense if not legal, to be no grounds for removing the parents as guardians.

      Suppose the parents simply can't afford the expensive treatments, and the government wants to substitute a rich guardian (or itself!) who can afford it and wants to help. Again, seems no grounds to me, since if the rich person (or government!) was only concerned about supplying the treatment, they'd do so without needing to have guardian control.

      I have no idea what the law would do in those cases, even while I have definite ideas about the morals involved.

      1. How would this rich friend have the legal right to supply the treatment? (Or were you talking there about the case where the parent[s] wants to give the treatment but the only barrier is inability to pay for it?)

        1. I distinctly separated the moral from the legal.

      2. " if the rich person (or government!) was only concerned about supplying the treatment, they’d do so without needing to have guardian control."

        You're overlooking consent. Applying medical treatment without consent is, legally speaking, battery.

    2. But God WANTS me to punish all the homosexuals, it's not like I want to do it. Jesus says I have to, it's right there in the Scripture: "Love thy neighbor, unless he's a stinkin' fag."

      This same problem often comes up in the form of faith healers who reject professional medical help for their children's medical problems.

  2. The threat to Tiffany's health, should she be returned to Rachel's care, is not speculative.

    Sure it's speculative. Who knows? Maybe God will answer all the prayers.

    1. And maybe I’ll win Powerball too

      1. Nuh-uh. I called it first. And my faith in God is so high, I didn't even buy a ticket. If God wants me to win, he'll send the winning ticket skittering across the parking lot in the breeze.

  3. I honestly don't think situations like this even should be subject to religion clauses (federal or state, constitutional or statutory). A person has the right to practice their religion. They don't have the right to force it on others. No one is telling the daughter she can't practice faith based heeling. They are just saying that she can't impose that on her mother.

    1. But the govt can impose their "religion" on others.

      Not I condone the daughter, just whether judges value determinations can actually be reduced to existing statutes. The govt by design is incapable of making moral decisions, which this is. Judges somehow imparted with omniscience, by their appointment. The goverment determining this daughter does not value the life of her mother, and it's wrong, but when she does not value the life of her unborn daughter, it's somehow fine, and moral.

      1. The govt by design is incapable of making moral decisions, which this is.

        Isn't outlawing murder a moral decision?

        Your pro-life argument, as usual, begs the question.

        1. If God doesn't like it, he'll change the system. He's done it before.
          By inaction, He signals His acceptance of the present order.

    2. I am curious why the “force it on others“ theory only applies to religious freedom and no other. Aren’t the “peaceful protesters“ in Portland forcing their views on their fellow citizens who disagree or are simply not interested and wish the protests would stop? Aren’t defenders of the second amendment “forcing“ their views on gun rights on others? Isn’t someone who refuses to surrender his property to the government absent fair compensation for a public use imposing his views on others? Virtually every exercise of an individual liberty involves some imposition on someone else. If all one has to do to deny someone a liberty is to claim that the exercise thereof is “imposing views“ then we are opening a door we may later regret.

      1. This argument seems overly complex. Protestors are only allowed by law to peacefully protest and if they invade the rights of others they are and should be subject to prosecution.

        Government cannot take property without fair compensation, or at least it is not supposed to but thanks to courts which allow confiscation under suspicion that is not the case. Doesn't make it right though.

        Second amendment rightist do not require everyone to possess guns, although some extremists would like to go that route.

        Conservatives and libertarians place the highest value on the rights of the individual. Part of those rights are not to have other individuals or the state's or religions imposed upon them. Period.

      2. No because in none of those situations are you forcing someone else to do anything. If you don't want to protest don't protest. If you don't want to own a gun don't own a gun. When a guardian is using their religious beliefs to dictate treatment of their incapacitated ward (diabled adult or child) they are forcing the other to live according to their religious beliefs because they can't do otherwise themselves.

      3. "Aren’t the “peaceful protesters“ in Portland forcing their views on their fellow citizens who disagree or are simply not interested and wish the protests would stop?"

        Go another step. If the fellow citizens just wish the protests would stop, why should that wish win out over the people who want the protests to continue.

        If you want things to stay the same, you're absolutely free to not protest for change. No amount of other people protesting changes your right to not protest.

        Now, there's an argument between the right to protest vs. the right to drive down the public streets as you go about your (non-protest) business, but that's different from the one you raise.

    3. The relationship is not daughter-mother, but guardian-ward.

      Parents get to impose their religion on children. Suppose adults become guardians of a 1 year old child; are they forbidden from imposing their religion? What if they adopt the ward, does that change things?

      Where is this line you want to draw?

      1. "Parents get to impose their religion on children."

        To some degree, but how many people perceive a parental right to permit (let alone require) children to engage in West Virginia-style rattlesnake juggling to glorify the Lord?

        How close is our society to respecting the views of the people who perceive such a right?

        1. "To some degree, but how many people perceive a parental right to permit (let alone require) children to engage in West Virginia-style rattlesnake juggling to glorify the Lord?"

          I'd be willing to bet that the percentage is a lot higher than you think it is.

          1. There is an outer limit though, even if it’s not always clear where specifically that line gets drawn. You can’t kill your child in the name of religion. Or discipline him by breaking his arm. Or pimp him out for religious prostitution a la fertility cults. And I’m fine with requiring parents and guardians to seek appropriate medical care.

            Nobody is telling them they can’t also pray over him, and credit God when he gets better.

          2. "I’d be willing to bet that the percentage is a lot higher than you think it is."

            Bad bet. I was raised in a deplorable community, steeped in backwardness, ignorance, and bigotry. I understand, better than most of my current neighbors, the level of ignorance, intolerance, insularity, superstition, and dysfunction that persists in our can't-keep-up backwaters.

            Far too many Americans would support the rattlesnake-jugglers -- but far more Americans recognize the need to keep those clingers on a tiny leash.

            How tiny? The size of a Trump finger.

      2. I would disagree with that too. If a parent practices faith healing and a child is harmed by it then they can and should be charged with neglect.

        That is also not really a free religion claim. It is a parental right claim.

      3. "Parents get to impose their religion on children."

        Except for when they don't. Let your kids run wild, and expect a bureaucrat at your door to talk to you about it, backed by the Sheriff's office.
        Also, there are the contested custody cases where Parent 1 wants to raise the kid as one faith, and Parent 2 wants to raise the kid as another faith. In those cases, at least one has to lose.

  4. The govt by design is incapable of making moral decisions,

    Then why are there laws against murder, rape, theft, etc.?

    1. Those are not moral decisions. Jury verdicts are moral decisions.

      That's just a guess.

    2. All property crimes, if you squint.

      Libertarians are funny sometimes.

      1. This is one reason I favor the libertarian view of the value of property rights. If understood in this way it provides a much cleaner, more consistent, and easier to predict set of laws which, when taken together, serves as a much better basis for law than much of what we currently do now as a civilization. Now there is too much guesswork to really honestly believe our system of patchwork legal philosophy is, when taken as a whole system, a justified system.

        1. If you believe property has rights, you have some significant mental gymnastics to keep everything square.

  5. It's good to see this decision. Now lets hope that courts continue to protect the vulnerable. Too many states have religious loopholes in their child protection laws. Including Alaska, though at a misdemeanor level only.

  6. This is generally consistent with pre-Smith precedents on the subject.

  7. What’s critical here is the narrowness of the circumstances. The mother’s life was in direct immediate danger and the daughter did nothing (except pray). This is not a case where the government or a judge would simply have preferred a different course of care or some lesser issue.

    1. " This is not a case where the government or a judge would simply have preferred a different course of care or some lesser issue."

      It is a case where I'd have preferred a different course of care. Deciding to pray is fine but deciding not to do anything else is a problem.

  8. What would have happened if, instead of making a religion claim, the daughter had instead made a secular right to die claim, claiming that medical treatment would be an affront to her mother’s secular human dignity.

    The claims would be virtually identical in practice. Both assert that medicine is inefficacious for people like this woman’s mother. Both assert that there is a belef that there is something wrong, somethkng immoral, about providing it.

    How would a right to die claim fare? It would succeed in a number of states, and Alaska has on the whole been relatively liberal.

    If a right to die claim would succeed, would the daughter have a Police vs. Newark claim? If the state has no compelling interest against an assertion of right-to-die secular human dignity, why would it have a compelling interest against a substantially almost identical claim based on religious dignity?

    1. "How would a right to die claim fare? It would succeed in a number of states"

      Generally speaking, a right to die claim has to be made by the person who is dying, and there are checks to assure competence. Pretty much everyone looks askance at trying to raise a claim that somebody ELSE has a right to die.

  9. It is good to see a (true) secular belief prevailing in this instance over a (false) evidence-based one.

    Of course in a saner and simpler world beliefs would just be beliefs, no subset of which - most especially not systematically *less* rational and *less* evidence-based ones -would get special deference such as via this "compelling government-interest" constraint.

    1. Aargh. "(false) *non-* evidence based one"

  10. Many of you seem to think that this has a happy ending. I hope it does, but I doubt it. In all likelihood, the mother is now under state guardianship and may very well live in a miserable nursing home being cared for by indifferent caretakers, and yes, she is receiving meds that will help her, but at what price? Her daughter was a nut, but she was her daughter. If it was me, I’d prefer the lack of proper healthcare by my clueless kid, because at least I’d get to be with them, rather than counting the days till I die at Shady Oaks, and hoping for a visit, which they may even discourage. These issues aren’t as clean cut as you all make it, and society takes too many liberties in breaking up families “to protect” individuals, who probably wind up even more miserable after societies intervention. Look at our screwed up foster care system in the USA. I do realize that the alternative would have been to let the clueless daughter continue to take care of the mom, not use any modern meds, and keep trying to pray away the sickness. You all seem to think that the government is going to do a better job, because of course, things always get better once the State takes over. I hope they do, but I have my doubts.

    1. " You all seem to think that the government is going to do a better job, because of course, things always get better once the State takes over."

      As long as she's still alive, there's a chance she gets a better outcome; once she dies from improper (or lacking) medical care, the odds of a better outcome drop to 0.00%

  11. The courts here assume, without consulting science, that prayer was significantly less effective than medicine.

  12. The courts make no assumption about prayer, since approximately no evidence suggests that the prayer would have been withheld if medical professionals were allowed to work on her. This means the debate is not prayer vs. medicine, but rather it's prayer + medicine vs. prayer alone. I'd also feel confident that people treated with evidence-based medicine will have better outcomes than people treated with no evidence-based medicine, and I'd laugh in the face of someone who considered this opinion to be "without consulting science".

Please to post comments