How Far Will The U.S. Supreme Court Expand Religious Entitlement?

Once in a while we come across a film, TV show or documentary that just so happens to delve into a timely topic and captures our interest.

This happened to me recently while watching a college football game one Saturday night, a matchup I’d been looking forward to all day.  To my disappointment, what I had hoped would be a close game became a blowout by the end of the first half.  So, out came the remote looking for something else.  What I came across was a film previously unfamiliar to me on Showtime called, “The Children Act,” featuring two wonderful actors, Emma Thompson and Stanley Tucci.

Thompson portrays a British court justice named Fiona Maye who is tasked with deciding a case where two parents, who are of the Jehovah’s Witness faith, have refused to allow their cancer-ridden teenage son a blood transfusion that would save his life, and whether the court should override their religious beliefs and order the procedure to protect the boy’s welfare.  The son, also devout in his beliefs, sides with his parents on the denomination’s tenet that God does not want the blood of one person mixed with the blood of another.  Justice Maye takes the unconventional route of visiting the dying boy in the hospital in an attempt to understand his reasoning for not wanting the transfusion.  Their philosophical differences aside, the two develop a bond as he becomes impressed with the justice’s worldliness, and she, a woman who never had children of her own, an emotional attachment to the boy.  Meanwhile, Maye and her husband (Tucci) are having their own difficulties at home with a disintegrating marriage.

I will not spoil the rest of the film for those who may wish to watch it, but the title is taken from a 1989 piece of British parliamentary legislation which places a duty on local authorities to promote and safeguard the welfare of children.

We have seen many cases here in the U.S. similar to the situation depicted in the film involving religious parents (usually Jehovah’s Witness or Christian Scientists) who choose prayer for their ailing children instead of the more effective method of medical treatment.  In some cases where the children have died, parents have been charged with manslaughter by withholding medical care.  The difference between these true-to-life cases and the one depicted in the film is that latter centers on a teenager who is just shy of adulthood, had been fully indoctrinated into his religion, and understood the “afterlife ramifications” for disregarding the laws of his faith.   In real-life cases, the children more often tend to be too young to understand why they are forced to suffer needlessly.

According to Pew Research, there are currently 34 states (Illinois included) and the District of Columbia that provide some type of exemption to parents who use “spiritual” or homeopathic treatments for their ailing children rather than medical.  Many of these states draw the line in cases where the death of a child has occurred.  There are, however, at least six states that provide full exemptions on religious grounds even against manslaughter laws.

The courts have tended to side more with parents when the child’s illness is not considered life-threatening, and with the state when it is.  Since the passing of the national Religious Freedom Restoration Act in 1993, the U.S. Supreme Court has been showing a greater penchant toward citing religiosity as an entitlement to receive special privileges.  Recently, in the case of Espinoza v. Montana,  it completely side-stepped our founders intentions that no citizen should be forced to support any religion when it decided the State of Montana cannot withhold grant funds from private (mostly religious schools) on the grounds that doing so would be discriminatory.  Chief Justice John Roberts, in the majority opinion, completely ignored the fact that the state had altogether done away with the grant program for all private schools, including secular ones.  In doing so, he unreasonably and unconstitutionally awarded taxpayer money to religion.  Compare this to several other cases where the court gave permission to businesses and organizations holding deeply-held religious beliefs the right to discriminate against others.  Examples here include the cases of Masterpiece Cake Shop v. Colorado Civil Rights Commission, where in a 7-2 decision the court decided in favor of a bakery owner who refused to provide a wedding cake to a same-sex couple.  The cases of Our Lady of Guadalupe v. Morrissey-Berru and St. James School v. Biel decided in favor of a “ministerial exception” in the firing of teachers who worked at two separate Catholic schools because their lifestyles were not in accordance with religious teachings.  In each of the three cases cited here, Justices Sonia Sotomayor and the late Ruth Bader Ginsburg were determined to point out in their dissents the obvious hypocrisy of the majority opinions which now hold that those of religious faith cannot be discriminated against, yet are perfectly within their right to discriminate against anyone or anything they consider in violation of their beliefs.

The original 1993 RFRA was designed to protect minority religious groups’ constitutional right to practice their religious beliefs/rituals and was lauded by many civil rights groups as a shield against the tyranny of a majority rule.  In reality, it was a poorly written piece of legislation that, sadly, has opened up a dangerous can of worms, as individual states have followed suit with their own versions which take more extreme interpretations of religious freedom.  State-created RFRA laws have shown to serve the opposite goal of the national act by providing greater empowerment to the dominant religious tradition of Christianity.  State RFRA laws have been at the forefront of LGBTQ discrimination, as well as restricting abortion rights for women.

The 1973 Roe v. Wade Supreme Court decision clarified a woman’s constitutional right to her own health, which included the reproductive decision to have an abortion.  While a reversal of Roe would not make abortion illegal, it would return the responsibility of deciding its legality to each individual state, as it was prior to 1973.  This would therefore make it unnecessary for a state to even have to pass a RFRA in order to criminalize abortion.

The subject of abortion rights ties in interestingly to the rights of parents who seek to deny their children medical care on religious grounds.  Which brings us to a question:  Can the Supreme Court take an anti-choice position on abortion by overturning Roe v. Wade, which would effectively deny women in many states the right to reproductive control, but then be pro-choice by deciding in favor of parents who are willing to allow their own out-of-the-womb children to suffer and perhaps die because they maintain deeply-held religious beliefs against medical science?  These two specific situations present yet another opportunity for the now heavily conservative U.S. Supreme Court to openly showcase its blatant hypocrisy when it comes to excessive privilege awarded to religious ideologies. Particularly the dominant one known as Christianity.

We must also wonder how an overturn of Roe might complicate matters for states which then choose to make abortion illegal.   With the free exercise of religion becoming more and more of an absolute right in this country, how would such excessive privilege pertain to a woman who cites her deeply-held religious beliefs to have an abortion?  If religiosity can be used to receive exemptions from laws people claim to be in conflict with their beliefs, should a woman then also be able to claim similar exemptions from anti-abortion laws?

For example, Reform Judaism maintains that abortion is both a spiritual and medical decision but asserts that the well-being of an existing life (the pregnant woman) must be prioritized over the potential life (a fetus).  This was derived centuries ago in teachings from The Talmud (Mishneh Ohalot 7:6). Therefore, an abortion must be performed if the mother’s life is in danger.  Reform Judaism also asserts that a pregnant woman maintains absolute autonomy over her body, even in cases where her life is not in danger.  While more conservative Jewish sects do not take as firm of a pro-choice position regarding complete autonomy as does Reform Judaism, they still sanctify the mother’s life over that of the fetus in accordance with the writings of The Talmud.

The Satanic Temple, which has established itself with the IRS as a religious organization, maintains in one of its Seven Tenets that each person’s body is inviolable, meaning one must be allowed control over all aspects of their own body.  As a result, they have been challenging states that have handed down extreme restrictions on a woman’s access to abortion, claiming such laws violate their deeply-held religious beliefs.  A TST lawsuit against restrictive Missouri abortion laws will soon be reviewed by the U.S. Supreme Court as to whether it will hear the case.

It should indeed be a quandary for those who oppose abortion on religious grounds, and for the courts, if states are allowed to criminalize the termination of a fetus, but then deal with the question of whether parents are fully within their right to endanger their own children by denying them life-saving medical treatment.

To be fair, there are certainly situations where a medical procedure has a very low probability of saving a child’s life.  In such cases, we can sympathize with parents who would rather not have their child deal with painful treatments in what may be their final days.  But these are decisions that should be grounded in science, and the vast majority of people of religious faith would likely not substitute prayer for medical science regarding the well-being of their children if the treatment had a high, or even moderate, probability of success.  Anti-choice people often use the phrase, “Who speaks for the fetus?” in their arguments against abortions.  Would they be just as willing to use a similar phrase for the living children whose parents have made the decision to use prayer instead of medicine?   I contend that being anti-choice in one situation and pro-choice in another would be the height of religious hypocrisy.

The questions we must ask are:  Why is that religion is always given more credence over the ability to use sound, critical thinking in coming to a rational decision regarding the quality of life for their child or themselves, and why is it that religiosity is given such latitude to so muddle things?  Could many of the problems we face today with excessive religious privilege being awarded by the courts have been avoided if the authors of our Bill of Rights had been more judicious in their wording of the Free Exercise [of Religion) clause of the 1st Amendment?

Perhaps legislators must consider adding disqualifiers to the Free Exercise clause, as has been done with the Free Speech clause.  The latter does have its restrictions, such as prohibiting someone from yelling “fire” in a crowded theater, or with the creation of Hate Speech laws prohibiting language designed to incite physical harm to others.  The 2^nd Amendment right to bear arms also has its restrictions, though perhaps not as many as there should be.  But a person’s right to openly carry a firearm does not necessarily mean they can setup target practice in a public park.

Such steps must also be taken to prevent the Free Exercise clause from being used to cause harm to others.  Freedom of religion most certainly allows a woman the right to not have an abortion.  But that freedom must not be allowed to mandate the medical choices of those who do not share those beliefs.

One answer to this is the “Do No Harm Act.”

 The Human Rights Campaign very aptly defines this piece of proposed legislation as the following:

“The Do No Harm Act clarifies that the Religious Freedom Restoration Act is intended to protect religious freedom without allowing the infliction of harm on other people. It would amend RFRA in order to restore the original intent of the legislation by specifically exempting areas of law where RFRA has been used to bypass federal protections. These include well-settled areas of law designed to protect our most vulnerable populations including child labor and abuse, equal employment and non-discrimination, health care, federal contracts and grants, and government services. The Do No Harm Act therefore ensures that religious freedom is used as a shield to protect the Constitutional right to free exercise of religion and not a sword to discriminate.”

https://www.hrc.org/resources/do-no-harm-act

The Do No Harm Act was introduced in the House of Representatives (H.R. 1450) on February 28, 2019 by two Democratic congressmen, and in the Senate (S.593) by Kamala Harris.  While these bills do not directly address the specific situation of child neglect at the hands of parents  holding extreme religious beliefs, the name of the bill could certainly be inferred to stipulate that religious freedom should not include the right to inflict harm in the form of parents choosing untested, unreliable prayer over tested, effective medical science for the well-being of their children.

To be clear, under no circumstances should an individual’s right to pray ever be taken away from them in any situation.  The emotional comfort prayer can bring to some people (even if only in a false sense) is commonly accepted, and is something most atheists would also acknowledge.  But, when a parent demands that prayer be the only form of treatment for their child, when medical treatments with a proven high probability of success are available and recommended by licensed physicians, this becomes the most heinous form religion can take.

In its description of the Do No Harm Act, the Human Rights Campaign speaks of protecting “…our most vulnerable populations…”  And no population should be considered more vulnerable than a child placed in danger by his or her own parents who choose superstitious ignorance over science.  What an injustice it would be to rationalism if the Court were to allow those who hypocritically demand the medical profession must bring every fetus to full term, even one that does not belong to them, to then be able to thumb their noses at that same medical profession when it has much better alternatives than prayer to keep a child alive when its life is in danger outside the womb.  This would be another classic example of religion being extended the right to have it both ways.

As we have seen so many times before, religion is more often the problem and rarely the solution.  Unfortunately, today’s courts rarely see it that way.

Submitted by:

Tom Cara

Executive Director, Freedom From Religion Foundation Metropolitan Chicago Chapter