My good friend Dana Yost made a lengthy comment on my recent blog regarding the rights of parents to choose prayer over medical treatment for their children. I admitted at the outset of that blog that this is a perplexing issue and the “conclusion” at the end of the blog Dana refers to is really a question. I tend to go back and forth on this issue, but I do want to defend my original position a bit further, if I can. I will begin with Dana’s comment, which will make this blog a bit long:
Hugh, you are right in that there are some delicate First Amendment rights to consider here. But I disagree with your final conclusion that the state should not step in, or charge the parents. Depriving the child of medical care — no matter how much the parents believe in the power of prayer — is equivalent to child abuse, to locking a kid in a basement, etc. In this day and age when the effects of medical care are widely known and easily accessible, the crime would probably be negligent homicide. The parents have the right to practice their religion and refuse medical care for themselves, but do they really have that right to lead their child to death through their religious practices? I don’t think so — at some point, if one person’s religious beliefs intrude on the health or safety of another (even their own child), it is no longer a matter of protecting the parents’ First Amendment rights (as essential as they may be), but saving the life of another human. If someone were to practice a form of religion that called for child sacrifice — something Incan or Mayan or even like Jonestown, say — we surely would not permit them to burn their kid on a pyre or drink cyanide-laced Kool Aid.
The state has a deep obligation to look out for any child’s welfare, and there is much precedence to permit it. There are policies, positions in place within the legal system that do this, even when a child has both parents. Guardians ad litem can be assigned by a judge to represent the kid in court during custody proceedings, during cases where parents are accused of crimes, etc. Social services obviously has many methods of interceding on a child’s behalf when the kid’s health, education, etc., are being affected.
The parents should not lose their First Amendment rights to practice their religion. But they should lose their rights to be parents. They can continue to practice their religion in prison, but their kids should be allowed to at least live long enough to reach that “age of reason” so they can decide for themselves if they want to follow their parents’ religion. This kid never had the chance. That is most definitely a crime.
There are multiple issues here, including the First Amendment rights of the parents. The precedents don’t affect the argument, because the initial case may have been flawed and subsequent cases based on that decision may simply perpetuate the mistake. Dana facetiously (I think) draws the analogy of “child sacrifice” as a religious right and I thought I had dealt with that in the original blog. Clear cases of child abuse do constitute grounds for state involvement in removing a child from the parents’ care. However, this does raise the second critical issue: paternalism. At what point does the state have a right to step in and take a child from his parents for the child’s own good? It is a very tough call. I have admitted the case of blatant child abuse, where the child is kept in a basement (Dana’s example). But the issue of paternalism rests on the legitimate concern of the illicit extension of state power. As Mill pointed out — and we have seen countless times –the political state has a natural (unnatural?) tendency to extend its power, especially when citizens are the least bit unwary. There are cases of child-welfare personnel threatening to remove children from their parents because their children have falsely accused them of child abuse. So even those cases must be carefully scrutinized. At the very least the burden of proof is always on the state to prove abuse on the part of parents. And if we really care about the children, what about the possible trauma to those seven kids who were taken from the “unfit” parents mentioned in the original blog and who will now be placed in a foster home? The article suggests that the family is — or was — very close. We must not let our emotions run away with us. But I want to remain focused on the matter of paternalism on the part of the civil state.
Given the tendency of the state to extend its power, we need to be clear that there are lines beyond which that power should not cross. And I suggest that parental control of children is one such area — with the obvious exceptions mentioned above. As Mill noted, we need to err on the side of the individual in all cases since their power over the state is minimal. I would argue, for example, that the state ought never to interfere in such personal matters as requiring motorcycle helmets and seat belts — if people are stupid enough to go without protection they hurt only themselves. It’s the price we pay for freedom. It is a mistake to think that whenever an individual might get hurt the state ought to intervene and protect that individual even against himself. That is the paradigm case of paternalism. And a parents’ duties to the children are not something the political body can define; they are for the individuals themselves and their churches (in this case) to decide. If those individuals choose to do stupid things, even if those stupid things affect their children’s health and well-being, and, especially as in this case, those actions are based on convictions that are deeply and sincerely held, then the state must back off and allow terrible things to happen. After all, the New Testament is full of examples of faith-healing: can anyone presume to know for certain that prayer cannot be effective? On the contrary. And isn’t it the case that a great many terrible things have happened in hospitals and doctors’ offices — presumably by mistake?
I do not think this is as simple a case as many seem to assume and I may change my view tomorrow. My goal here is to play the gadfly. But I confess that while I think the state has a responsibility to protect its citizens from powers over which they have little or no control — such as the attacks on the environment by wealthy corporations — I cannot see that the state has any right to protect us from ourselves or to protect children from their parents (except in extreme cases of proven abuse, as noted). As a general rule I have less confidence in representatives of the state doing the right thing by children than I do the parents of children they love. In the end, I do worry about the abuse of state power and the right to genuine religious freedom — even if I do not approve of what is done in the name of that religion.