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Marci A. Hamilton

The Healthcare Bill and Its Troubling "Religious Conscience" Exemption


Thursday, August 6, 2009

When it comes to H.R. 3200 -- the over-1000-page-long bill to overhaul the American health care system -- there is no question that the devil is in the details. While Americans are trying to absorb the positions taken by each party regarding the big picture issues, such as how "universal" is "universal," and whether it is appropriate to limit care for the elderly, they are being told very little about the interest group deals that have been included in the bill.

The one that most troubles me, setting aside the financial and tax ramifications of the whole structure, is the exemption for "religious conscience" at Part VII, Subpart A, Sec. 59B(c)(5) (on pages 170-171 of the House Draft). Including such an exemption in the bill is both unconstitutional and dangerous for children in faith-healing homes.

A Special Exemption that Unconstitutionally Favors Only Established Religions Such as Christian Science

The Subpart begins with a requirement that a tax be imposed on any individual who does not satisfy the requirements of the bill to obtain medical coverage. The exemption states, however, that this tax "shall not apply to any individual (and any child residing with such individual) for any period if such individual has in effect an exemption which certifies that such individual is a member of a recognized religious sect or division . . . and an adherent of established tenets or teachings of such sect or division. . . ."

First, it is not consistent with the First Amendment to grant exemptions solely to "a recognized religious sect" with "established tenets or teachings." If the government can tolerate a religious exemption, then it must do so evenhandedly among religious believers with the same beliefs. This is sheer favoritism for a certain class of religions, or even for one religion.

Although the language is somewhat opaque, there is little question that the Christian Science Church's lobbyists are responsible for this provision. As Malcolm Maclachlan reported in The Capitol Weekly, according to one of the Church's lobbyists, the Church is lobbying across the country to ensure that medical care exemptions based on religion are included in health care reform bills. They succeeded in introducing the similar exemptions in parallel California bills, which ultimately did not pass.

In a previous column, I pointed out how the Church had obtained funds under the Medicare program to cover the costs of faith healers and hospice-like centers where no medical care was provided. Yes, Medicare funds are now being used to cover faith-healing in circumstances where medical care is being rejected. The first version of that law clearly identified Christian Scientists as the recipients of that federal funding. When that aspect of the law became publicly known, however, Congress amended the law to make it more opaque, even though its wording was tailor-made for Christian Scientists. The few constitutional challenges to the Medicare system's payment of religious practice have been rejected in the lower appellate courts, despite the obvious impropriety of Congress' favoritism shown toward a single church and belief system and of funding non-medical care with funds dedicated to medical care.

The Provision Puts Children In Serious Peril – Including Peril of Death

A second important problem with the exemption – and one that is of grave importance – is that it puts children in danger. Health care reform is an opportunity for the United States to turn back the tide on the ability of religious parents to let their children perish or become disabled. The common law rule is that a parent is required to provide a child with adequate medical care, and that rule should be followed. It is beyond disappointing that in 2009, in a federal bill, this basic need of children has been traded away to lobbyists.

Yet the federal government is not alone in ignoring the common law rule. In a significant minority of states, there are faith-healing exemptions from the state's medical neglect laws. In these states, if a child does not receive medical treatment because a parent is a drug addict, then that parent is liable, usually both criminally and civilly. But in a home where the reason for the failure to treat is religious belief, states give the parents a pass on either civil or criminal liability, or on both. These exemptions were secured by the Christian Science Church, and they are the best argument against religious exemptions that exists, for the stakes could not be higher, nor the consequence of the exemption more baleful.

Some readers might discount the likelihood that a faith-healing parent will really watch his or her child die an agonizing death without obtaining help. But it does happen. Consider the recent Neumann jury verdict in Wisconsin, where the parents prayed over their 11-year-old daughter, Madeline, but offered no medical treatment for her diabetes. The result: Madeline died of a completely treatable condition. Were her parents outliers? Not at all: They were accompanied in prayer by fellow believers. No one called 911 until Madeline stopped breathing. Ultimately, a criminal jury found her father guilty, but a guilty verdict cannot bring back a young life.

While adults can legally choose to forego medical treatment and, in effect, choose death, parents may not legally choose death for their children (ergo, the medical neglect laws). The provision of the federal health care bill I have described above, however, implies that it is appropriate that a child receive no medical care at all, so long as the child lives with a parent who believes in faith over medical treatment. That rule goes directly against the common law duty owed by parents to their children, to provide adequate treatment.

Such an exemption also means that the state will have to pay for the treatment of these children. In essence, if the bill is passed with the exemption intact, faith-healing parents would be able to avoid the tax imposed on every other underinsured adult, and then, when their children need medical attention, will still be able to expect the state to pay for their care. The federal government, after all, is exempting them from obtaining the health insurance that presumably will cover everyone else. The defense that they should not have to pay general taxes that contradict their religious beliefs was rejected in 1982, in United States v. Lee, when the Supreme Court held that the Amish must pay Social Security taxes for their employees just as every other employer does, despite their religious objections.

Amid The Controversy Over the Healthcare Bill, We Cannot Forget Children's Lives Are Put in Peril By the Exemption

The sad truth is that members of Congress either do not know this religious-exemption provision exists within the mammoth health care bill, or else they are willing to pander to a small religious group at the expense of children's well-being.

Either way, this grave and important issue is a very good reminder that no one should ever assume that a piece of legislation actually serves the ends at which it is purportedly aimed. It is irrational to believe that permitting faith-healing parents to forego otherwise mandatory medical insurance will contribute to better health in the United States.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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