JUST LAW AND RELIGION
By Michael Kessler
Colleen Hauser’s 13-year-old son Daniel drew a lucky card from the cancer deck. He was diagnosed with Stage II Hodgkin’s lymphoma. Five-year survival rates are upwards of 95%. Treatment with basic chemotherapeutic regimens have made this disease highly treatable and survivable. While scary, his prognosis would be highly favorable if he received the standard treatments.
No cancer is good, of course. Cells mutate, reproduce wildly, and some are simply unstoppable. Chemotherapy and its aftermath is grueling. The standard side effects are usually awful. And even with the best treatment, some patients do not make it, as we all know. I have watched too many friends and family go down fighting to the end. My mom died two years ago from an extremely aggressive form of non-Hodgkin’s lymphoma. She tried everything over a sometimes agonizing eight-month battle, before her body ran out of energy to fight the invading, unwelcome lymphoma cells that took over her liver and other vital organs. She started out with less than 20% odds of surviving.
So Colleen Hauser and her son might have something to be reassured about–Hodgkin’s is not a grim, hopeless diagnosis. Yet, this may surprise you, Colleen Hauser and her son have gone missing. They failed to reappear before a court in New Ulm, Minnesota on Tuesday, a few days after the court rejected Daniel’s free exercise objections to chemotherapy.
Daniel claims to be a medicine man and after an initial round of chemotherapy (which reduced the size of the main site of lymphoma in his chest), he refused further treatment, even though the family sought and received 5 separate medical opinions from some of the best oncologists, all concurring that he had a great prognosis with the chemotherapy treatment but would likely die if left untreated. His doctors were required by Minnesota law to report him to the Brown County Family Services for deprivation of necessary medical care, which they did.
In ordering Minnesota to take medical guardianship of Daniel, the court described the family to have: “a genuine and strong belief in the benefits of holistic medicine and, specifically, in Nemenhah. Nemenhah is based upon Native American healing practices. Daniel is deemed to be a “medicine man” by Nemenhah and does not wish to receive any additional chemotherapy.”
Thus, the family’s interest is in refusing medical treatment based on the right of free exercise of religion. And the parents have a broad right to raise their child as they see fit. The question the court had to wrestle with was whether the state had a compelling enough reason to intervene and require Daniel to submit to the treatment, even in spite of the constitutional rights of his parents, and his own right to free exercise.
As for the religious beliefs, the judge found, based on numerous interviews and the report of Daniel’s Guardian ad Litem, that Daniel did not comprehend either the severity of his disease, nor the basic tenets of his faith.
The Court determined that Daniel thought the chemotherapy was making him sick, not the underlying disease, which he had little comprehension of. Further, it was clear that Daniel was not fully capable of making the decision for himself, since in spite of being “13 years of age, Daniel is unable to read. He does not know what the term ‘elder’ means, although he claims to be one. He knows he is a ‘medicine man’ under Nemenhah teachings, but is unable to identify how he became a medicine man or what teachings he has had to master to become one. He believes in the principle of ‘do no harm’ and attributes his belief to Nemenhah teachings.”
Worse, he appeared to be unable to provide these basic answers without turning to his mother. But Colleen Hauser, a Roman Catholic who recently adopted Nemenhah teachings last year, was ready to answer for him. She testified that she is attempting to “starve” his cancer using high pH water and a diet regimen based on her own internet research. Her belief in the Nemenhah principle of “do no harm,” leads her to believe that chemotherapy is poison, contrary to God’s intention for the natural healing of disease.
Minnesota’s interest, on the other hand, is clearly spelled out in law. Numerous Minnesota statutes mandate that parents provide “necessary medical care” for children and specifying that complementary and alternative medicines may not be sufficient substitutions, although may be used in unison with community standards of care. Thus the legislature has deemed that as a matter of public policy, parents like Colleen Hauser must provide standard and necessary care for ailments like Hodgkins lymphoma, using the commonly accepted chemotherapeutic treatment.
The Court judged rightly that the core conflict here was between Colleen’s free exercise of religion and the state’s interest in Daniel’s welfare. Had this been a case where Colleen was diagnosed with cancer, Minnesota could not force her to do anything. But Daniel, being unable to offer informed consent on his own, should not be at the total mercy of his mother’s religious beliefs. In this instance, they are a certain death sentence at the hands of another. It is insufficient that this other person who is asserting her religious beliefs is his mother.
The First Amendment does not stand as a Constitutional bulwark against Minnesota’s interventions into Daniel’s medical care. The traditional posture of the law of the US is to accord deference to religious belief, but not to exempt actions or duties unless they can be accommodated without harm. Under the principle carved out in Employment Division v. Smith, 494 U.S. 872 (1990), there seems to be no substantial basis for religious exemptions to laws so long as the legislation is neutral and unbiased to particular religions and generally-applicable and binding on to all citizens. But Smith was about access to employment benefits (and about conduct that was prohibited by criminal law).
More to the point of parental deprivation of medical care, numerous cases support intervention, particularly the Minnesota case Lundman v. McKown, 530 N.W.2d 807 (Minn. App. 1995). And the Supreme Court has weighed in on what should happen when a child’s health is jeopardized by parental choices, in Prince v. Massachusetts, 321 U.S. 158 (1944), a case that carved out authority for the government to protect the rights of children in spite of parental control: “The family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither the rights of religion nor the rights of parenthood are beyond limitation…The right to practice religion freely does not include the right to expose the community or the 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.”
While I would have tried to persuade her differently, my mom might have been reasonable to defer all treatment. She was an adult and could have come to a fully informed conclusion about the risks and benefits for treatment for a disease that was likely to kill her.
With a child like Daniel, particularly with the kind of highly treatable disease he has, it is not a parent’s place to martyr their own children. The state’s interest is very high in ensuring he receives adequate treatment.
Dr. Michael Kessler is Assistant Director of the Berkley Center for Religion, Peace, and World Affairs and Visiting Assistant Professor of Government at Georgetown University.
By Michael Kessler |
May 22, 2009; 1:22 AM ET
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