Idaho’s religious shield law and tragic child deaths

By Nick Gier
Reader Columnist

Editor’s note: this version of Mr. Gier’s column is an expanded version from the one currently in print.

An adult’s religious freedom crosses the
line when it causes death to a child.

–Child Activist Linda Martin

These children do not die quietly in their sleep.
They suffer for days, weeks, or months.
—Linda Martin

Parents may be free to become martyrs themselves.
But it does not follow they are free to make martyrs of their children.
—Prince v. Massachusetts, 321 U. S. 158 (1944)

Dead children don’t care about the First Amendment.
—John Gannon, Idaho Democratic Legislature

Forty to 100 Idahoans die each year because they have no health insurance. The primary cause of this senseless tragedy is the Republican Legislature’s refusal to extend Medicaid to 78,000 Idahoans. Regarding preventable deaths, the U. S. ranks last among 16 high-income industrialized nations.

Hundreds of Idaho’s children have died because of Idaho’s religious shield law, which prevents the prosecution of parents who fail to provide medical care for their sons and daughters. Even though the Governor’s Task Force on Children at Risk has recommended changes to this law, a legislative committee assigned to study the issue this summer adjourned without doing anything.

Legislative Committee on Religious Exemption Fails to Act

Appearing before this committee, a member of the Followers of Christ testified that his church believes that children are property, and that they do not seek medical care because doctors are from the Devil.  Child activist Linda Martin, a former member of this fanatical sect, claims that two of this man’s children died of untreated pneumonia.

“Pro-life” legislators are fiercely committed to the unborn, but they appear to give less value to their lives after birth.  There are honest differences of opinions about whether the fetus is a person, but there is no question about the issue about children and adults.

Most States Have Removed these Religious Exemptions

In 1972 Idaho passed a law, without any recorded debate, to provided religious exemptions for child medical care. Many states passed similar legislation because then President Richard Nixon’s advisers—John Erlichmann J. R. Haldeman, both Christian Scientists—had insisted that prayer be included an accepted treatment for illness.

In 1987 the Department of Health and Human Services declared that, under the Child Abuse and Treatment Act, such religious exemptions “should not be imposed by federal regulation.” In 2011 Oregon removed the exemption, and since then there have been three convictions for criminal mistreatment, negligent homicide, and second degree manslaughter of children.

Idaho is only one of nine states that still have laws that shield parents from prosecution of negligent homicide, manslaughter, or capital murder. Since 1990, Arizona, Colorado, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, North Carolina, Rhode Island, Oregon, and South Dakota have repealed some or all religious exemptions for medical care for a sick child.  Some states still allow parents to forego immunizations, but not necessarily for religious reasons.

Graves of Shame: Three Generations of Negligent Homicide

Child activist Linda Martin is touring the state and speaking about the effects of Idaho’s failure to protect its children.  She left the Followers of Christ at the age of 16, and she has testified to the needless child deaths in her family and members of her former church.  Members of Followers of Christ and the Church of the First Born, who also neglect their children, are found primarily in Southwest Idaho.

During a panel discussion in Moscow, Martin showed slides of headstones from Canyon County’s Peaceful Valley Cemetery. Of the 613 graves, 210 were child burial sites. This mortality rate is ten times the Idaho’s pediatric population as a whole.

Some of these children no doubt died from accidents or illnesses that defied treatment, but even with this qualification, this number is totally unacceptable. This is only one cemetery, so there definitely more graves of shame in Idaho.

One of Martin’s cousins died due to a case of untreated pneumonia.  Incredibly enough, the then 9-year-old Martin was blamed for the death because she was misbehaving.  Suffering for ten years, another cousin died because he received no insulin for his diabetes.

One of Martin’s nephews has suffered for years with an untreated rupture. An unrelated 15-year-old girl in the church fell ill from food poisoning. She vomited so hard that she ruptured her esophagus. Without medical care she bled to death.

It is not only the children who suffer. When Martin’s mother was dying, she asked to be taken to a hospital. No one, including her own husband, would honor her request without palliative care.  Most church members who seek medical care for themselves or others are shunned, but some, astonishingly, are not.

Hypocrisy, Discrimination, and the Validity of Religious Exemption

Martin experienced outright hypocrisy and discrimination by some church members.  They would take one child to the doctor but let others expire of treatable medical conditions. Some would neglect their sick children completely, but then seek medical help for their own illnesses. One church elder prayed over members who were ill, denying them medical care, while he sought treatment for prostate cancer.

Martin’s brother chose to have a half million-dollar operation (Idaho’s taxpayers paid the bill) for a heart condition, and her sister-in-law went to a doctor after a stroke. Her brother said that he chose surgery because his congregation’s prayers did not heal this heart. Martin said that none of their children receive medical care and one of them died as a result. Prayer did not appear to work on this child either.

Every American has a First Amendment right to follow her/his own conscience, and to lead a life of religious faith.  We have always held that the integrity and validity of beliefs are unimpeachable, but here we have clear examples of religious belief being used inconsistently and cynically with fatal results. It seems to me that these people have disqualified themselves from claiming a religious exemption.

Tight-Knit Communities and Congenital Illnesses

As I watched the slide show with profound sadness, I noticed that there were many head stones with the name “Shippy” on them.  I asked Martin about this, and she said that were at least 34 child graves with that name. The Followers of Christ are a tight-knit congregation who intermarry and, as a result, there are a high number of congenital illnesses. Under normal circumstances these serious conditions would require intensive and long-term medical care.

Martin’s two-year-old nephew was born with spinal bifida. He was given no physical therapy, and constrictions in his deformed brain caused horrible headaches. He died one month before is third birthday.

Religious Exemption May Violate the Free Exercise Clause

Joining Martin on the Moscow panel was Professor Shaakirrah Sanders, a UI law professor.  Sanders expertly analyzed the First Amendment and two types of protection for religious believers. There is an absolute right to believe or not to believe, but the free exercise clause is relative and limited.  In all cases except these religious exemptions, the religious believer is not excused from following established laws.

Sanders’ most salient point was that religious exemptions for medical care may violate the free exercise clause.  The government cannot prefer one religion over another, nor can it discriminate against people who have no religious faith.  This means that atheists who neglect their children could be prosecuted, but believers are protected by the shield laws.  This is discrimination plain and simple.

Children Have More Rights Than We Think

Sanders reminded her audience that children have more rights than we may think. First and foremost among them is the right to life, liberty, and the pursuit of happiness. They also have free speech rights (in their schools, for example) independent of their parents.

Children also have a right to privacy and the use of their bodies. Parents cannot force their girls to have an abortion, but their daughters do have the right to choose to end their pregnancy.  Just like any adult, they also have a right to believe what they wish, including practicing their own religious faith.

Children have a right to their own legal counsel and the right to petition a court.  With the aid of a guardian ad litem a child could asked a judge to overrule its parents’ refusal to provide medical care.  Sanders argued that as children grow older these rights of personal autonomy become more extensive.

Finally, Sanders contended that the state has a duty to thoroughly investigate all child deaths.  Currently county coroners do not have consistent methods of reporting these cases. The Latah County Child Fatality Team, set up by former Sen. Dan Schmidt when he was coroner, is an exception.

Canyon County Coroner: How Many Child Autopsies?

            In 2011 KBOI2 reported that Canyon County coroner Vicki DeGues-Morris said that she “hasn’t done an autopsy on a Followers of Christ child in years, because in Idaho it’s not illegal for a parent or guardian to choose prayer over medicine as treat for a sick child.” In April of this year, however, county spokesman Decker Jack said that “every single death is reported and autopsies are almost always performed.”

Martin is very skeptical of these claims. She said that typically DeGues-Morris would only interview the parents, sometimes with congregation members in attendance. In one case (and no doubt many more) a request to remove a child’s body for an autopsy was firmly resisted. The coroner simply listed this death as “undetermined.” Martin’s repeated requests for coroner reports have been ignored.

Canyon County requires no permit to bury human remains, and many church children have no birth certificates. In most cases we have no proof of their existence or the nature of their deaths.

Legislation to Repeal Religious Exemption has been Stalled

A bill to repeal the religious exemption has been introduced by Democratic legislator John Gannon. The bill calls for the deletion of this sentence from one section of the Idaho Code: “Treatment by prayer or spiritual means alone shall not for that reason alone be construed to have violated the duty of care to such child.”

Sen. Lee Heider, chairman of the Senate Health and Welfare Committee, said that he would give the bill a hearing, but he reneged on his promise. He finally announced: “Republicans didn’t feel the need to change the laws. We believe in the First Amendment to the Constitution. I don’t think that states have a right to interfere in religions.”

Another attempt in the House Judiciary Committee was also stalled.  In a response to Martin, House Speaker Scott Bedke was frank and forthcoming about his reasons for allowing the bill to die.  He said that it was too controversial and there was no time left in the session.  He also added that this was an election year.

Negligent Homicide is Not an Act of Kindness

One cannot murder in the name of religion, and one cannot consume illegal drugs (except ceremonial peyote) in the name of religion. But nine states still allow believers to neglect their children to the point of death.

Sen. Heider commends the Followers of Christ for being“very nice people.” Coroner DeGues-Morris also praises them for being “good people,” but committing negligent homicide is hardly an act of kindness.

Nick Gier of Moscow taught religion and philosophy at the University of Idaho.  Read his columns on civil rights at https://webpages.uidaho.edu/ngier/CivilRights.htm.