A REPEAL BILL

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A Bill to prevent religious-based child deaths in IdahoReligious exemption laws have contributed to innumerable preventable deaths of children nationwide. They have encouraged parents and faith leaders to believe that the state approves of depriving sick children of medical care—that exclusive reliance on prayer and ritual for healing is not only legal but safe. They have discouraged would-be reporters from reporting cases of religion based medical neglect of children. They have discouraged law enforcement from investigating and prosecutors from filing charges. They have tied up some cases in the court system for many years when prosecutors in other states have filed charges.

Idaho has four religious exemptions pertaining to medical care of sick children. Idaho’s religious defense to criminal injury and manslaughter, Idaho Code 18-1501-4 gives religious objectors the legal right to let their child die without providing medical care. This shocking law has been a death sentence for children, but there is no evidence that legislators even discussed it. It was a provision of SB1626, which passed the Senate in 1972 the same day it was introduced and passed the House unanimously three days later.

The Constitution’s guarantee of religious freedom does not include a right to abuse or neglect a child. The U.S. Supreme Court ruled seventy years ago, “The right to practice religion freely does not include liberty to expose the community or child to communicable disease, or the latter to ill health or death…. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Prince v. Massachusetts, 321 U.S. 158 (1944)

Section 1 of the proposed bill repeals Idaho’s religious exemption in the definition of neglect at § 16-1602(28)(a). This law describes prayer as“treatment” that is a legal substitute for medical care of sick children. It conveys the impression that a child deprived of medical care is not neglected because he’s getting a spiritual “treatment” instead.

It is important to repeal a religious exemption in the definition of neglect so that mandated reporters, relatives, and other observers know that they must report cases of children being deprived of necessary medical care to child welfare services.

Section 2 repeals Idaho’s ambiguous religious exemption from court authorization for emergency medical treatment at § 16-1627(3). The law requires the court to “take into consideration” any spiritual treatment being given to the child. What does that mean? Is the judge supposed to determine whether prayer will heal the child? Should the judge decline to order emergency medical treatment because people are praying for the child? The U.S. Supreme Court has ruled, “The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief.” County of Allegheny v. ACLU, 492 U.S. 573, 593 – 94 (1989) Idaho should not require judges to determine whether prayer will heal a disease, especially in a proceeding on ordering emergency medical treatment.

Section 3 repeals Idaho’s religious defense to non-support at § 18-401(2). The law compromises protection of children especially in custody cases where one parent believes in faith healing and the other doesn’t. Idaho should not excuse a parent from paying for necessary medical care of his or her child.

Section 4 repeals Idaho’s religious defense to criminal injury of a child at § 18-1501(4). This law allows religious objector parents to willfully cause or allow the child’s health or body to be injured in conditions “likely to produce great bodily harm or death.”

The law also prevents criminal charges from being filed when the child dies because of religion-based medical neglect. This is because manslaughter at Idaho Code § 18-4006(2) requires that “an unlawful act” has been committed. To prove a manslaughter charge in a case of fatal child neglect, the prosecutor has to prove that criminal injury has been committed. Idaho is one of only nine states with a religious defense to manslaughter.

All of these laws privilege the most extreme behavior. They insulate a parent from criminal and civil liability if and only if the parent relies on “spiritual means alone.” If the parent uses any other means to try to heal or get relief for the child, s/he loses the exemption. If the parent combines prayer with orange juice or a cool bath to bring down a fever, if the parent gives herbs as well as ritual, if the parent relies exclusively on prayer for a week and then calls 911 in desperation, the parent loses the exemption.

Idaho used to have laws requiring all parents to provide necessary medical care. In 1915 when Idaho parents withheld lifesaving medical care from their child on religious grounds, criminal charges were filed. “Girl dies from neglect,” IdahoRegister, December 28, 1915. But no criminal charges have been filed in cases of religion-based medical neglect since Idaho enacted these religious exemption laws. In one case police even refused to report the child’s situation to Child Protection Services. Jesse Nance, “Police called in medical case,” Idaho Press-Tribune, July16, 2010. The Canyon County coroner told an Oregon TV station in 2011 that she doesn’t do autopsies on children who die in faith-healing sects, presumably because the law requires autopsies only when a crime is suspected. Dan Tilkin, “Man speaks out about child deaths in NW faith-healing church,” KATU-TV, Nov. 15, 2011. Many Idaho public officials assume that parents have a legal right to withhold medical care from children on religious grounds.

Of the 612 graves in Peaceful Valley Cemetery, one of many used by an anti-medical sect, 210 are of minor children. The majority of the children died after Idaho enacted these religious exemption laws. Idaho should repeal these laws immediately. Idaho should give its children the equal protection of the law and send a message that all parents have a duty to provide sick and injured children with medical care necessary for their health and well-being. The lives of many children are at stake.

Read the proposed bill text
Contact your Idaho legislator