Balancing rights makes faith-healing bills thorny

Lawmakers find that protecting the health of kids whose parents rely on spiritual treatments is a deeply complicated matter

The Oregonian, June 28, 1999
By Mark Larabee

SALEM -- It seemed simple enough.

A bipartisan group of 26 Oregon lawmakers in January signed on to two bills designed to protect the children of faith-healing parents.

Many were outraged by more than 70 child deaths in the Oregon City Followers of Christ Church and about the Clackamas County district attorney's claims that she was unable to prosecute parents because of flaws in state law.

The bills were designed to erase legal defenses in the state's homicide and child-abuse statutes, sending a clear message to faith-healing parents that they cannot practice their religion to the point their children are permanently harmed or, worse, die.

The idea seemed headed for an easy ride through the statehouse. Today, lawmakers realize the issue isn't so simple.

Beyond protecting the faith healers' children, they are struggling to balance fundamental issues of parental rights and religious freedom.

Tilting the debate further is the Christian Science Church -- the nation's foremost religious group relying on spiritual healing methods -- whose well-managed, informed lobbying caused even liberal Democrats to see another side.

Still others are concerned that eliminating the defenses from homicide statutes that are reserved for the most heinous murderers would subject faith healers to long, mandatory prison sentences required by Measure 11, a fate prosecutors say they don't want and can never see getting past a jury.

To understand the conundrum, people have to understand current law. It recognizes parents who try to heal their children solely with prayer by including legal defenses for most degrees of homicide and child abuse.

If children are permanently injured or if they die, and the parents prove to a judge or jury that their faith governed their actions, they are immune from criminal liability.

When Clackamas County District Attorney Terry Gustafson said last year that she could not prosecute the faith-healing parents of an 11-year-old Oregon City boy who died because the law was flawed, it set off a firestorm of debate.

Many experts, including other Oregon district attorneys and Attorney General Hardy Myers, think Gustafson was wrong. She could have charged the parents with "criminally negligent homicide," the only form of homicide that does not include the spiritual defense, they said. But after researching the legal issue, Gustafson wouldn't budge, concerned that she would violate the parents' due process rights.

In response, Reps. Kathy Lowe, D-Milwaukie, and Bruce Starr, R-Hillsboro, introduced separate bills this session that quickly gathered bipartisan support and momentum. Their aim was to repeal the religious defenses in the homicide and child-abuse statutes, putting everyone on a level playing field when it came to medical care for a sick or injured child. The bills were combined into House Bill 2494. Thus began the balancing act.

"It's very hard to separate all those factors," said Rep. Kevin Mannix, R-Salem, chairman of the House Judiciary Committee on Criminal Law. "There's a desire to protect legitimate religious beliefs, and sometimes it's hard to draw the line between belief and practice."

It was so tough that of the 165 bills the committee's four Republicans and three Democrats have approved this session, Mannix said faith healing was the only one in which a bipartisan accord could not be reached.

So the group submitted two versions to the House: one that repealed all the religious defenses; and another that changed the criminally negligent homicide statute to address Gustafson's concerns, leaving in defenses for murder and manslaughter.

In May, the House passed the first version on a mixed vote. Some original sponsors voted against it.

Christian Science influence

When Mannix had the first hearings in March, two Christian Scientists barely got time to speak.

As they have in other states where faith-healing practices have come under fire, church lobbyists targeted key legislators with e-mail, phone calls and office visits. Their message was clear: Healing through prayer is a recognized, proven form of health care. The Constitution guarantees religious freedoms, and therefore, they should be accommodated.

By the time the Senate Judiciary Committee began hearings last month, Christian Scientists had been so persuasive they were invited to help lawmakers understand their point of view. At one meeting, eight church members, including attorneys and other experts, convinced senators spiritual healing cannot be ignored.

"This was a grass-roots lobbying effort that matched, if not exceeded, the drive that the National Rifle Association had on the gun issue," said John Horton, a Multnomah County prosecutor and legal adviser to the House Judiciary Committee on Criminal Law.

Rep. Floyd Prozanski, D-Eugene, said his meetings with Christian Scientists were focused and thought-provoking. Sen. Kate Brown, D-Portland, said conversations with church members tempered her initial "radical" views, and she now realizes parents' religious freedoms also need to be considered, though they shouldn't outweigh a child's right to life.

"We want healthy, strong and happy kids," said Bruce Fitzwater, the church's Oregon representative. "We think that spiritual treatment has a large place for some families, and we want that open to everybody within the constraints of the law."

Christian Science parents are under the added burden of prosecution if their healing methods fail, but if a child dies in a hospital, those parents have no worries that they will be taken to court in the death, he said.

But Rita Swan, president of Iowa-based Children's Healthcare is a Legal Duty and a former Christian Scientist, said faith healing should not be placed on an equal footing with conventional medical care because it lacks scientific verification that it works.

She also warns that Christian Scientists are coached on how to reply when public officials and social workers question their methods by using terminology from medical science. "They call their spiritual healers 'practitioners,' their prayers 'treatments,' and those they pray for their 'patients,' " she said.

Measure 11

Another tripwire in the debate came when lawmakers realized that by removing the religious defenses to the most serious forms of homicide, faith-healing parents could be subjected to long prison terms if convicted of murder or manslaughter, which carry mandatory minimum penalties under voter-approved Measure 11.

"We did not want this to become a Measure 11 offense because the parents believe they are acting in the best interest of their child, and that should be a factor in sentencing," said Sen. Neil Bryant, R-Bend, chairman of the Senate Judiciary Committee. "We'll give that parent great latitude except when the child's permanent health is a risk."

So when the Senate Judiciary Committee passed its version of the bill last week, what emerged was a flip-flop of what the House approved, restoring most of the spiritual-healing defenses the House had struck in cases of murder and first-degree manslaughter.

Swan is disappointed in what the committee did. "Its version changes the standard from requiring 'medical care' to 'health care' and repeals only three religious exemptions of the nine repealed by the original bill," she said.

To deal with the issue Gustafson raised, the committee also recommended a rewrite of Measure 11's sentencing guidelines for second-degree manslaughter, but only in faith-healing cases.

That change presents its own political hurdle, requiring a two-thirds vote to override a voter-approved law -- 20 votes in the Senate and 40 in the House -- a tall order for any bill.

The full Senate is expected to vote this week. Most think the bill will pass and go to a conference committee of the House and Senate, where yet another compromise will be attempted.

But Lowe thinks the children of faith healers lost the legislative battle early in the process, when the debate shifted from protecting children to protecting parents and religious rights.

"This is my baby, but it's not what I conceived," she said. "The debate became that we don't want to trample these parents' religious rights. We've got a duty to protect all the people of Oregon, including the children."

But others, including Starr, disagree. He hopes a conference committee will find middle ground.

"I want enough of a threat that the state will charge (faith-healing) parents so that parents will change their behavior," he said. "I don't think the children are going to lose."