Religion

Religion and Failure to Provide Medical Care for Dying Children

An illustration of our individualistic law of religious exemptions.

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From In re Piland, decided by the Michigan Court of Appeals Thursday, in an opinion by Judge Michael J. Kelly, joined by Presiding Judge Thomas C. Cameron and Judge Kristen F. Kelly:

Respondents appeal … the orders terminating their parental rights to their children, MP, JP, and VP ….

On February 6, 2017, respondents' third child, AP, was born at their home with the assistance of a midwife. Less than 20 hours later, on February 7, 2017, the midwife observed that AP was showing signs of jaundice on her face and chest. Concerned about the presence and severity of jaundice within 24 hours of AP's birth, the midwife strongly emphasized to respondent-mother that the baby should be seen by a doctor. Respondent-mother refused, telling the midwife that "God makes no mistakes, our baby is fine." Respondent-mother conferred with respondent-father and, together, they declined to seek medical care for AP. Multiple witnesses, including respondents, testified that respondents' religious beliefs precluded them from seeking manmade medical care for themselves or for their children. Instead, respondents relied on faith-based or divine healing.

{At the time of AP's death, respondents were part of two religious groups, Free Saints Assembly and Faith Tech Ministries. They testified that both groups supported divine healing, but noted that neither group prohibited a person from seeking manmade medical care. Rather, it was up to each individual to determine whether they would rely solely on divine healing or would utilize a combination of manmade and divine healing.} …

[T]hroughout the case, respondents continued to object to their children receiving medical care. One child went to the hospital for an apparent allergic reaction. He was prescribed an EpiPen, which respondents adamantly stated that they would not rely on even if he were showing signs of an allergic reaction. When another child broke his foot, respondent-mother told him that he did not have a broken bone because if he believed in and obeyed God, his bones would not break. Respondents also objected to the lifesaving medical treatment that VP received after she was removed from respondents care. The record reflects that, like AP, she was jaundiced within 24 hours of her birth. She was diagnosed with hemolytic disease of the infant. To treat it, she required seven days of phototherapy and required an exchange transfusion. Without the treatment she would have died. Even knowing that, respondents maintained that they would not have sought medical treatment for her. At trial, respondents testified that under no circumstances would they seek manmade medical care for their children.

AP died, and the state sought to terminate the parents' rights to the other three children (two older ones, who were under seven years old, and VP, who was born about 1½ years later). The parents wanted to have the jury instructed under a Michigan statute, MCL 722.634, that provides that:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

(Termination decisions are apparently made by a jury under Michigan law, though to my knowledge most states don't use a jury for that; and the statute does generally apply to child protection cases.)

The trial court had held that the statute didn't apply in this case, because of the word "legitimately":

Now, the Court believes that for a religious belief to be legitimate, it must conform to the law or rules…. [T]here needs to be at least some recognized standards or acceptable, uh—recognized or acceptable standards that we are gaging those relief—beliefs against to determine whether or not those beliefs are legitimate.

The legislature, in my estimation, did not intend to provide this exception to all strongly held beliefs. They also didn't intend to provide this exception to all strongly held religious beliefs, but only those beliefs that were in accordance with practicing a religion, uh, or religious rules or laws, or in—in conformance with acceptable religious standards, and acceptable religious practices.

Individual acts of faith or following subjected—subjective individualized beliefs do not constitute legitimately practicing your religious beliefs….

The Court is not, um, ruling in this instance that the [respondents'] faith is not heartfelt or dis—dishonest. Uh, they have been steadfast an—and earnest in their beliefs. However, those beliefs are not supported by any law, doctrine, or cannon of any religion. They are religious in nature, but that does not rise to the level of a legitimate practicing of a religious belief.

Their own assembly, or sect, or—or group, made it clear that medical treatment is not prohibited by the tenants of their faith. And the [respondents] have taken scripture and have personally interpreted in this way, which is not covered by MCL 722.634.

The Court, therefore, believes that the proffered instruction based upon the statute is, therefore, not warranted. [Emphasis added.]

But the court of appeals disagreed:

We conclude that the trial court's view that the word "legitimately" means that a parent or guardian's religious beliefs must be legitimate is unconstitutional and must be rejected….

The trial court's interpretation of the word "legitimately," as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian's subjective interpretation of scriptures. The trial court's interpretation, however, renders the statute unconstitutional. It is well-established that "government has no role in deciding or even suggesting whether the religious ground" for a person's actions "is legitimate or illegitimate." Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com'n (2018). Instead, in order "to respect the [United States] Constitution's guarantee of free exercise [of religion], [the government] cannot … act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." Id. See also Church of the [Lukumi] Babalu Aye, Inc. v. City of Hialeah (1993) (stating that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."). As our Supreme Court explained in People v. DeJonge (Mich. 1993):

This Court must accept a worshiper's good-faith characterization that its activity is grounded in religious belief because "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Hernandez v. Comm'r of Internal Revenue  (1989). This must be so because "[m]en may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others." [U.S. v.] Ballard (1944).

Nor is religious orthodoxy necessary to obtain the protection of the Free Exercise Clause. Religious belief and conduct need not be endorsed or mandated by a religious organization to be protected. Indeed, because popular religious beliefs are rarely threatened by elected legislators, the Free Exercise Clause's major benefactors are religious minorities or dissidents whose beliefs and worship are suppressed or shunned by the majority. To hold otherwise would be to deny that "Religion … must be left to the conviction and conscience of every man…." [Footnotes omitted.]

See also Frazee v. Illinois Dep't of Employment Security  (1989) (noting that "the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect," and rejecting as improper the state's contention that, although the appellant's conviction was religious, it was "inadequate because it was not claimed to represent a tenet of a religious organization of which he was a member."). As is clear from the above authority, the trial court improperly held that respondents' religious beliefs lacked legitimacy solely because their beliefs were not represented by a tenet or rule of a religious organization.

We also hold that the trial court's interpretation is inconsistent with the statutory language…. According to Merriam-Webster's Collegiate Dictionary (11th ed.), "legitimate" is defined as follows:

1 a: lawfully begotten … 2: being exactly as proposed: neither spurious or false … 3 a: accordant with law or established legal forms or requirements < a ~ government b: ruling by or based on the strict principle of hereditary right < a ~ king 4: conforming to recognized principles or accepted rules and standards … 5: relating to plays acted by professional actors but not including revues, burlesque, or some forms of musical comedy.

The trial court relied on the third definition because the court was considering the meaning of the word "legitimate" as it would be used to modify religious beliefs formed by association with a religious organization. That makes sense as that definition clearly relates to the structure of organizations, such as governments and monarchies. However, the word "legitimately" modifies the word "practicing." Therefore, by interpreting the word in connection with "religious beliefs" as opposed to the practice of religious beliefs, the trial court misconstrued the statute.

The correct inquiry requires consideration of what it means to be "legitimately practicing" a religious belief. In relevant part, to "practice" is to "carry out, apply < ~ what you preach >" Merriam-Webster's Collegiate Dictionary (11th ed.). Thus, the only definition of "legitimate" that makes sense in the context that it is used is the second definition, i.e., "being exactly as proposed: neither spurious or false." Together, then, in order to be "legitimately practicing" his or her religious beliefs, the parent or guardian must have been actually practicing his or her religious beliefs at the time that he or she did not provide his or her child with specified medical treatment. And, if a rational view of the evidence supports that finding, an instruction in accordance with MCL 722.634 is required.

The record is replete with testimony showing that respondents were actually, i.e., legitimately, practicing their religious beliefs when they did not seek medical treatment for AP. [Factual details omitted. -EV]

{By so holding, we are not depriving the jury from making its own determination as to whether respondents were legitimately practicing their religious beliefs. The record plainly indicates that they sought medical treatment for themselves, including once when respondent-father went to urgent care to have glass shards removed from his arm and to have the injury "glued" and bandaged. Both respondents also rely on prescription eyewear. Finally, for the births of their first three children, respondents sought and consented to treatment by a midwife. Although they rejected some treatment options, they consented to others, including routine checks of respondent-mother's blood pressure and evaluation of the fetal heartbeat. They also had both of their older children circumcised by a medical professional. A jury could very well conclude that respondents' decision to provide themselves with medical care, but to deny it to their children is evidence that their religious beliefs were not being legitimately practiced. The court and the lawyers, however, should take care not to suggest that the legitimacy of respondents' religious beliefs is a matter for consideration by the jury.}

As an alternative basis for its decision denying the request for a jury instruction based on MCL 722.634, the trial court sua sponte held that the statute was unconstitutional because it impermissibly interfered with AP's constitutional right to life. We disagree. Notably, MCL 722.634 does not preclude consideration of the parent or guardian's decision to not provide specified medical treatment. Instead, the statute only precludes that from being the only, i.e., the sole, reason for determining that the parent or guardian is negligent.

Therefore, the jury can consider the decision or failure to provide specified medical treatment in connection with other evidence showing that the parent or guardian is a negligent parent or guardian. Additionally, MCL 722.634 expressly states that a court is not precluded "from ordering the provision of medical services or nonmedical remedial services recognized by state law to a child where the child's health requires it nor does it abrogate the responsibility of a person required to report child abuse or neglect." Thus, although the statute offers some protection to a parent or guardian legitimately practicing his or her religious beliefs, it nevertheless balances the state's need to intercede to protect the child's health.

Consequently, the statute only precludes consideration of the failure to provide medical support from being the only consideration, permits the state to intervene to protect the child's health, and it does not exempt mandatory reporters from reporting abuse or neglect, so the child's health and safety is not unprotected. Again, MCL 722.634 is not an absolute exception. A jury instructed in accordance with MCL 722.634 is not required to return a finding of no jurisdiction….

I think the analysis is correct; the Religion Clauses preclude the government, including courts, from preferring beliefs that are endorsed by the established rules of a religious organization differently from beliefs that are the product of individual moral judgment. We have an individualistic law of religious exemptions, rather than a denominational-hierarchy-focused law. (One might view it, figuratively, as a Protestant law rather than a Catholic law.)

The Michigan statute may well be a bad idea, and I think that, absent such a statute, removing children from the care of parents who refuse to provide medical care is constitutional. Under the Free Exercise Clause, such a rule would be neutral and generally applicable and thus valid, I think. And even under state statutes or constitutional provisions that presumptively require religious exemptions, that presumption would be rebutted here, since such removal is narrowly tailored to the compelling interest in preserving children's life and health.

But once such a statute is present, the Michigan Court of Appeals is correct that it can't distinguish religious objectors based on whether their ostensible coreligionists share their views.

NEXT: Today in Supreme Court History: April 17, 1978

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  1. So we now permit human sacrifice in the name of religion?

    1. Does that have anything at all to do with whether parents are guilty of child neglect for deciding not to seek medical care for their children?

      1. I’d say they’re guilty of worse than child neglect.

    2. Abortion rights advocates need to be worried about advocating the state’s right to intervene here because that is exactly what the “pro life argument” *is* — that the state should have the power to intervene to save the life of the child.

      1. Some years back, there was a disturbing case where a similar “interesting” couple had one child die and they buried said child in Maine without telling either state. For this and a few other reasons, the state (MA) took away the couple’s other children.

        But she was pregnant — so the state locked her up in a prison ward so that she couldn’t harm her unborn child until she gave birth, at which point they planned to take the child and release her.

        She could legally have had an abortion, but didn’t want to — so the state somehow had the authority to do this. I still don’t know how.

      2. You are begging the question.

      3. There’s a rather important distinction between trying “to terminate the parents’ rights” over a child after it is born, and trying to do so before it is born, don’t you think?

        1. Well, Massachusetts has done the latter. Somehow it was legal…

      4. Remember, most swords are double-edged. Pro-life advocates must also reject the law allowing unconditional deference to parents’ religious beliefs in matters of children’s medical treatment. I would be my last dollar than 99.9% of the citizens that pushed for the law were pro-life.

        1. There is a big difference between deliberately trying to kill the child and doing what you genuinely believe to be likely to help the child.

          Also do not forget that the placebo effect is real — so real that the practice of Western medicine once actually included the use of placebos.

    3. Since 1973, Bernard, since 1973.

      1. Whatever you think of the pro-choice movement, it is not based on claims of divine revelation.

        OTOH, there really is no difference between these parents and others who sacrifice a child because they claim the Lord has ordered them to do so.

        It’s an abomination.

        1. Actually, there is.

          Take the child with the broken foot — God *will* heal it — the bone(s) will naturally set and the only thing that modern medicine can do is make sure the bones are lined up right and put a cast on to keep them lined up

          Modern medicine can’t “fix” broken bones. It can’t.

          1. The parents did not claim god would heal the broken bone — they claimed it was not broken at all, because “…if he believed in and obeyed God, his bones would not break.”

            This illustrates that the line between religious belief and insanity can be very fine indeed. Perhaps the parents’ theory should be tested by having someone attempt to break their bones.

            1. I find it interesting that they don’t see the death of their infant as a message from their deity telling them that they are bad parents. After all “God makes no mistakes” but he could easily be testing whether the parents make mistakes. No doubt they will see it as a divine test of the strength of their faith rather than a divine test of their parental abilities.

            2. No, that does not illustrate any line generally between religious belief and insanity.

              All it does is demonstrate that the insane do not become sane by getting religion, they just get insane religious beliefs.

              The insane believe insane things. Insane religious people have insane religious beliefs. However this says nothing at all about religion generally.

          2. You’ve obviously never had an open fracture; modern medicine can do much more than “make sure the bones are lined up right and put a cast on” including implanting intramedullary rods, debriding and closing wounds, and lots of other procedures to ensure that bones will grow back together.

            1. True — but this was not an open fracture.

        2. Whatever you think of the pro-choice movement, it is not based on claims of divine revelation.

          Neither are Buddhism or Taoism.

          1. Whether or not Buddhism and Taoism are religions, I think it’s a huge stretch to claim that being pro-choice is a religion. Some of its proponents may have religious-like zeal, but then so do some sports fans.

            So my question to those who are claiming pro choice is a religion is this: How are you defining religion? By what possible definition does the term “religion” stretch far enough to take in being pro choice?

            And just to make it easy, every good definition has two parts, a genera and a differentia. The genera tells us the class or family to which something belongs, and the differentia distinguishes that member of the class from the rest of the class. For example, a “fork” is an eating utensil that has tines. “Eating utensil” is the category; “tines” distinguishes it from other members of the class like spoons, knives and chopsticks.

            For religion, “belief system” is the genera and the question is what distinguishes religious belief systems from non-religious belief systems. Your answer must take in all religion, and only religion.

            1. Read John Locke — or Thomas Jefferson’s restatement of him in the Declaration of Independence.

              The right to life is a God-given right which, as such, only God can revoke. Hence while God can cause a miscarriage, no human has the right to do so.

              That is a religious belief, one which our country was founded on.

            2. What about sporks?

    4. Well not your classic virgin on the alter human sacrifice, I don’t think the legislature or the courts actually ruled on that aspect.

      But I do think it’s an important question that deserves their attention.

      1. The problem with virgin sacrifices involves *finding* a virgin in the first place…

        😉

    5. “We” don’t. Michigan might.

      1. Fair enough, though some here seem to endorse the idea.

  2. Lukumi Babalu Aye, NOT KUKUMI. Not the good professor’s mistake, of course.
    This case stands for the proposition that SCOTUS will crawl up trees backwards to protect religious rituals as gruesome and evil as Yorubas sacrificing animals by slitting their throats and bleeding them to death in order to titillate their blood-thirsty god.

    1. gruesome != evil.

      1. If one thought that gruesome was synonymous with evil, one would not tend to write “gruesome and evil”. It would be redundant, superfluous, and needlessly repetitive.

        1. Sure parses like a package deal in that comment.

          1. It is a package, because gruesome =/= evil. Therefore gruesome AND evil. Things can also be evil and not gruesome, or gruesome and not evil. And, since evil is a matter of personal opinion, personal morality, who are you to judge whether the poster above thinks it is evil?

    2. Good catch — I’ve corrected the quote to say “[Lukumi].”

      As to the substance of the case, the Court’s reasoning was that the law was deliberately singling out religious practice for special punishment (since comparable nonreligious killing of animals wasn’t being outlawed).

      1. It’s pretty hard to split hairs between ritual slaughter for food, such as a Kosher or Halal butcher or some other sect cutting open a chicken to examine the entrails before it’s consumed.

    3. SCOTUS will also crawl up trees backwards to protect abortions as gruesome and evil as Yorubas sacrificing animals by slitting their throats and bleeding them to death in order to titillate their blood-thirsty god.

      These types of parents are a small fringe, a million women a year kill their unborn babies.

      1. Lucky for you, Bob, there isn’t a popular movement yet to kill all the question beggars.

        1. Or the people who don’t know what question begging is.

          1. Uh, unborn babies sure is begging the question, TiP.

            1. Wrong.

              1. The question is whether a fetus is an unborn baby and Bob begged that question.

                1. Nope. Simply calling a fetus an unborn baby doesn’t make it question begging.

                  1. Since the question being debated is whether abortions kill babies, calling a fetus an unborn baby begs the question.

                    1. It doesn’t matter whether you call it a fetus or an unborn baby, they’re just words. There is an undeniable fact that the clump of cells inside of the mother clump of cells is human, unborn, but at some point (prior to birth) fully formed to the point of being capable of living outside of the womb. That point might not be a bright line, but it exists.

                      It’s hilarious that endangered animal eggs have more legal protections than an unborn human.

                    2. “It’s hilarious that endangered animal eggs have more legal protections than an unborn human.”

                      This might have something to do with the fact that in order to give the unborn human rights, you have to take rights away from a born human.

                    3. “you have to take rights away from a born human.”

                      Oh no, not the right to kill. Darn. Not like we are capable of balancing rights.

                      Morally speaking, why do you have right to live just because you passed through the birth canal, or were surgically excised?

                      Don’t worry, pretty soon all of the cool people will grow their babies in tubes, and only the poor or stupid will make their own.

  3. Delusional lawyers who believe in supernatural legal doctrines defer to off beat fake religious beliefs.

    1) DNA is our real creator, and 2) it does make mistakes. Mistakes are to its advantage sometimes in rarely finding a genotype with superior survivability. Then, it runs with it. That is how we are here, and dinosaurs are not. There were billions, and they totally ruled, but no longer.

    This profession loves to kill babies. It sacrifices them on the altar of vile feminist mass murderers, and on the altar of fake religious beliefs.

  4. Someone needs to explain to these people that God created people who study to become doctors and also the plants from which so many of our medications are derived.

    1. And, presumably, the elements and subatomic particles from which all of our medications are derived.

      1. And that Jesus Christ is our Lord and savior.

        Do you not see the slippery slope that you are going down???

        1. It ends with money changers being chased out of temples.

          1. Nige — Jesus was neither upset about the money changer in general, nor about them being in the temple. Business activities were routinely conducted in the *outer* temple which was a social gathering spot.

            Jesus was upset about the fact that the moneychangers were cheating people — and that they were violating Jewish law in the process.

            The two facts often overlooked by both Christians & Jews are that (a) Jesus was an Observant Jew and that (b) he was frequently upset about others not observing Jewish law.

            1. Blessed are the Jesusplainers.

      2. In the Sharia, it Haram (a sin) to refuse medical treatment, since doctors and medical treatments come from Allah. I prefer the Sharia to the current used Catechism. It is less procedural, and less rent seeking. All Islamic countries, including the poorest, have low crime rates. One factor has to be the prohibition of alcohol.

        https://islamqa.info/en/answers/2148/ruling-on-giving-medication-and-seeking-the-patients-permission

    2. Well that’s true,and God also created the Devil to tempt people into inequity.

      I’m am an atheist so I don’t have a dog in this hunt. But if I did, whatever critter that dog came back with I would have some good sound doctrine to explain whether it was the critter God wanted, or an abomination to be abhorred.

      And God help the court that tries to tell me I have strayed from the true path.

      1. Ummm…. Christian theology has a slightly different view about the origin of the Devil — that God kicked him out of Heaven when he became evil.

        You don’t have to believe this, but please get it right.

  5. Cases like this give the religious a bad name, and are perfect fodder for anti-religious bigots like Arthur Kirkland to opine…

    1. To be precise, “cases” in the sense of incidents that make their way to court (which flow from some pretty reprehensible religious beliefs); also, perhaps, the statutes that provide immunity such as this. Given the statute, though, the case in the sense of the court decision strikes me as correct.

      1. I think that one of the worst was in Auburn, ME back in 1984 when a 4-year-child was burnt to death in an electric oven so as to drive the Devil out of her, or something like that. See: https://www.upi.com/Archives/1984/10/29/Parents-burn-child-to-death-in-oven/1533467874000/

        Of course the issue that no one ever really wants to talk about is where is the line between genuine religious belief and mental illness, along with (often) very low IQs.

        1. Worst of what? The Lane/Palmer case had nothing to do with a religious belief, although Lane tried to raise it after the fact comingled with an insanity platform. (Did he consult with you?) Result: Life in prison.

          Palmer was acquitted as being unconscious at the time. (with a provably high probability) She never got custody of the surviving child, and passed in 2005.

          The foundation for that horror was dope; lots of it. No line anyone needs to talk about either.

          1. There was a *lot* that didn’t make the press in that case, starting with the fact that the trial judge was p*ssed at defense counsel for the terrible job of purportedly defending Palmer at trial.

            Palmer told responding officers that he thought that the girl was the Devil and that is why he put her in the oven. This was not raised after the fact.

  6. I 100% support this. Now prosecute all the negligent and malicious parents/and sometimes even strangers who out of their cult religion let or force their children to engage in these bizarre rituals where they take medically unnecessary drugs or surgeries to attempt to change their biological sex even though such a thing is obviously well beyond current science. And or adapt the mental delusion that they have suddenly switched their biological sex. Significant increase in mental distress and death on the victims not to mention entire societies due to these heinous dogmatic superstitions has been rigorously demonstrated statistically in several studies.

    While the Jehovah’s witnesses and groups you mention are worrying enough this aforementioned cult is far more widespread and influential on our vulnerable children and should be given proportionate attention.

    1. I support the termination of parental rights in this case to be specific

    2. “Now prosecute all the negligent and malicious parents/and sometimes even strangers who out of their cult religion let or force their children to engage in these bizarre rituals where they take medically unnecessary drugs or surgeries to attempt to change their biological sex even though such a thing is obviously well beyond current science.”

      The problem with prosecuting parents who make decisions that authorities disagree with is that many prosecutors, judges, and doctors are members of this cult and are likely to prosecute parents who refuse to sacrifice their children as the cult demands.

    3. You win the straw man award for the month thanks to two whoppers in one post: 1) transitioning is a religious practice and 2) transitioning is changing one’s biological sex.

    4. That’s not a problem. Conversion therapy. Now that’s a problem.

      1. Conversion therapy being bad doesn’t mean that transitioning is good. One only has to look at outcomes to realize that.

        How about just regular therapy… Pre-pubescent children shouldn’t be made to feel like they are supposed to be subjected to hormones and surgery. Can’t even get a tattoo until 18, but sure, go ahead and have life changing hormone therapy and surgery.

        What a screwed up world we live in.

  7. “I think that, absent such a statute, removing children from the care of parents who refuse to provide medical care is constitutional.”

    You’d hope that parents refusing to provide medical care for children after weighing the pluses and minuses and determining that the care is not in the child’s best interest is protected under the parent’s right to raise their children.

    1. Look into the mental health aspects of the Common Core curriculum.

      Be afraid — be very afraid….

      1. Why don’t you give us an example.
        The state is so negligent with respect to mental health and state mandated instruction is questionable

    2. And the minuses in this case are?

      1. I’m not sure that this case counts as weighing the pluses and minuses.

        The concern is that disagreeing with medical professionals becomes child abuse. You see plenty of cases of that already.

        1. The concern is that disagreeing with medical professionals becomes child abuse.

          First, at some point it does indeed become child abuse. Trot out all the slippery slopes you want. That doesn’t change things.

          Second, they didn’t really disagree with medical professionals:

          Without the treatment she would have died. Even knowing that, respondents maintained that they would not have sought medical treatment for her. At trial, respondents testified that under no circumstances would they seek manmade medical care for their children.

          That is, the opinion of medical professionals was of no interest to them.

          1. “First, at some point it does indeed become child abuse.”

            You’re suggesting that parents who exercise there judgment in good faith about what’s in the best interests of their child, can be guilty of child abuse? At what point is that?

            “Second, they didn’t really disagree with medical professionals:”

            In this case, sure. I’m talking about in general.

            1. At what point is that (going from a good-faith disagreement to child abuse)?

              You hit upon the problem. I suggest the first thing we need to do is decide who gets to make that decision.

            2. “You’re suggesting that parents who exercise there judgment in good faith…”

              Oh now who is a statist? As somebody upthread noted:

              “The problem with prosecuting parents who make [good faith] decisions that authorities disagree with is that many prosecutors, judges, and doctors are members of this cult and are likely to prosecute parents who refuse to sacrifice their children as the cult demands.”

              This highlights the problem. It is impossible to evaluate the neglect of parents who allow their children to die without invoking some standard, and that standard is created by humans. You’re going to draw a line, bernard is going to draw a line, so y’all aren’t arguing about whether to draw lines. You’re arguing about where.

          2. The concern is that disagreeing with medical professionals becomes child abuse.
            First, at some point it does indeed become child abuse. Trot out all the slippery slopes you want. That doesn’t change things.

            Tell that to Justina Pelletier, the teen abducted by Boston Children’s Hospital in 2013. See: https://parentalrightsfoundation.org/medical-kidnapping-the-pelletiers-story/

            “Second, they didn’t really disagree with medical professionals:”

            In Justina Pelletier’s case, the medical professionals didn’t evenagree…

            “That is, the opinion of medical professionals was of no interest to them.”

            It’s called the practice of medicine, not the known science of medicine. I’m oversimplifying things a *lot* here, but I am reminded of the foreword that a veteran ER doctor put in a book on emergency first aid a decade or so ago — how in his professional lifetime, we had gone from “scoop & run” to stabilize on the scene and then transport, to now going back to “scoop & run.”

            “Scoop and run” literally is that — scoop up whatever is left of the victim off the pavement and run like hell to the hospital — and prior to the Vietnam war and what was learned there being transferred to the US in the 1970s, 1980s, and even 1990s, that is what emergency medicine largely was — young people driving a lot faster than we wanted to with the sole goal of handing the patient off to someone who knew more than we did.

            Then we started sending out ambulances that aren’t safe to drive much over 60MPH but are better equipped than a hospital emergency room was back in the 1960s. And we stabilized people in the field and then nonchalantly transported them to the hospital.

            And now we are going the route of air ambulances and rapid transport to regional trauma centers — a literal return to “scoop and run”…

            So which generation of experts were wrong?

            1. To those under the age of 50 — the high cube box truck style of ambulance used today didn’t arrive until the mid/late 1970s. Prior to that, they were hearses — often literally older ones donated by funeral homes and repainted by fire departments.

              Those initially designed for ambulance service would often have a 550 cubic inch (9 liter) engine and be designed to go very, very fast.

              You couldn’t stand up inside one of them, and they didn’t have the space to carry all the stuff that Federal regs started mandating by the late 1970’s, but even with bias tires and the far more primitive steering & braking systems of the era, they probably were safe at 100 MPH if going on a straight highway. They were aerodynamic.

              A high cube box truck is about as aerodynamic as a barn door — and becomes really scary to drive at speeds a whole lot slower than that. But you can stand up inside of them and hence can do things for the patient that you couldn’t in the hearse-style ambulances.

    3. You could make that same argument for parents who make other objectively insane decisions about how to raise their children, like maybe it’s in their best interest to let the pastor diddle them, because he’s a holy man who says it will bring them closer to god? Or beating them within an inch of their life is the best form of discipline?

      At a certain point, the right to raise your children becomes so harmful it is the states interest to intervene.

      Sacrificing your kid to God, as is what’s happening when you know death is the outcome, and medical care will prevent that outcome, but you decline it anyway because of religion, is something that is as much if not more unreasonable than my other examples- would you defend those?

      You’d think human sacrifice would be clearly unreasonably, but people have taken ‘respecting religion’ to such a ridiculous extreme I’m surprised my examples aren’t defended by the pro-child abuse lobby you’re a part of.

      Meanwhile it would sure be nice if the rest of the Bill of Rights was given 1/10th the level of protection of the establishment clause.

      1. “like maybe it’s in their best interest to let the pastor diddle them, because he’s a holy man who says it will bring them closer to god”

        As opposed to letting a MD do it in the course of a physical exam?

    4. “You’d hope that parents refusing to provide medical care for children after weighing the pluses and minuses and determining that the care is not in the child’s best interest is protected under the parent’s right to raise their children.”

      How can there possibly be a right to let your child die without any medical care at all? This isn’t choosing between chemo and radiation, or Pfizer and Moderna.

      How is that any different than choosing to not feed your child? Or killing them because you just don’t feel like being a parent anymore? “Because God made me do it!”

  8. I find that fifth definition of ‘legitimate’ to be bizarrely unrelated to the rest.

  9. Planned home births should be illegal in the first place.

    If the baby was born at the hospital, it likely would have lived. This is not 1000 or 1700 or even 1900, there is zero need for a home birth. It is reckless because every birth has potential risks. When every second counts, a hospital is many minutes away even under the best circumstances.

    1. And for that reason my physician daughter looks down on midwifery.
      True, in the 19th century it is the usual way it was done

      1. It was actually safer because the midwives washed their hands.
        The doctors didn’t and spread childbirth fever as a result.

    2. Well I disagree. The vast majority of humans that have ever lived were born at home and it is still quite common worldwide.

      All three of my happy healthy children were attended by Nurse-midwives, but only one of which was at home. My second child is exceedingly proud of being born at home.

      Don’t take a natural normal event as a medical emergency.

      And please don’t try to tell us the government should be involved in every medical decision.

      Conservatives and libertarians have to realize that pet peeves and personal preferences don’t make good law.

      1. Why is your child proud of being born at home?

  10. How does the child’s right to life stack up against the parent’s religious rights? If Michigan’s statute devalues the child’s right in favor of the parent’s, does that present a constitutional problem?

    1. I’ll bite. Which constitutional provision?

      The practical problem is that even if the kid did have a constitutional right not to be murdered by someone who is not the state, the people who ordinarily assert those rights on behalf of children are, in this case, the ones doing the murdering.

  11. I have for a time admired for its protection of religious freedom the notion that courts do not get to evaluate the content of religious belief. I have also argued that the same doctrine can and should be applied against some applications of RFRAs—when religious claimants come to court arguing that particular religious tenets are entitled to exemption from generally applicable laws, because the laws burden practice of those beliefs.

    In such cases, I have argued the court’s answer should likewise be that it is not empowered to take notice of the specifics of religious beliefs and practices. It seems absurd to insist courts are powerless to say what is a religious belief, but are required to protect practice of all the religious beliefs the court cannot even recognize. If we insist on that, we might as well boil it down to its essence, and declare equivocally that lunacy and religion are the masters of the law.

    The alternative—to say the court leaves the content of belief alone, but empowers the religious character of a claimant’s belief—actually touches on no question of religion at all. Nothing in that posture distinguishes whether religion or insanity is the subject under discussion.

    In light of this case, I think I’m done with all that. So-called, “individualistic,” religious belief is an unbounded notion. It encompasses not just awe of god, but also the entire universe of superstition, insanity, and mental chaos.

    To the extent that parents are so unstable as to deprive their children of life saving medical care, they are dis-served by being told there is any possibility that the law would honor any such dangerous proclivity. Such parents must be far-gone in confusion—possibly acting under malign or cult-style influence—and desperately in need of alternative social context which the law should provide.

    People ready to let their children die of treatable medical conditions need interventions, not legal encouragement. And of course their children need such interventions more urgently.

    It is time to step back from a legal doctrine which has run out of control. Awe of god can be reclaimed for legal protection, and insanity imposed on children can be precluded.

    The law should distinguish between religious practice which includes saving and ameliorating social context—manifest by existence of generally practiced doctrinal tenets—on the one hand, and context-free, socially isolated individualism on the other. The law should graciously regret its inability to extend protection to the latter. Protection of religion should require there actually be religion in evidence—literally in evidence.

    1. One key point here is that the children are the victims of someone else’s religious freedom, not their own.

      1. The impact on third parties is an argument for why religious exemptions can sometimes violate the Establishment Clause.

        1. That’s not really how I would analyze it though. The impact on third parties creates compelling state interests, and with very young children, who don’t technically believe in any religion at all, there’s no particular reason that we should graft the parents’ religious beliefs onto them.

          Either way, an approach that treats things as though a parents’ own religious beliefs are grafted onto the children seems grossly wrong. But that seems to be the law.

          1. The Establishment Clause argument comes from Cutter v. Wilkinson

            courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.

            I don’t doubt that the interests of the child creates a compelling government interest. That’s why the state likely can force the parents to get medical help for their children under threat of punishment. However in this case, the state has chosen not to do that and you need some other argument to conclude cannot make that choice.

      2. Well I wouldn’t dispute that.

        But what is the courts role here? A general commission to right all wrongs?

        The Legislature wrote the law.

        The lower court did not apply the law, and even worse applied it in an unconstitutional manner substituting it’s own judgement about what the parents religious beliefs were.

        I’d have more sympathy for the lower courts judgment if it said the legislature was wrong, the welfare of the child is paramount, even though it would be without any foundation of the law.

        But surely a lawyer should be able to see the lower court got the law wrong, the appeals court got the law right. Even if we could wish the law were different.

        And I really can’t see any US constitutional provision that would override that judgement, especially concerning parental rights. But of course I can’t really speak to the Michigan constitution.

    2. Well said, Stephen.

    3. If only Stephen Lathrop’s prejudices were the law!

    4. Actually in evidence?

      I think it’s pretty apparent that Buddha, Jesus, Mohammad, Confucius, Joseph Smith and even L Ron Hubbard just made it up as they went a long.

      And I think the world is a mostly better place for it.

      As a pro-religious atheist, I don’t think you can just say anything after after Mohammed or Jesus is bullshit, except Marx of course.

    5. “The law should distinguish between religious practice which includes saving and ameliorating social context—manifest by existence of generally practiced doctrinal tenets—on the one hand, and context-free, socially isolated individualism on the other.”

      The problem is, who gets to draw the line?

      I’m remembering a conversation with a very liberal acquaintance, husband of a friend, who thought it a good idea to require parenting classes before anyone would be allowed to have children. Among many areas discussed, in his view it was critical that children receive no religious teaching until old enough to make their own choices.

      What struck me was not that he would propose such a thing. It was his inability to understand how anyone would disagree with his eminently sensible idea.

      (When I got home, my wife had already heard of our discussion. To her great amusement, I had greatly enjoyed the conversation whereas the acquaintance just thought I was an asshole for disagreeing with him.)

  12. So if I shoot someone and they die, I can say “well, obviously God wanted them to die or God would have saved them”, and get off?

    1. Yes, you can say that. No, you can’t get off.

      Overt acts are different from acts of commission.

      However, if some other asshole, I mean besides you, shot them, and it was your sincerely held religious belief, you would get off. That is if the state had a similar statute as Michigan does.

      I mean that is really the crux here, isn’t it?

      Michigan wrote the statute leaving an exception for a sincerely held belief, and the court of appeals is saying a sincerely held belief is what the parents think, not other congregants of the ministry.

      I really don’t think the appeals court would give them a pass if there was convincing evidence that those were not their beliefs, but second guessing what their beliefs should be is contrary to the statute.

    2. That’s pretty close to what Charles Guiteau’s actual defense was when he was on trial for shooting President Garfield. Didn’t work.

  13. Funny how these people are willing to let God decide medical outcomes without doctors but not legal outcomes without lawyers.

  14. 1. Whenever you read about a trial court’s opinion, and you find “um” and “uh” scattered about, you know that the trial court is going to be reversed.

    2. I believe that the religious beliefs of the parents in this case are absurd and the law should not honor them. Of course, I could say the same thing about the religious beliefs on various subjects of (say) Muslims, or Roman Catholics, or Episcopalians, or Jews, or Baptists, or Presbyterians. (btw I belong, or have belonged, to two of those sects.) I like the idea that the wise, compassionate government can override foolish religious-based decisions, in order to protect helpless children. Wise, compassionate governments used to do that by prohibiting abortion without medical necessity, but that’s now unconstitutional.

    1. Where will you f8nd a wise compassionate government?

      1. It’s in the same place as proof that God exists.

  15. Dear Lord,

    If you’re real then please smote (smite?) these pieces of shit parents as they are not taking care of your precious gifts to us.

    Oh and can I have a boat?

    A big boat?

    Your humble server,

    apedad

    1. “Oh and can I have a boat?”

      I strongly suggest you read Stephen King’s _The Monkey Paw_.

      Be very careful what you ask for lest you actually get it…

      1. So you agree religion is just fantasy.

        1. That was a stretch even for you.

        2. No, I’m not all that far removed from my Puritan roots and I believe that there are some double unplussgood consequences with making inadvertent deals with the Devil.

          I believe in the equivalent of what’s likely to happen if you start tossing lit matches into tinder-dry underbrush….

          Fantasy — no….

          You put a boat through water that doesn’t exist and realize that you are alive afterwards and you will have a very different attitude…

      2. W.W. Jacobs. Not Stephen King.

        1. Well, I read the version that King wrote.

          Now as to him having stolen it from someone else, that wouldn’t surprise me in the least.

          1. He didn’t steal anything – he didn’t write a story called The Monkey Paw. He wrote a story called The Monkey which is completely different.

            1. Well maybe he quoted its theme or something.

  16. a child, no match for
    ostensible adults and
    their superstitions

    1. Stick to desperate bitter clingers.

      1. Losing the culture war has made you cranky and obsolete.

        1. Losing the culture war? I’ve got three guns with more than 40 rounds strapped to me now in various states of open view to concealment, and I’m not breaking any laws and no one is looking at me weird.

          None of those things would have been true 10 years ago.

          Which culture war did I lose?

          1. If you’re a conservative, you have lost the culture war and it will get worse for you.

            You no longer get to kick gays around in alleys. Gays are getting married, despite right-wing objections deriving from superstition and bigotry.

            You can no longer prevent a woman from having an abortion, especially in communities with average or better schools.

            Your ability to pollute our water, air, and land has been diminished.

            We have Social Security, Medicare, and Medicaid. Obamacare is here to stay — until universal health care is established, relatively soon. (I hope it is still called Obamacare, for at least a century.)

            Women outnumber men in many strong graduate schools.

            You no longer get to prescribe prayers for schoolchildren in legitimate classrooms.

            You cannot preserve the White majority in America. Immigration and immigrants will continue to fuel American progress against conservative efforts and wishes.

            Conservatives are fringe players in our strongest teaching and research institutions. (This should not be surprising: Better schools disfavor stale insularity and prefer reason to superstition.)

            You continue to lord over our can’t-keep-up backwaters, but they are emptying and failing at the expense of our modern, successful, skilled, educated, reasoning communities.

            A Republican has outpolled the Democrat in a national election precisely once in 30 years.

            You no longer can compel a Black man to lower his gaze in the company of a White woman.

            You no longer are permitted to teach fairy tales in legitimate science classrooms.

            Citizens are no longer “aging into” the Republican Party. Decades ago, people become more conservative as they acquired mortgages, spouses, jobs, and children. But no one wakes up at 35, decides ‘I think I am a bigot now.’ and registers as a Republican.

            Church membership and attendance are freefalling.

            The average age of a Republican has become “near death.”

            Liberals dominate our strongest entertainment, educational, communications, and cultural institutions.

            One of the finest achievements of our liberal-libertarian mainstream during my lifetime is that our vestigial bigots no longer wish to be known as bigots, at least not in public. They try to hide behind euphemisms (“traditional values,” “colorblind,” “conservative values,” “heartland”) but they must now guard their positions in public and are entirely defensive.

            Our electorate becomes less religious, less rural, less backward, less bigoted, and less White every day.

            Conservatives are disaffected and increasingly desperate, having changed from ‘our preferences will govern American society’ to ‘we want the right to cling to bigotry and avoid compliance with general laws.’

            Soon, the three elements of Republican-conservative electoral strategy — gerrymandering, voter suppression, and our system’s structural amplification of hayseed votes — will no longer be enough to enable Republican candidates to be competitive in national elections.

            Guns? Gun nuts will be overrun by a mainstream backlash when the conservative electoral coalition capsizes. Most Americans favor reasonable gun safety measures; soon enough, they will prevail. (If we are fortunate and wise, the right to possess a reasonable firearm for self-defense in the home will survive the snapback.)

            Anti-abortion absolutists will experience similar failure consequent to hitching their political wagon to the losing side of the culture war.

            The American culture war is not over but it has been settled. The clingers have lost.

  17. Without looking at the comments, I’ll guess that this is major Kirkland-bait.

    Can he tell us where the idea of hospitals come from?

    1. Wow, his was right above me, weird.

      1. I’m surprised it took AK this long to respond…

    2. Cal, I consider Arthur’s inflammatory rhetoric largely unhelpful and I wish he would stop, but I do agree with him that religion is bunk. And the fact that it occasionally does good things (and lots of bad things too, by the way) doesn’t change that. Even a stopped clock is right twice a day.

      1. People should be entitled to believe as they wish. That right should be defended and advanced, strenuously. To the extent religion bring comfort to people or inclines them toward good works, that is good. (Overall, if one is charitable, religion may be seen as roughly a wash from the perspective of good and bad precipitated by superstition.)

        Adults are not entitled to have religion-sourced assertions treated with respect in reasoned debate, however. Competent adults neither advance nor accept superstition-based positions or claims in reasoned debate, especially with respect to public affairs.

  18. The parents should be prosecuted for murder. Then the other children can be taken away without any constitutional issues.

    1. But there is a state law that specifically exempts failure to treat a child based on religious beliefs from legal consequences. I myself do not think allowing freedom of religion to go that far is good public policy. But the Michigan legislature has decided otherwise. The parents are entitled to the benefit of the law as the Michigan legislature enacted it, whether you or I think the law good policy or not.

      1. The Constitution didn’t require an exemption here. The State Legislature created one for “legitimate religious beliefs.”

        The only question for the courts was what the “legitimate” qualifier means. I agree that the Religion Clauses compell a reading that “legitimate” religious beliefs can only mean beliefs that are sincerely held, even if coming from an individual’s own interpretation of scripture. The trial court interpreted “legitimate” as meaning that the beliefs have to be doctrines of an organized church, and held that because the parents were “rolling their own,” doctrinally, their beliefs were not “legitimate.” It is clear, and the Michigan Court of Appeals had no choice but to rule, that such an interpretation is flatly inconsistent with long-standing Supreme Court precedent.

        If Michigan’s religious exemption is too broad, it is for that state’s legislature to narrow it. It is free to do so and the Constitution poses no pbstacle. With the law as it is, however, the courts’ hands are tied. And I say this as someone who does not think an exemption for things like this is good policy, even though I normally favor broad interpretations of freedom of religion.

        1. Totally agree.

          There is a large cohort here that sees judges as philosopher-kings to arrive at the “most-just” outcome regardless of the law.

          And by most-just I mean what their personal preference would be. They would hardly be happy with a conservative philosopher-king ruling in an abortion case, overruling the law of the land because he thought the life of a viable fetus was sacrosanct. I might sympathize, but my philosopher-king instincts are reserved for insects and rodents.

      2. State law exempts them from child negligent charges, not blanket criminal immunity.

        1. But what would be the theory of murder here?

          The situation doesn’t seem to be any different from a living will. There also, a statute which exempts a doctor from liability also exempts the doctor from murder charges. Why is this any different? The state has let the parents, in effect, sign a living will on the child’s behalf. Exactly as in the living will case, the underlying disease causes the death, and doing nothing and not intervening is not considered the same as actively causing the death. The statute here repeals the common-law duty for parents to intervene in the same way a living will statute repeals the common-law duty for doctors when its conditions are met.

          I would agree with you that it’s eminently rational to think the state’s interest in children is greater than its interest in adults and that parents’ authority to make decisions for their children shouldn’t be as absolute as adults’ authority to make decisions for themselves. However, like it or not, the opposite view is also rational. Nothing in the constitution prevents a legislature from choosing either view.

          Again, I don’t agree with this policy. But if I were a judge in this case my oath would compel me to give effect to the legislature’s clearly stated policy choice, however much I disliked it, rather than search for ways to undermine it and impose my own view.

          Judges are entitled to occassionally recommend to the legislature that they consider changing the law, esspecially where they find the law as it stands repsive. This case might well be an appropriate vehicle for such a recommendation. But especially in cases like these where people have sharply considered moral views, each strongly held, it is generally for the legislature to decide between them, and a judge’s oath of office compels accepting the law as it is, not as one wants it to be.

    2. The parents are being prosecuted for murder and I hope they’re convicted.

      I also hope in light of this decision that the Michigan legislature rewrites this awful statute.

  19. The State of Michigan is free to create exceptions to its exemption for, for example, emergency treatment to prevent imminent death. It’s well established that such an exception would serve a compelling state interest and override religious rights under even very strong conceptions of them. And such exceptions may well be advisable.

    However, any exceptions it may decide to make have to based on the nature of the medical circumstances, not the nature of the religion. In the meanwhile, the existing law is what it is, not what the trial court judge may want it to be.

    The Court of Appeals is therefore correct that a “legitimate” religious belief, whatever the term may mean in Michigan law, cannot constitutionally refer to religions and beliefs that the trial court judge thinks legitimate.

    1. I came out much the same way as you did. It is not the law I personally would have written. The MI state legislature did. They must change it (if they want to).

      In my religious tradition, we are commanded to choose life.

  20. It appears the criminal proceedings — including murder charges — are distinct from this civil proceeding.

    The described circumstances indicate these parents should be convicted of criminal homicide and child abuse. That would rescue the other children, too.

  21. A system which permits to this extent the privileging of certain beliefs due ultimately to the fact that they are fervently held, is morally and epistemologically broken.

  22. “However, those beliefs are not supported by any law, doctrine, or cannon of any religion.”

    I want a religion that has cannons!

    I think they meant “canon”. Not EV’s fault, but still painful to see in a judge’s opinion.

    I can’t believe I’m the first person to comment on this…

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