Journal Sentinel - Milwaukee, Wisconsin June 26, 2009
Groups argue religious vs. children's rights
By Annysa Johnson of the Journal Sentinel
Doug and Rita Swan were lifelong Christian Scientists when their 16-month-old son died of meningitis in 1977. In keeping with their faith, the couple turned not to doctors, but to prayer, in their failed attempts to save their child.
In the decades since his death, the Swans have crisscrossed the country working to repeal state protections for faith healing, almost always doing battle with their former church.
This summer, a year after a Wisconsin girl died of untreated diabetes in a faith-healing case, the battle moves to Wisconsin, where the Swans and Christian Scientists are lobbying for competing bills now being drafted in the Legislature.
Both measures - one to be introduced by Sen. Lena Taylor (D-Milwaukee), the other by Rep. Terese Berceau (D-Madison) - would repeal the exemption secured by Christian Scientists in 1987 that prohibits prosecutors from charging parents with child abuse or neglect in cases where they opted for prayer over medicine.
But each contains provisions that would shift the current balance among freedom of religion, parental rights and the rights of children to health and safety - a shift with potentially constitutional consequences.
"We have two competing bills that strike fundamentally different balances," said Peter Rofes, a constitutional law professor at Marquette University Law School, who reviewed the drafts for the Journal Sentinel.
"One, by limiting the scope of parental authority, could implicate the constitutional right of parents and families, including the right to freely execute their religious beliefs . . . as well as their due process rights in raising children," he said.
"The other could conceivably be viewed as undervaluing the constitutional rights of grievously ill minors."
The debate comes a month after a Marathon County jury convicted Leilani Neumann of second-degree reckless homicide in the death of her 11-year-old daughter Madeline Kara, who died of untreated diabetes in March 2008. Neumann is scheduled to be sentenced in October. Her husband, Dale, is awaiting trial on an identical charge.
Although the Neumanns are not Christian Scientists, such cases and the legislative backlash they sometimes provoke have broad ramifications for the church, which advocates healing by prayer.
According to drafts of the proposed bills:
• Taylor's measure would create a provision to allow parents to present an affirmative defense in faith healing cases in which they've been criminally charged. It includes a litany of factors deemed relevant in determining whether their actions were reasonable, including whether the parent should have known the condition was life-threatening, the risks and side effects of medical treatment and the family's prior experiences with spiritual healing.
• Berceau's bill would, by omitting the exemption, allow child welfare workers to consider faith healing along with other factors in determining whether abuse or neglect has occurred or is likely to. It opens the door for a court to require medical treatment for a Christian Science child, though not an adult.
Christian Scientist lobbyist Joe Farkas said that the Taylor bill allows those who believe in faith healing the same right to present a defense that other criminal defendants enjoy and that Berceau's provisions goes too far in restricting religion.
"State law is quite clear about what the standard of care is in all serious cases," he said. "There's no need to restrict parents' ability to use spiritual means in everyday life."
The Swans and others say that the Berceau bill lets the state step in before a child has died, and that Taylor's bill would make it all but impossible to prosecute parents in faith-healing cases.
"The bill is a wish list of Christian Science defenses," said Shawn Peters, a University of Wisconsin-Madison lecturer and author of "When Prayer Fails: Faith Healing, Children and the Law."
"It puts the law on the side of the parents and not on the side of children in a way no other state has done."
State faith-healing exemptions date to the 1970s, when the U.S. Department of Health, Education and Welfare required them as prerequisites for some federal funding.
Several states have repealed them in recent years, often after high-profile court cases, according to Rita Swan, co-founder of the Iowa-based nonprofit Children's Healthcare is a Legal Duty, or CHILD Inc.
Farkas said nine states have adopted affirmative defense statutes.
"It's an issue of fundamental fairness," he said.
But the state must also consider what's fair to the child," Berceau said.
"The bottom line to me is that no child should ever die because a parent didn't take them to a doctor when a reasonable parent would have known it was a life-threatening condition," she said. "No child should have to die because of a parent's religion."
This article was found at:
http://www.jsonline.com/features/religion/49284187.html
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