FindLaw's Writ - February 4, 2009
by Sherry F. Colb | FindLaw Columnist
In March of last year, an eleven-year-old girl died of untreated diabetes, while her parents prayed for her recovery and chose not to consult a medical professional. The medical consensus is that Madeline Kara Neumann (who was known by her middle name) probably took about a month to die – in terrible pain, wasting away to 65 pounds by the end – and that insulin and intravenous fluids would have saved her young life.
Prosecutors subsequently charged Kara's parents with second-degree reckless homicide under Wisconsin law for failing to prevent her death. Last month, the judge in their case rejected the defense's argument that the prosecution was violating the couple's rights to religious freedom. As a matter of law, this ruling is uncontroversial. Yet the case raises the more difficult and broader question of how the law should treat anti-social behavior that is motivated by religious faith.
Kara Neumann's Case
The First Amendment argument for the Neumanns' faith-healing defense is quite weak. The U.S. Supreme Court has said, in Employment Div. v. Smith, that the First Amendment's Free Exercise Clause does not entitle religious actors to an exemption from the even-handed application of generally applicable laws; it entitles them only to be free from discrimination based on religion. For this reason, in Smith itself, the Court found no First Amendment right on the part of Native Americans to use peyote, even though the peyote ritual is part of a Native-American religious tradition.
One could (and many did) fault the Supreme Court in Smith for its failure to understand the distinction between requesting a special exemption from a generally applicable law, and calling for the Court's recognition that a forbidden religious practice (such as using peyote) might be meaningfully equivalent to lawful, majority-religion practices (such as drinking wine as a sacrament). Some outrage likely flowed as well from the view that the religious use of peyote is innocuous. The same, of course, cannot be said for the faith-based neglect of a child's medical needs.
Moreover, even under the more robust Free Exercise regime that preceded the religious neutrality of Smith, the Court had held that parents may not invoke religious faith as a defense against the enforcement of laws that protect the welfare of minor children. In Prince v. Massachusetts, for example, Jehovah's Witness parents failed in their legal efforts to defend the practice of having their children distribute pamphlets for their faith, in violation of the state's child labor laws. Though distributing pamphlets is arguably not very harmful to children, the principle the Court announced was straightforward and uncompromising: The state's interest in protecting the welfare of children trumps the religious interests of parents, when the two collide.
The Neumanns may nonetheless have an argument based directly on Wisconsin law. The Wisconsin statute prohibiting child abuse or neglect provides: "A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing …in lieu of medical or surgical treatment." Though the state has charged the Neumanns with reckless homicide (rather than charging them under the child abuse or neglect statute, in which the exemption appears), the exemption could nonetheless be read to inform the meaning of the homicide law as well, when the death at issue results from exclusive reliance on prayer in lieu of medicine to "treat" one's child's illness. If the Neumanns are convicted, this statutory exemption might therefore pose a challenge to prosecutors defending the judgment on appeal.
How Should the Law React?
We might have a variety of reactions to a case like this. One possibility would be to attack the legitimacy of religious exemptions in laws that prohibit child abuse or neglect. There is no justification for child abuse and neglect, no matter how sincere the parent's religious motivation. To take an example from the Bible, Abraham should not have prepared to kill his son Isaac, no matter what he believed the divine will to be. Though he may have "passed" the test of his faith, in other words, he would plainly fail the test of parenthood and of membership in any civilized modern community.
Alternatively, we could take a second position, more sympathetic to Kara's parents but nonetheless critical of their conduct. We could excuse or partially excuse the parent who fails to seek out medical care for his child because of a faith in prayer. To excuse from criminal responsibility (or to reduce the severity of the charge) is not to justify a parent's acting as he did.
Through the recognition of an excuse, we could condemn the behavior of the Neumanns, who prayed rather than take their daughter to a doctor, while simultaneously treating their belief in the supernatural power of prayer as a kind of disability or impairment that compromised their capacity to obey the law. Like Andrea Yates – who drowned her five children in the grip of delusions generated by post-partum psychosis – the parents here apparently loved their child and wanted to do right by her but felt compelled to act as they did by belief in the supernatural.
Though something short of insanity, one could argue that diminished capacity reduced the culpability of the defendants. I am most drawn to this way of viewing the facts of this case, as it tempers justice with mercy.
Third, we could argue that so long as people believe in good faith that they are carrying out the mandates of heaven, we should not punish them for doing what they do. To take the Abraham example again, many people study the test of Abraham's faith and admire his conduct. Though Abraham loved and treasured his son, he would do what his God required, no matter what.
For those who accept such total faith as right and proper, the only difference between Isaac's father Abraham and Kara's parents is that Abraham was "right" to trust in his vision of God and the Neumanns were "wrong" to trust in theirs. Such a distinction, of course, cannot ground the law in a society that values religious pluralism.
No matter how destructive or senseless it might seem to many secular people, religious liberty – on this view – requires an extremely high level of autonomy for practicing one's faith, regardless of how familiar or foreign that faith might be. Indeed, such practices might be deemed lawful and accepted if they were part of the majority's religious tradition, rather than a small minority's set of beliefs. Freedom of conscience should not, one might contend, depend on how many others follow the same religion.
The very skepticism that ordinarily animates secular thinking should perhaps curb the willingness to incarcerate people whose belief system – even including their supernatural belief system – differs, however drastically, from that of the group.
Religion, the Supernatural, and the Facts
The story of Kara Neumann is, without question, terribly sad. Furthermore, in considering Kara's plight, it is hard to avoid thinking about what the impact might be on other children if her parents are not punished for their conduct. Such an outcome could, for example, liberate some religious (and not-so-religious) people to use physical violence, in the name of the Bible, against their children for insubordination ("He who spares the rod, spoils the child"; "whoever curses father or mother shall be put to death"). And an acquittal might further reduce the pressure on everyone – religious and nonreligious alike – to conform their conduct to laws with which they disagree.
If our focus is on the future, it might seem most prudent to prosecute the Neumanns to the full extent of the law and send the message that parents must care for their children. The very existence of the Wisconsin prayer exception to the child abuse or neglect statute arguably invites what most of us would view as intolerable misconduct.
Consider, however, the perspective of Kara's parents. They – assuming the sincerity of their faith – honestly thought that praying would heal their daughter. While praying, the father's faith apparently wavered for a moment – one in which he asked the mother whether they should go to a doctor – but then their faith grew stronger. Once Kara died, her parents said that their faith must not have been strong enough.
When told there would later be an autopsy, their reaction was to say that Kara would be resurrected before any autopsy would take place. Leilani and Dale Neumann are suffering the loss of their child. It is perhaps unduly cruel to add to their loss with severe criminal punishment, when they never meant to harm her.
Maybe the Neumanns are like a person suffering from a delusional disorder who smothers his child, believing that he is actually rescuing him. To some, the Neumanns seem truly insane and thus deserving of pity, rather than punishment. If we view them as unable to have acted differently, however, it is difficult to justify leaving their other three children in their care. Though the children have apparently not been abused, it may not be in their best interests to live with people who are delusional enough to bring about the entirely avoidable death of their sibling through neglect.
To say that the Neumanns are "otherwise good parents," as some have said, is thus at odds with the theory that they are impaired and should therefore be excused or partially excused from the consequences of committing what would otherwise have been reckless homicide.
Another excuse for the Neumanns might be their ignorance. If they are not psychologically impaired, they do seem to be significantly uninformed about disease. They apparently believe (as most people on earth once believed) that disease can be cured through faith and prayer. Like the many parents in the 1970's who believed that antibiotics would cure their children's cold viruses (and who in the process bred a variety of resistant bacteria or "superbugs") and (perhaps) like the parents who believe that vaccines cause autism (and thus expose the vulnerable among the U.S. population to such diseases as whooping cough and measles), the Neumanns simply had the facts wrong. Ignorance in this case was tragic but perhaps should not be harshly punished.
There is, however, the third possibility – that religious motivation makes otherwise criminal conduct acceptable. This may be the most worrisome (to this writer) of the three exculpatory options, and the one that is disturbingly captured in the Wisconsin religious exemption from child abuse or neglect law. Rather than simply allow that mentally impaired and ignorant people might have an excuse for what is uncontroversially wrongful conduct, the Wisconsin law suggests, in advance of any abuse or neglect, that prayer could be a legitimate and legally-protected alternative to medical treatment or surgery. Such a law appears to embrace the notion that faith in the supernatural relieves people of their obligation to provide care to the children in their custody.
Though a case like Kara's may be relatively unusual, the collision between secular and scientifically-based knowledge, on the one hand, and religious faith, on the other, is not. Battles wage, for example, regarding whether children should learn about evolution in the public schools or whether they should be kept ignorant of the science and told instead of God's "intelligent design". And religiously-motivated practices like circumcision for boys and clitoridectomy for girls have increasingly struck people who reject the practices as barbaric mutilation in the service of supernatural delusion.
The violent reaction of some groups to women who terminate their pregnancies (and to the medical clinics where abortions take place) exemplify religious zealotry in a country where the law of many states explicitly equates the moral status of a one-celled fertilized egg with that of a fully-formed baby (with exceptions – for the moment – for abortion). And finally, much of the violence waged around the world as holy war proceeds from a belief that God has willed it.
At the same time, it is important to recognize the pro-social contributions of religiously-motivated individuals and groups. It was religious leaders who played a critical role in the fight to abolish slavery, the struggle to extend civil rights to people of color, and the modern movement to abolish the death penalty. The feelings of compulsion to which religion can give rise in its followers have accordingly represented a powerful force for good as well as for ill in our history. As such, it would be unfair – and at odds with the language of the First Amendment protection for the free exercise of religion – to be entirely unmoved by an actor's religious motivations.
A case like Kara Neumann's thus poses questions far more difficult than might be apparent at first glance. Religion is firmly entrenched in our midst, and there are those – here and elsewhere – who would do violence, kill, and die for what their faith tells them is right. There are, too, those who use religion as a platform for positive, humanitarian social change. Perhaps the most striking fact about the Neumanns, viewed in this way, is that they apparently did not mean for any harm to befall their daughter. They were not trying to discipline her, teach her a lesson, or deprive her of what she needed. They loved her and had, until this tragic episode, apparently taken good care of her. They thought that God would protect Kara, if only they prayed hard enough. By comparison to other, more aggressive zealots, their tragically misguided conduct might seem, in relative terms, far less malevolent.
Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is
currently available on Amazon. This article was found at:
http://writ.news.findlaw.com/colb/20090204.html
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