The Religion Clauses and Parental Health Care Decisionmaking for Children: Suggestions for a New Approach

Authors

Ann MacLean Massie

Abstract

This Article argues that statutory exemptions in child abuse and neglect laws that exclude from their definitions of "medical neglect" a parent's choice to rely upon spiritual rather than physical healing are unconstitutional. In attempting to respect the free exercise rights of parents, these laws violate the free exercise rights of affected children, who are too young to make religious choices for themselves. Forcing parents' religious choices on their children is also an Establishment Clause violation, as the state is "taking sides" in religious choice-to the detriment of the children involved. Additionally, by applying different definitions of "child abuse and neglect" to children whose parents are religiously motivated and to those whose parents are not, spiritual treatment exemptions violate children's rights to equal protection of the laws. This Article concludes that parental decisionmaking rights with respect to the health care of minors are, quite appropriately, already given broad constitutional protection and are restricted only when society's interest in children's welfare requires it. Spiritual treatment exemptions are thus unnecessary for safeguarding parents' legitimate interests.

Recommended Citation

Ann MacLean Massie, The Religion Clauses and Parental Health Care Decisionmaking for Children: Suggestions for a New Approach, 21 Hastings Const. L.Q. 725 (1994).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol21/iss3/10