CHAPTER III
JEHOVAH’S WITNESSES BLOOD
TRANSFUSION COURT CASES
Introduction
116
"Of making many books there is no end" (Eccl. 12:12) and of Jehovah’s Witness blood transfusion cases there seems to be no end. The following list is not complete. An effort has been made to list all cases that have appeared in the major state and federal reporters. These cases are representative of court actions and decisions that run into the hundreds.1 Due to the geographical strength of the Witnesses in the Northeast, most cases come from there.
This survey of the blood transfusion cases reveals the ethical issues at stake which will be analyzed in chapter four. Although there may be other cases, the landmark ones which have been used repeatedly as precedents are found here along with many cases that are less well known.2 Each case
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1This estimate is based upon the example of a single reported case from the State of Washington (King County) in which details are noted of ten previous court orders in that state alone. Most such orders are probably unpublished.
2In re William J. Dell, II, 1 D. & C.3d 655 (PN C. P. of Allegheny County, C. D. 1975) was not included since it was not stated that Mr. Dell was a Jehovah’s Witness. He refused a transfusion for a bleeding peptic ulcer. The hospital and Mrs. Dell obtained a court order for a transfusion, since "the public policy of the Commonwealth expresses abhorrence at the act of self-destruction." Jefferson v. Griffin Spalding City Hospital, 274 S.E.2d 457 (GA 1981) was not used even though it involved a Witness and an order for a blood transfusion. The transfusion was secondary in the case and barely mentioned. The thrust of the case was to force Mrs. Jefferson to undergo a Caesarean section delivery.
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is unique and sheds further light on the controversy, whether by eloquent comments from a judge, the testimony of Witnesses, or the circumstances surrounding the case such as 3 courtroom hearings being conducted in a hospital room.3
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3The author gained a greater respect for the judiciary of this nation in reading these cases. There is a pervasive spirit throughout them of men and women who respect freedom, the constitution, and life--and want desperately to do what is right. Individual case reviews are listed with the various cases even though those reviews usually give brief attention to several other cases. Some other brief reviews of the more important cases are Robert M. Bratton, "The Right to Die: A Constitutional One?" The Jurist 41 (Winter 1981): 155-75; W. C. Cunningham, "Indicated Blood Transfusions and the Adult Jehovah’s Witness: Trial Judges’ Dilemma," Valparaiso University Law Review 2 (Fall 1967): 57-69; Maureen L. Moore, "Their Life is in the Blood: Jehovah’s Witnesses, Blood Transfusions and the Courts," Northern Kentucky Law Review 10 (Spring 1983): 283-96; Norman L. Cantor, "A Patient’s Decision to Decline Life-Saving Medical Treatment: Bodily Integrity versus the Preservation of Life," Rutgers Law Review 26 (Winter 1972): 230-36; William P. Cannon, "The Right To Die," Houston Law Review 7 (May 1970): 664-67; P. J. Riga, "Compulsory Medical Treatment of Adults," Catholic Lawyer 22 (Spring 1976): 122-29; Henry Zee Shaub, "Right to Refuse Medical Treatment: Under What Circumstances Does It Exist?", Duguesne Law Review 18 (Spring 1980): 607-28; Daniel J. Davis, "The Dying Patient: A Qualified Right To Refuse Medical Treatment," Journal of Family Law 7 (Winter 1967): 644-48; Barry D. Silbermann, "The Right of a Patient to Refuse Blood Transfusions: A Dilemma of Conscience and Law for Patient, Physician and Hospital," University of San Fernando Law Review 3 (1974): 91-98; M. J. Zaremski, "Blood Transfusions and Elective Surgery: A Custodial Function of an Ohio Juvenile Court," Cleveland State Law Review 23 (Spring 1974): 231-36; Robert M. Veatch, Death, Dying, and the Biological Revolution: Our Last Quest for Responsibility (New Haven, Connecticut: Yale University Press, 1976), 119-59; Virginia Abernethy, Frontiers in Medical Ethics: Applications in a Medical Setting (Cambridge, Massachusetts: Ballinger Publishing, 1980), 81-85, 90; Paris, "Compulsory Medical Treatment," 2-12; Byrn, "Compulsory Lifesaving Treatment," 2-35; Davis, "Refusal of Life-Saving Medical Treatment," 85-95; W. E. Shipley, "Power of Public Authorities to Order Medical Care for a Child Over Objection of Parent or Custodian," American Law Reports 2d 30 (1953): 1138-41; L. C. Di Stasi, Jr., "Power of Courts or Other Public Agencies, In the Absence of Statutory Authority, to Order Compulsory Medical Care For Adult!" American Law Reports 3d 9 (1966): 1391-98; Kenneth J. Rampino, "Power of Court or Other Public Agency to Order Medical Treatment Over Parental Religious Objections For Child Whose Life is Not Immediately Endangered," American Law Reports 3d 52 (1973): 1118-24; Kristine Cordier Karnezis, "Patient’s Right To Refuse Treatment Allegedly Necessary To Sustain Life," American Law Reports 3d 93 (1979): 67-85; Angela R. Holder, "Circumstances Warranting Court-Ordered Medical Treatment Of Minors," American Jurisprudence Proof of Facts: Second Series 24 (1980): 169-92.
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Cases Involving Children
People v. Labrenz
Cheryl Linn Labrenz was born on 11 April 1951 with erythrobastosis fetalis or RH blood condition. Her parents refused to consent to a blood transfusion because of their beliefs as Jehovah’s Witnesses. A petition was filed on 17 April 1951 for the court to appoint a guardian who would give the needed consent. At a hearing three physicians testified. Two were certain that the child would die without a transfusion. The third said she had "a slim chance to live without a transfusion, but that even if she did live . . . her brain would probably be so injured that she would be mentally impaired for life."4
The parents also testified. The father referred to
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4People ex rel. Wallace et al. v. Labrenz et al., 104 N.E.2d 769, 771 (IL 1952).
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Genesis 9:4, Leviticus 17:14, and Acts 15 and argued "that any use of the blood is prohibited whether it be for food or whether it be for, as modern medical science puts it, for injections into the blood stream."5 The mother’s wording was not altogether clear, but her strong conviction about the import of transfusions was evident:
We feel that we would be breaking God’s commandment, also destroying the baby’s life for the future, not only this life, in case the baby should die and breaks the commandment, not only destroys our chances but also the baby’s chances for future life. We feel it is more important than this life.6
The hearing gave custody of the child to the chief probation officer. Consent was immediately granted for a transfusion which proved successful. In less than two months when no further medical attention was necessary, the guardian was dismissed. Even though the current situation apparently made the case moot, the Supreme Court of Illinois refrained from declaring it moot. The issue was one of "substantial public interest" and "the likelihood of future recurrence of the question" and the "desirability of an authoritative determination for future guidance of public officers were reasons for hearing the case anyway.7 This was frequently done in other cases in this study.
Even though the parents were recognized as good parents in every other respect except for their refusal to consent to a blood transfusion, the child was declared a
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5 Ibid.
6 Ibid., 772.
7 Ibid.
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neglected child due to the serious ramifications of her condition. Objections of the parents that blood transfusions were not safe were dismissed by the court. One doctor claimed there was no more hazard than in taking an aspirin. All of the physicians who testified agreed the risk was minimal while refusal involved a terrible risk.8
The heart of the case involved the free exercise of religion. The court recognized that "freedom of religion and the right of parents to the care and training of their children are to be accorded the highest possible respect in our basic scheme."9 Relying primarily on Reynolds and Prince, though, the court upheld the decision to grant custody to a guardian to obtain consent for a transfusion. Comparing the present case to Prince where the issue was a child distributing pamphlets on the street even when accompanied by an adult guardian, the court concluded: "Obviously, the facts before us present a far stronger case for State intervention.10
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8 Ibid., 771.
9 Ibid., 773.
10 Ibid., 774. Many commentators agreed with the decision of the court. One said the position taken was "neither new nor novel" and that it presented "a much more compelling case for state protection" ("State Responsibility for Minors and Parental Freedom of Religion," Northwestern University Law Review 47 [September-October 1952]: 543). Another declared, "The decision in the principal case is sound" (Isabel L. Blair, "Parent and Child--Neglected Child--Custody of the State as Parens Patriae--Religious Freedom," University of Cincinnati Law Review 21 (November 1952): 514. Also see Joy Hughes, "Court Decides Moot Question on the Basis of Public Interest (Illinois)," University of Illinois Law Forum 1952 (Fall 1952): 430-33; and "Constitutional Law--Freedom of Religion--Parents Duty to Provide Medical Attention," Washington University Law Quarterly 1952 (December 1952): 585-58. For a more general discussion see Robert Keith Larson, "Child Neglect In The Exercise of Religious Freedom," Chicago-Kent Law Review 32 (September 1954): 283-97.
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Morrison v. State
Janet Lynn Morrison was declared a neglected child at twelve days of age by a Juvenile Court in Missouri. A medical doctor and a medical technician testified to the symptoms of erythroblastic anemia. Blood tests indicated that the illness was progressing very rapidly and "that if life was to be saved, the baby should have an immediate blood transfusion."11 If the transfusion was done immediately, recovery should be complete. If it was done in a few days, the child might survive but with severe brain damage. The parents had been notified of this need six days before but refused a transfusion on religious grounds. The medical technician agreed with the physician’s prognosis and commented that "never before, within her experience of eight years, had parents refused consent for a transfusion in such a case," a testimony to the how recently the Witnesses had formulated their doctrine against blood transfusions. The father of the child testified that he was a minister of the Jehovah’s Witnesses. He appealed to Leviticus 17:10-14 and Genesis 9:4-5. In response the court
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11 Morrison v. State, 252 S.W.2d 97, 99 (MO C. of A. 1952).
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said, "With the interpretation of these Biblical injunctions we are not concerned. Courts leave such matters to the conscience of the people."12 The decision then cited Reynolds and Prince and the dichotomy in law between belief and action. After citing the Declaration of Independence, the court declared:
We believe that every human being is endowed by God with the inalienable right to live. The fact that the subject is the infant child of a parent who, arbitrarily, puts his own theological belief higher than his duty to preserve the life of his child cannot prevail over the considered judgment of an entire people, in a case such as this. The other rights, liberty and the pursuit of happiness, are of no benefit to a dead baby. . Missouri has the power to interfere in the interests of one of its infant citizens, helpless in its own behalf, and to take such steps as may be necessary to preserve its life, over the protest of its father.13
The court reviewed common law duties of parents and concluded:
It follows that society may punish a parent for dereliction in his duties; but society is not required to stand aside until the child is dead for want of care, but may take direct steps to preserve the life that the parents neglected to cherish. . In ancient Times [sic] the King was regarded as "Parens Patriae" of orphaned or dependent infants. . Under our system of government the state succeeds to the position and power of the King. Both King and State exercise this power in the interests of the people. Society has a deep interest in the preservation of the race itself. It is a natural instinct that lives of infants be preserved.14
The court justified the compulsory transfusion upon the minimum of danger it entailed, the efficacy of the
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12 Ibid., 99-100.
13 Ibid., 101-02.
14 Ibid 102.
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treatment, and the lack of a suitable alternate therapy. Finally the court said society might uphold the right of an adult religious zealot to fast to death, but society should not allow that same person to refuse food to his children. "Youth, who constitute the hope of racial survival and progress, is of vital concern to the very life of the nation."l5
Hoener v. Bertinato
Louis and Gloria Bertinato’s first child was born without the need for a blood transfusion and was normal. Their second child required a blood transfusion immediately after birth. In RH blood conditions it is common for the second and subsequent births to require a transfusion but not the first child. Over the parents’ religious objections the child welfare department obtained custody of the infant for the purpose of a transfusion. It was performed successfully and the child was healthy. The Bertinato’s third child likewise needed a transfusion but the parents refused. No legal action was taken and the infant died.16
Before the delivery date of their fourth child, the welfare department sought an order for custody for an immediate transfusion after birth. The Bertinatos
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15Ibid., 103.
16Hoener v. Bertinato, 171 A.2d 140 (NJ Juv. & Dom. Rel. C. 1961).
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obstetrician and pediatrician both testified that to be successful, the transfusion needed to be performed as near after birth as possible. They planned to induce early labor and perform the transfusion to reduce the severity of the baby’s blood condition at birth.
The Bertinatos declined to retain legal counsel to represent them. Their testimony did not dispute the need for the transfusion. They did not object on the grounds of any potential danger that a transfusion posed. Their sole objection was a religious one as Jehovah’s Witnesses. While their faith would not allow them to consent to a transfusion, they stated that "if the transfusions were ordered by the court--a matter beyond their control and against their wishes--, they would nevertheless accept the child into their home as their child."17 The court did not doubt the authenticity or sincerity of the Bertinatos’ religious belief. Nevertheless, the court decided that
The parents constitutional freedom of religion, although accorded the greatest possible respect, must bend to the paramount interest of the State to act in order to protect ~e welfare of a child and its right to survive.
As would be expected, Reynolds and Prince were cited, but Labrenz and Morrison were added as a body of legal precedent was beginning to develop.
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17 Ibid, 142.
18 Ibid 143.
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The key difference between this case and the previous two is that the Bertinato infant was still unborn. The court concluded that this posed no problem, since an "unborn child is entitled to legal protection."19 Custody, when the child was born, was granted to a guardian for the purpose of consenting to a transfusion. Having an emergency court hearing after the birth was not considered practical or sensible.
Santos v. Goldstein
The Santos family refused to give consent for a blood transfusion for their child even though the surgery the child faced might require it. An order was given to declare the child neglected in order to arrange consent for the child. Very little was reported about this case except the usual reminder that the ruling in no way reflected on the parents in other respects.20
State V. Perricone
On 1 March 1961 the infant John Perricone was admitted into Pollak Hospital in Jersey City, New Jersey. He was a blue baby, suffering from chronic oxygen deficiency and associated heart problems. The "Progress Record" of the child said: "Parents are Jehovah Witnesses--request no usage
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19 Ibid, 144.
20 Santos v. Goldstein, 227 N.Y.S.2d 450 (NY 1962).
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of blood transfusions."21 Medical personnel desired to administer a transfusion, though, so a hearing was held. One of the attending physicians "testified that the infant was in 22 danger of death." The hospital had already attempted alternate procedures, but none were as effective as blood would be. A transfusion would not correct the infant’s problem but would alleviate it. With it brain damage might be prevented, and "his chances will be improved for survival."23 Another physician corroborated this testimony: "I think without transfusion he has only an outside chance for surviving."24 The parents produced no medical witnesses. The father testified that he was a minister of the Jehovah’s Witnesses. He appealed to Leviticus 17:11-12. The mother was in full accord with her husband’s convictions and decisions. In spite of their religious beliefs, a transfusion was ordered. In spite of the transfusion, the infant died. Both sides did not want the appeal declared moot due to the death of the child: "They strongly emphasize the public importance of a decision which would settle the question so that parents, physicians and hospitals will have proper legal guidance."25
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21State v. Perricone, 181 A.2d 751, 753 (NJ 1962).
22 Ibid., 754.
23 Ibid.
24 Ibid.
25Ibid 755.
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On appeal the Perricones argued that their constitutional rights of parental care and religious freedom were both violated. They also advanced the claim that blood transfusions were of doubtful if not harmful value in the treatment of disease. In addition to Leviticus the Perricones used Genesis 9:4 and Acts 15:28-29 to demonstrate the reality of their religious convictions.26 In evaluating the balance of interests in this case, the court appealed to the action/belief dichotomy. Admitting that "freedom of religion and the right of parents to the care and training of their children are to be accorded the highest possible respect in our basic scheme," nevertheless their rights are not without limitation.27 The circumstances of the Perricone case presented "a more compelling necessity for the protection of a child’s welfare than those in Prince."28
Even though the Perricone infant had died in spite of the transfusion, the decision said the order was justified:
Concededly, medicine and surgery are not yet exact sciences and the result of any given operation or treatment cannot be foretold with complete accuracy. However, courts can be guided only by the prevailing medical opinion. Had there been a relevant and substantial difference of medical opinion about the efficacy of the proposed treatment or if there were substantial evidence that the treatment itself posed a significant danger to the infant’s life, a strong argument could be made in favor of [the parents’] position.29
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26Ibid., 755-56.
27 Ibid., 756-57.
28 Ibid, 757.
29Ibid., 760.
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The decision received several favorable comments, one saying, "It cannot be legally, logically, or morally argued that the action taken was incorrect."30
In re Clark
Kenneth Clark, aged three, was admitted to Mercy Hospital in Toledo, Ohio, with second and third degree burns over 40 percent of his body. His blood condition was deteriorating and hospital personnel were convinced that a blood transfusion would be necessary very soon. Due to the parents refusal to consent based upon their religious convictions as Jehovah’s Witnesses, a court order was sought. 31
The court asserted its authority under Ohio’s Juvenile Code to give such an order. Even apart from Ohio law, though, the court laid claim to power to act in behalf
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30Stephen Grant Young, "Parent and Child--Compulsory Medical Care Over Objections of Parents," West Virginia Law Review 65 (February 1963): 119. See also "Parent and Child--State’s Right To Take Custody Of A Child In Need Of Medical Care," De Paul Law Review 12 (Spring-Summer 1963): 342-46; Sylvester John Hemleben, "Constitutional Law--The State and Blood Transfusions for Infants--Religious Freedom," Mississippi Law Journal 34 (March 1963): 219-20; C. Kent May, "Constitutional Law--Freedom of Religion," University of Pittsburgh Law Review 24 (March 1963): 642-46; "Equity--Power of a State To Provide Medical Treatment for a Child Despite Parents Objection Based on Religious Belief," Vanderbilt Law Review 16 (June 1963): 960-65; and Joseph F. Doyle, "Domestic Relations--State Has Power to Order Medical Treatment for Child in Spite of Parents’ Religious Objection," Villanova Law Review 8 (Fall 1962): 114-19.
31In re Clark, 185 N.E.2d 128, 129 (OH C. of Corn. P1., Div. of Dom. Rel. 1962).
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of the interests of the child. Recognizing that parents’ rights and the rights of a child are often identified as one and the same, the court pointed out that that is not always the case. Frequently the rights and interests of a child are 32 at variance with those of the parents. The court empowered the medical authorities to administer the transfusion if it was necessary.
Out of respect for the wishes of the parents, a brief delay was made in the giving of blood to Kenneth. In one week his condition had started to improve and no transfusion was needed. In attempting to vacate the authorization, the Clarks contended that theirs was not an emergency situation. Echoing the words of a Biblical parable, the court disagreed, saying the situation
. . . was pregnant with emergency in that the need for blood might become imperative at any moment, and for the child’s sake the attending surgeon did not dare cast himself in the role of a foolish virgin.33
Should the order have been given originally? The court affirmed the state’s limitation of parental rights in very strong words:
Do the parents own their child’s body? Is he their chattel? It is true that parents exercise a dominion over their child so mighty and yet so minute as to be sometimes frightening. . . But there are well-defined limitations upon this appalling power of parent over child. while they may, under some circumstances, deprive him of his liberty or his property, under no
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32 Ibid, 130.
33 Ibid.
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circumstances, with or without due process, with or without religious sanction, may they deprive him of his life!34
While courts usually state the religious convictions of the Witnesses and refrain from passing judgment on them, the Clark decision listed several Biblical references and followed with this condemnation of Witness theology:
To a layman unversed in the seemingly esoteric art of theological interpretation of the 17th century English version of ancient Hebrew and Greek Scriptures, these passages are, to say the least, somewhat obscure. They have to do with blood and the eating or taking thereof. Blood transfusion as administered by modern medicine was unknown to the authors of these cryptic dicta. Had its beneficent effects been known to them, it is not unlikely some exception would have been made in its favor--especially by St. Luke who is said to have been a physician.35
The court concluded that the parents’ religious beliefs could not prevail in this situation. Their rights were limited by the rights of another, in particular the right of their child to live. "When a child’s right to live and his parents religious belief collide, the former is paramount, and the religious doctrine must give way."36
Application of Brooklyn Hospital
Elizabeth Torres was five years old and suffering from third degree burns over 25 per cent of her body. The medical personnel at Brooklyn Hospital believed she would die in a few hours if she did not receive transfusions of blood or plasma. Her parents objected on religious grounds. After
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34 Ibid., 131.
35 Ibid., 132.
36Ibid.
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a very brief review of the facts of the case and virtually no discussion of the issues involved, the case reported that limited and temporary custody was granted for the purpose of consenting to necessary medical treatment of the child. Interestingly the court said, "All of the authorities that could be cited, and they are too numerous to mention, are based solely on the welfare of the infant."37 The only precedent that was cited was Battaglia which was a custody case.
In re Sampson
Kevin Sampson, the fifteen-year-old son of a Jehovah’s Witness mother, was terribly disfigured on his face and neck from neurofibromatosis. His mother had agreed to surgery, but she refused to consent to the blood essential for the safest possible performance of this type of surgery. Without blood the surgeons would not perform the surgery. With it they admitted there was a great deal of risk involved in the surgery. Without surgery Kevin was left to lead a life with a physical appearance "which can only be described as grotesque and repulsive."38 The surgery would help his appearance, but it would not cure his disease. Kevin had the disease since birth, and it had grown
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37 Application of Brooklyn Hospital, 258 N.Y.S.2d 621, 622 (NY 1965).
38 In re Sampson, 317 N.Y.S.2d 641, 643 (NY Fain. C. 1970).
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progressively worse. His general health had not been affected by the growth of the tumor. His vision and hearing were unaffected. He was not retarded or mentally ill, but he did have psychological problems as a result of his deformity. A psychiatrist reported that Kevin had a low self concept and feelings of inferiority. His appearance was exerting a very negative effect upon his personality development. He had been exempted from school for the past six years due to his appearance. While he was intellectually capable of being educated, he was virtually illiterate.39
The decision reviewed the risks involved in the surgery and gave a brief explanation of the Jehovah’s Witness stance on transfusions. Statutes and earlier precedents were summarized in an excellent fashion. The court concluded that the mother’s religious objections to a blood transfusion to her son "must give way before the state’s paramount duty to insure his right to live and grow up without disfigurement."40 It was clearly admitted that the surgery was not essential for Kevin’s life or health. It was a question of a potential good. The court concluded that its authority was not limited to "drastic situations" or those which constituted a "present emergency."4l Surgery and any necessary transfusions were ordered at county expense. Kevin’s mother appealed, but the judgment was affirmed by the New York
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39I bid., 644.
40 Ibid., 652.
41 Ibid., 654.
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Supreme Court.42
In re Green
Ricky Green was a sixteen-year-old child suffering from a variety of ailments due to poliomyelitis. From 1968 through 1970 physicians were recommending a spinal fusion. He had severe curvature of the spine and was unable to stand due to his condition. His mother refused any blood transfusions which were necessary in major surgery such as his. A court order was sought ordering the needed blood and was refused by the Court of Common Pleas of Philadelphia County, Family Division, Juvenile Branch in December 1970. The doctor appealed.43
The appeal recognized that the central question was "whether the State’s interest in the health and welfare of this child is sufficient to overcome the religious objections of the parents where no immediate threat to life exists."44 Relying heavily on the recent Sampson case, the Superior Court reversed the earlier decision, declaring Rick neglected for the purposes of obtaining medical treatment for him. Ricky’s mother appealed. The Supreme Court of Pennsylvania in a close four to three vote reversed the Superior Court decision and the matter
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42 In re Sampson, 323 N.Y.S.2d 253 (NY 1971).
43 In re Green, 286 A.2d 681 (PA Sup. C. 1971).
44 Ibid., 683.
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was remanded for further action. A lengthy argument was given denying the state’s right to intrude over the mother’s religious objections since Ricky’s life was not in danger.45 Reacting negatively to the Sampson decision with a "Where will it end?" attitude, the decision said, "The problems."46 created by Sampson are endless. Finally, since Ricky was sixteen years old rather than an infant, the court sent the case back in order to hear from him.
In dissent Justice Eagen presented lengthy evidence that the decisions relied on by the majority did not limit themselves to life and death situations but frequently addressed the health and welfare of a child. Also the dissent disagreed with the decision to send the case back in order to hear from Ricky on the matter:
To now presume that he could make an independent decision as to what is best for his welfare and health is not reasonable. . . . Moreover, the mandate of the Court presents this youth with a most painful choice between the wishes of his parents and their religious convictions on the one hand, and his chance for a normal, healthy life on the other hand. We should not confront him with this dilemma.47
After an evidentiary hearing was held on 28 March 1973, the reversal of the Superior Court stood. Ricky would not have to undergo surgery. At the hearing he expressed his refusal on religious grounds and on other grounds. He had been in the hospital many times already and was not
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45 In re Green, 292 A.2d 387, 389-92 (PA 1972).
46 Ibid 392.
47 Ibid., 395.
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optimistic about the helpfulness of further treatment.48 This case drew much attention, some of it very negative, as should be expected on a close, split decision.49 One reviewer called the decision "an evasion of judicial responsibility."50 He said the court ought to consider the welfare of the child first. Any religious beliefs of the parents become irrelevant and should be excluded from consideration. Another commentator had stronger words:
Although the result in Green is supported by the strictest literal interpretation of the free exercise clause, it stands in opposition to the free exercise limitations pronounced by the Supreme Court and violates the spirit of the Constitution. Child neglect is no less odious because is has religious foundations. As this case involves a religious practice, it seems appropriate to quote the standard Another has laid down to be followed when interpreting His constitution, "[God] hath made us able ministers of the new testament; not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life" (2 Corinthians 3:6 [King James]).
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48 In re Green, 307 A.2d 279, 280 (PA 1973).
49 Kenneth P. Walsh, "Parent--Child--The Right of a State to Order Surgery on a Minor in a Nonterminal Situation Despite the Religious Objections of the Parent," Dickinson Law Review 77 (Summer 1973): 693-98; James P. Cullen, "Constitutional Law--Freedom of Religion--State Does Not Have Interest of Sufficient Magnitude to Outweigh Parent’s Religious Beliefs in Compelling Medical Care for Minor When Child’s Life Is Not in Immediate Danger," Villanova Law Review 18 (November 1972): 108-16; and Carol L. Dalcanton, "Compulsory Medical Treatment of Children: Rights in Conflict," University of Pittsburg Law Review 35 (Winter 1973): 369-81.
50 Mike Hulen, "Domestic Relations--Necessity of Blood Transfusions in Proposed Operation on Child Conflicts with Parent’s Religious Beliefs," Arkansas Law Review 27 (Spring 1973): 156.
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Hopefully this case will be overruled. It should not be followed. In the meantime, Ricky Green will remain a hopeless cripple in the prison of his mother’s religious beliefs.51
Muhlenberg Hospital v. Patterson
Anthony Patterson was born to Jehovah’s Witness parents after thirty-two weeks gestation and suffered from jaundice caused by blood incompatibility between his system and his mother’s blood. The physician understood the parents’ objections to transfusions and waited until the child’s bilirubin level reached the point where a transfusion would normally be given and where serious hazards for the child existed. At that point the hospital sought help from the court. A hearing was held at the hospital.52
The physician testified that severe and irreparable brain damage would occur soon if a transfusion was not given. The parents, two fellow Jehovah’s Witnesses, and two other friends testified. Even though there was "only incidental" danger to the child’s life, a transfusion was ordered to prevent the severe mental retardation which was so certain.53
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51 Bruce M. Allman, "Freedom of Religion--Health--Inf ants--Parent and Child--State’s Rights--A State Does Not Have the Power to Appoint a Guardian to Provide Necessary Medical Care for a Child Against the Religious Objection of a Parent When the Child’s Life Is Not in Imminent Danger," Cincinnati Law Review 41 (1972): 968.
52 Muhlenberg Hospital v. Patterson, 320 A.2d 518, 519 (NJ Sup. C., Law D. 1974).
53 Ibid.
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A transfusion was administered, but the child later died due to deterioration of his general physical condition. The death was not related to the transfusion.
Even though the child had died, the judge in this case thought it worthwhile to record his reasons for the decision. He defended his ordering of a transfusion even though the child’s life was not in danger when the order was given. The parents had asked, "Where will this intrusion end?"54 The intrusion was justified, though, since the danger to the infant was not slight. The courts have been and will continue to be guardians, he claimed, to see that the power of the state is not extended beyond the treatment necessary to sustain life or prevent grievous bodily injury.55
In Interest Of Ivey
Two infants were born prematurely to Mr. and Mrs. Henry Clay Mitchell, Jr. on 31 August 1975 in Florida. Their condition was critical, fluctuating from hour to hour, and physicians wanted permission to administer a blood transfusion to replace blood drawn for necessary tests for premature infants. There was a good chance that the infants would die even if a transfusion was given. The case became entangled in various legal questions and appeals over court jurisdiction which are unrelated to this study. Transfusions
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54 Ibid., 520.
55Ibid., 521.
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were ordered and administered, though.56 The written decision offered little discussion of the constitutional issues except to quote from earlier decisions and legal commentaries.
Cooper v. Wiley
The eight-month-old son of a Jehovah’s Witness couple was ill with thrombocytopenia, a condition characterized by a lack of blood platelets and a falling blood count. In spite of an imminent need for a transfusion, the parents refused to give consent. A caseworker from Special Services for Children was assigned to investigate the case. The child’s blood count was at twenty-one and falling, sixteen being the critical level or danger point. A neglect petition was filed seeking custody for consent to a transfusion, but when the child’s blood count stopped dropping at nineteen and then began to rise, the petition was withdrawn.57
The parents sought an expungement of the child neglect report which had been filed in the central register. This was especially important to them, since they were attempting to adopt a foster child at the time. The court granted the expungement order, erasing the report that their child was maltreated or neglected. The logic was that the
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56In Interest Of Ivey, 318 So.2d 53, 54-55 (FL D. C. of A., 1 Dist. 1975).
57Cooper V. Wiley, 513 N.Y.S.2d 151, 152 (A. D. 1 Dept. 1987).
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blood count never dropped below nineteen and sixteen was the danger level. At the same time, however, the decision described the actions of the hospital as "prudent" in preparing for the possibility of saving the life of the child.58
Since "neglect" is a legal description used merely to obtain authorization for compulsory medical treatment and is not meant to be descriptive of the overall fitness of parents to the welfare of their children, this case is understandable. The decision was designed to remove a potentially damaging mark from the family’s record, a mark that could be misconstrued to their detriment. It was not a reversal of the lengthy trend of the application of the parens patriae doctrine to children of Jehovah’s Witnesses needing a blood transfusion.
Cases Involving Adults
Erickson v. Dilgard
The first case involving an adult was decided in 1962. Jacob Dilgard, Sr. was admitted to a county hospital in New York with upper gastro-intestinal bleeding. Surgery was recommended and Dilgard consented, except he refused to submit to any blood transfusions. He was informed that the best chance of recovery from the surgery would entail a blood transfusion. Without it he would have little chance of
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58 Ibid., 153.
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recovery. Dilgard was "completely competent and capable of making decisions on his own behalf."59 The state argued "that as a practical matter the Patient’s decision not to accept blood is just about the taking of his own life" and suicide is a violation of the Law.60 Penal The court disagreed. While not impugning the judgment of the physician, medical judgment is not absolute. The decision was significant:
the Court concludes that it is the individual who is the subject of a medical decision who has the final say and that this must necessarily be so in a system of government which gives the greatest possible protection to the individual in the furtherance of his own desires.61
While there were precedents relating to incompetents or infants, none was known relating to adult patients. The court declined to order a transfusion. One review said a problem not adequately addressed in the case is the protection of the physician. Is a doctor more liable if he performs the surgery made dangerous without blood transfusions or if he dismisses the patient and refuses to treat him?62 The commentator suggested the following solution:
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59 Erickson v. Dilgard, 252 N.Y.S.2d 705, 706 (NY 1962).
60 Ibid.
61 Ibid.
62 "Criminal Law--Suicide--Hospital Superintendent Not Granted Order To Administer Transfusions to a Competent Patient Where It Was Likely That Death Would Otherwise Ensue," Fordham Law Review 33 (March 1965): 518.
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Perhaps a statute could be drafted that would effectively balance the rights involved. If the patient should refuse to submit to treatment where there is, in the consensus of competent medical opinion, a strong chance to save his life, the court should order the treatment. If there is only a questionable chance of success, he should be free to reject it.63
The Dilqard case was important since it dealt with an adult, but the issue was only raised, not settled.
Application of President and Directors of Georgetown College
Mrs. Jesse E. Jones, age twenty-five and mother of a seventeen-month-old child, was admitted to the hospital suffering from a ruptured ulcer. She had already lost two thirds of her body’s blood. She and her husband refused consent for a transfusion as Jehovah’s Witnesses. An attempt to obtain a court order from a judge with the District Court brought no results. Application was then made to a judge with the Court of Appeals. This judge proceeded to the hospital where he conferred with the patient, her husband, hospital staff, and at least one dozen physicians.64 The condition of Mrs. Jones was critical. All of the physicians agreed that without a transfusion she would die. With them she had a better than 50 percent chance of surviving. The husband told the judge of his religious
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63 Ibid, 519.
64 Application of President and Directors of Georgetown College, 331 F.2d 1000, 1001, 1006 (C. of A., D. or C. Cir. 1964).
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objections, but he said that "if the court ordered the transfusion, the responsibility was not his."6 The judge tried to communicate with Mrs. Jones, but her grave condition made it difficult:
The only audible reply I could hear was "Against my will." It was obvious that the woman was not in a mental condition to make a decision. I was reluctant to press her because of the seriousness of her condition and because I felt that to suggest repeatedly the imminence of death without blood might place a strain on her religious convictions. I asked her whether she would oppose the blood transfusion if the court allowed it. She indicated, as best I could make out, that it would not then be her responsibility.66
In a nearby room the judge then met with about ten to twelve doctors, counsel for the hospital, and the husband of the patient. The President of Georgetown University, Father Bunn, arrived and pleaded with Mr. Jones to consent to a transfusion. Bunn tried to explain to him that a transfusion was not the same as drinking blood. Mr. Jones was unmoved, so the judge signed an order for blood to be administered. In the written decision the court reviewed case evidence that supported compulsory medical treatment for children and even of adults when a contagious disease was involved. Here, though, it was admitted that there was no sick child or contagious disease. Nevertheless, there were important analogies that applied. Since Mrs. Jones was in extremis and hardly compos mentis, she could be compared to a child. She was no more able to decide competently for
________________
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65 Ibid, 1007.
66 Ibid.
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herself than a child. If a parent could not forbid treatment for a child, then a husband had no right to forbid treatment for a wife.67
A second analogy with the cases involving children related to the parens patriae doctrine. The state did not allow parents to abandon children. The refusal of medical treatment by Mrs. Jones would result in "this most ultimate of voluntary abandonments."68 Mrs. Jones had a responsibility to the community to care for her infant, so the state had an interest in preserving her life.
Next the decision dealt with the question of suicide. If suicide was illegal, a person should not be allowed to refuse necessary medical treatment if death was likely to occur without it. Questions about intent or misfeasance and nonfeasance (action versus failure to act) were called "quibbles." Since self-homicide was not necessarily a crime in the District of Columbia, such a line of argumentation could not be used. The suicide approach was then rejected by the court, though, on the basis of a "quibble":
The Gordian knot of this suicide question may be cut by the simple fact that Mrs. Jones did not want to die. Her voluntary presence in the hospital as a patient seeking medical help testified to this. Death, to Mrs. Jones, was not a religiously-commanded goal, but an unwanted side effect of a religious scruple. There is no question here of interfering with one whose religious convictions counsel his death, like the Buddhist monks who set themselves afire. . . . Mrs. Jones wanted to live.69
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67 Ibid., 1008.
68 Ibid.
69 Ibid 1009.
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Next the role of the doctors was considered. Mrs. Jones had not refused all medical attention. She sought out the hospital and had placed a legal and ethical burden upon them to care for her.70 She was exposing them to the risk of civil and criminal liability by the tough choice they had to make. The case only gave cursory attention to the protection a waiver form would provide.71
Another argument found in Georgetown, subsumed under the discussion of the position of the doctors and the hospital, dealt with responsibility for the transfusion. Mrs. Jones believed she was not morally responsible for receiving a transfusion as long as she had not consented to it. Her life could be preserved without a sacrifice of her religious beliefs if the law undertook the responsibility for authorizing the transfusion without her consent. This important distinction was used by other judges in later cases.
The final and "compelling" argument for granting the emergency order to transfuse
. . . was that a life hung in the balance. There was no time for research and reflection. Death could have mooted the cause [sic] in a matter of minutes, if action were not taken to preserve the status quo. To refuse to act, only to find later that the law required action, was a risk I was unwilling to accept. I determined to act on the side of life.72
Mrs. Jones recovered very quickly after the
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70 Ibid., 1007.
71Ibid., 1009.
72Ibid., 1009-10.
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transfusion was administered and requested a rehearing. The rehearing was denied. In a dissenting opinion on whether or not a rehearing should have been granted to Mrs. Jones, Justice Burger penned some important words about the compulsory medical treatment issue. He recognized that the medical profession was placed in a difficult position with difficult choices to make. 73owever, he expressed doubt that a "legally protected right" could be derived out of a moral obligation to preserve life which the physicians felt.74
He then made a statement in favor of the individual’s right to refuse treatment:
Mr. Justice Brandeis, whose views have inspired much of the "right to be let alone" philosophy, said in Olmstead v. United States, 277 U.S. 438, 478 . (dissenting opinion): "The makers of our Constitution * * * sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized man. Nothing in this utterance suggests that Justice Brandeis thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well-founded sensations. I suggest he intended to include a great many foolish, unreasonable and even absurd ideas which do not conform, such as refusing medical treatment even at great risk.75
Burger urged judicial restraint. He quoted Cardozo as saying judges should not act like a knight "roaming at will
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73 Application of President and Directors of Georgetown College, 331 F.2d 1010, 1015 (C. of A., D. of C. Cir. 1964).
74 Ibid., 1016.
75 Ibid., 1016-17.
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in pursuit of his own ideal of beauty or of goodness."76 He concluded his dissent with these words: "Some matters of essentially private concern and others of enormous public concern, are beyond the reach of judges."77
The Georgetown decision drew a lot of attention and has probably been cited more than any other case in this category.78 While most of the reviews were not judgmental, a few were quite critical. One said, "The concept of the state stepping into a person’s religious life ‘for his own
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76 Cardozo, The Nature of the Judicial Process, cited by Ibid., 1017.
77 Ibid., 1018.
78 "Federal Courts--Review by Court of Appeals--Court of Appeals Declines To Review Extraordinary Writ Issued by Single Appellate Judge Which Authorized Hospital To Administer Transfusions Over Objections of Patient," Harvard Law Review 77 (June 1964): 1539-46; David G. Hanrahan, "Constitutional Law--Single Circuit Judge Issues Writ Permitting Blood Transfusions To Be Administered to Patient Who Refused To Consent on Religious Grounds," Boston University Law Review 45 (Winter 1965): 125-32; Doris R. Bray, "Procedural Rules--Emergency--Judge’s Discretion," North Carolina Law Review 43 (February 1965): 450-59; "First Amendment Freedom of Religion--Court Ordered Blood Transfusions," Northwestern University Law Review 60 (July-August 1965): 399-407; John U. Bell, "Constitutional Law--Religious Freedom--Adult Jehovah’s Witness, In Extremis, Ordered By Court To Submit To Blood Transfusion Where Both Parent And Husband Had Refused To Consent On Religious Grounds," South Carolina Law Review 16 (1964): 552-59; Louis J. Bovasso, "Constitutional Law--Justiciable Controversy--Federal Rules of Civil Procedure," Catholic University Law Review 13 (May 1964): 188-90; Eugene R. Preans, "Courts--Authority To Compel Adult To Accept Medical Treatment," Tulane Law Review 39 (December 1964): 125-29; John D. O’Connell, "The Right to Die--A Comment on the Application of the President and Directors of Georgetown College," Utah Law Review 9 (Summer 1964): 161-71; and "Constitutional Law--Transfusions Ordered for Dying Woman over Religious Objections," University of Pennsylvania Law Review 113 (1964): 290-97.
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good’ is repugnant to the spirit of the first amendment."79 Another writer agreed with Burger that the situation called
. . . for judicial restraint rather than judicial action. Otherwise, ours will be a nation which requires its citizens to risk their lives in defense of their country, but forbids them to risk their lives for their religious convictions 80
Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson
Willimina Anderson was beyond the thirty-second week of her pregnancy. Due to the condition placenta praevia she would probably hemorrhage severely.81 Both she and her unborn child would die unless a blood transfusion was administered. Mrs. Anderson refused any blood due to her religious convictions as a Jehovah’s Witness. The hospital sought a court order, but the trial court said it could not intervene in the case of an adult or with respect to an unborn child. The hospital appealed the decision.
The Supreme Court of New Jersey reversed the decision. The court cited its own case, Perricone, as justification for ordering a transfusion for a child over the
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79 Richard L. Beatty, "Court Authorized Blood Transfusion Over Adult Patient’s Religious Objection--A Violation of the First Amendment?" Montana Law Review 26 (Fall 1964): 104.
80 "Equity--Compulsory Medical Aid to Adult Who Objects on Religious Grounds," Vanderbilt Law Review 18 (March 1965): 775.
81 Raleigh Fitkin--Paul Morgan Memorial Hospital v. Anderson, 201 A.2d 537 (NJ 1964).
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religious objections of the parents. Another New Jersey case was used to demonstrate that "the unborn child is entitled to the law’s protection."82 Authorization was given to the physician in charge to administer a transfusion if it were necessary. The logic of the decision was that "the welfare of the child and the mother are so intertwined and inseparable that it would be impracticable to attempt to distinguish between them."83
The argument in Raleigh Fitkin seems to be the "conduit" theory where the mother is the vehicle or means by which the unborn child can be reached.84 In essence the parens patriae doctrine was extended to the mother due to her pregnancy. By this line of reasoning a transfusion was ordered for a competent adult without the court having to confront the real constitutional issue directly. The case drew the attention of several legal reviewers and was widely publicized in the daily press.85
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82 Ibid., 538.
83 Ibid.
84 Richard E. Steinbronn, "Health--Compulsion of Adult of Sound Judgment to Submit to Blood Transfusions in Spite of Religious Objections," Notre Dame Lawyer 40 (December 1964): 130.
85 Ibid 126-31; "Constitutional Law--Freedom of Religion--New Jersey Supreme Court Orders Pregnant Jehovah Witness To Consent to Blood Transfusion To Save Unborn Child," Fordham Law Review 33 (October 1964): 80-86; and Edward C. Mengel, Jr., "Constitutional Law--Freedom of Religion--Blood Transfusions May be Administered to Expectant Mother Despite Her Religious Objections if Necessary to Save Her Life or That of Her Child," Villanova Law Review 10 (Fall 1964): 140-46.
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What was not known very widely is that the actual transfusion occurred after the baby was delivered. The court order authorized a transfusion on a pregnant woman to save the unborn child. The failure to cover the situation after delivery in a specific manner put Mrs. Anderson’s physician in a difficult position:
The physician in charge of the delivery had to determine for himself if the court order authorized him to administer blood to save Mrs. Anderson, even after the child had been delivered and separated from the mother in every medical sense.86
The failure to foresee and plan for such a situation means that Raleigh Fitkin did not clear the confused situation of compulsory medical treatment of an adult Jehovah’s Witness any more than Georgetown did. The progression of cases from compulsion of a transfusion of an infant to transfusion of an incompetent adult to transfusion of a competent adult was anticipated in Raleigh Fitkin, though:
We have no difficulty in so deciding with respect to the infant child. The more difficult question is whether an adult may be compelled to submit to such medical procedures when necessary to save his life.87
The Supreme Court of New Jersey would speak to that issue soon.
In re Brooks’ Estate
In May of 1964 Bernice Brooks was in the McNeal
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86 Steinbronn, "Compulsion of Adult," p. 130.
87 Raleigh Fitkin--Paul Morgan Memorial Hospital v. Anderson, 201 A.2d 537, 538 (NJ 1964).
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General Hospital of Chicago with a peptic ulcer. She and her husband were Jehovah’s Witnesses and had informed their medical doctor of their religious convictions about blood transfusions numerous times in the past two years. Mrs. Brooks had given the booklet Blood, Medicine and the Law of God to her physician. She had signed a document releasing her physician and the hospital from all civil liability from any failure to administer a blood transfusion. She was then assured that there would be no more efforts to persuade her to accept blood.88
In spite of these events Dr. Demange and several attorneys sought a court order for appointment of a conservator for authorization of a blood transfusion. No notice of their appearance before the probate division of the circuit court was given to the family. A conservator was appointed and a transfusion was administered, apparently with success. Once the Brookses were aware of these events they sought to have all orders in the conservatorship proceedings expunged and the petition filed dismissed.89
There were several minor issues worth considering such as the failure to notify the family of the proceedings, but the court concentrated on the fundamental issue:
When approaching death has so weakened the mental and physical faculties of a theretofore competent adult
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88 In re Brooks’ Estate, 205 N.E.2d 435, 436-37 (IL 1965)
89 Ibid.
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without minor children that she may properly be said to be incompetent, may she be judicially compelled to accept treatment of a nature which will probably preserve her life, but which is forbidden by her religious convictions, and which she has previously steadfastly refused to accept, knowing death would result from such refusal?90
The decision assumed that no reported decision on this issue had been presented before, although the Dilgard case is parallel.
In sifting through the issues, various precedents suggested by the state were rejected, namely compulsory vaccination, polygamous marriage proscription, prohibition of religious snakehandling, and the Labrenz and Georgetown cases. Vaccination cases involved a true threat to society of contagious disease. Polygamous marriage was banned as deleterious to public morals and welfare. The snakehandling cases involved affirmative action deemed detrimental to the public welfare. Labrenz involved a minor child.91 The Georgetown case was readily distinguishable from the present one since it involved a person in extremis who was the mother of minor children. The court also interpreted opinions filed by other members of the Georgetown court at a denial for rehearing "as suggesting a majority of the court would have refused the order."92
The court also contended that the recent Raleigh Fitkin case was different since it involved a pregnant woman. The court reviewed applicable constitutional law with the
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90 Ibid, 438.
91 Ibid., 439.
92 Ibid., 440.
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expected citations of Reynolds and Prince. Other cases were cited which placed a strong emphasis on religious freedom.93 Special emphasis was given to these words from a school prayer case:
The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.94
An important distinction was found in the concurring opinion of Justice Brennan in the same case:
But we must not confuse the issue of governmental power to regulate or prohibit conduct motivated by religious beliefs with the quite different problem of governmental authority to compel behavior offensive to religious principles .95
The lengthy quotations employed in Brooks were designed to demonstrate the controlling elements the court believed were determinative. Individuals should have the freedom of religious belief and exercise subject only to the limitation of an action that "endangers, clearly and 96 presently, the public health, welfare or morals." No such danger could be found to society in the present situation, so
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93 West Virginia State Board of Education v. Barnette, 319 U.S. 624 was quoted along with part of Justice Black’s and Douglas’ concurring opinion in Ibid., 441.
94 School District of Abington Township v. Schempp, 374 U.S. 203; cited by Brooks, 441.
95 Ibid.
96 Ibid.
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the court concluded:
Even though we may consider appellant’s beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith in the form of a conservatorship established in the waning hours of her life for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles, and previously refused by her with full knowledge of the probable consequences. In the final analysis, what has happened here involves a judicial attempt to decide what course of action is best for a particular individual, notwithstanding that individual’s contrary views based upon religious convictions. Such action cannot be constitutionally countenanced. While the action of the circuit court herein was unquestionably well-meaning . . . we have no recourse but to hold it has interfered with basic constitutional rights. 97
Brooks drew a great deal of attention with more commentators being favorable than critical of the decision.98
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97 Ibid., 442-43.
98 Jack E. Farley, "Constitutional Law--Freedom of Religion--Adult Cannot be Compelled to Accept Medical Treatment which is Contrary to Religious Beliefs," American University Law Review 15 (December 1965): 110-14; Robert A. Scheffing, "Constitutional Law--Religious Freedom--Right To Reject Blood Transfusions Where No State Interest Involved," Arizona Law Review 7 (Spring 1966): 315-18; Jeffrey C. Danek, "Constitutional Law--Religious Liberty--Compulsory Medical Treatment Against the Will and Religious Beliefs of a Patient Violates the Due Process Clause of the Fourteenth Amendment," Chicago-Kent Law Review 43 (Spring 1966): 110-14; Alvin Ezrin, "Constitutional Law--Refusal of Blood Transfusions by an Adult on Religious Grounds," George Washington Law Review 34 (October 1965): 159-67; "Constitutional Law--Personal Rights: Religious--Court Order Authorizing Blood Transfusion Refused on Religious Grounds Violates Constitutional Guarantee of Religious Freedom," Harvard Law Review 79 (January 1966): 675-76; Thomas R. Haggard, "Constitutional Law--Religion--Court Authorization of Blood Transfusion to Patient Whose Religious Beliefs Prohibit the Acceptance of Blood Violates His Freedom of Religion," Texas Law Review 44 (November 1965): 190-95; Hazel Armenta Straub, "Constitutional Law--Freedom of Religion and the Police Power," West Virginia Law Review 68 (December 1965): 65-69; Louis C. Roberts, III, "Compelled Medical Aid v. Religious Freedom," Washington & Lee Law Review 23 (Spring 1966): 154-60; "Religious Freedom And Compulsory Blood Transfusion For Adult Jehovah’s Witness," Washington Law Review 41 (January 1966): 124-30. Of the ten reviews of the case cited here, four were favorable, two were critical, and four did not pass judgment.
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To some it was a needed affirmation of religious freedom after the Georgetown and Raleigh Fitkin decisions. One perceptive commentator questioned the wisdom of civil authorities being asked to weigh and balance relative values of an individual’s right versus the interests of society in brief, hurried moments as someone’s life was ebbing away.99 Regardless of this problem, though, Brooks is a case of great significance for the current study.
United States v. George
Elishas George was admitted into the Veterans Administration Hospital in West Haven, Connecticut, on 17 March 1965 at about 11:30 A.M. He was suffering from a bleeding ulcer. As a Jehovah’s Witness he refused any blood transfusions. That day application was made to the court orally for an order to administer a transfusion. Upon being informed that the patient’s condition was precarious but not extreme, the court refused to grant an order and planned a hearing the next day.100
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99 "Authorization of Involuntary Blood Transfusion for Adult Jehovah’s Witness Held Unconstitutional--In re Brooks Estate," Michigan Law Review 64 (January 1966): 561.
100 United States v. George, 239 F.Supp. 752 (D. C. D. CT 1965).
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By 6:30 P.M. on 17 March, though, the court was informed that the patient’s condition was critical. An order was now necessary to save his life. The court arrived at the hospital by 8:00 P.M. and over the next two hours interviewed five doctors, Mrs. George, Mr. George, several members of the Jehovah’s Witnesses, and Mrs. Gradie George, the mother of the patient. Mr. and Mrs. George were opposed to a transfusion. They had signed releases relieving the hospital of liability for not administering one.101
Mr. George’s mother was not opposed to a transfusion. She was not a member of the Witnesses. Medical testimony said at least five pints of whole blood was needed. Tests indicated the patient had already lost 60 to 65 percent of his red blood cells. Any further bleeding would lead to shock and probably death. At the time of the interview Mr. George was "coherent, rational and rather strong."102
When the court spoke with Mr. George, his "first remarks were that he would not agree to be transfused but would in no way resist a court order permitting it, because Court’s will and not his own."l03 it would be the Although not expressly stated by Mr. George or in the case, the implication is obvious. Mr. George could stay pure in his religious convictions and still live if the judge would order the transfusion. The order was signed and the transfusion
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101 Ibid.
102 Ibid.
103 Ibid.
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was administered. By 22 March Mr. George was "no longer in extremis" and sufficiently rehabilitated that the motion was dissolved.
An additional factor was given weight in George:
In the difficult realm of religious liberty it is often assumed only the religious conscience is imperiled. Here, however, the doctor’s conscience and professional oath must also be respected. In the present case the patient voluntarily submitted himself to and insisted upon medical care. Simultaneously he sought to dictate to treating physicians a course of treatment amounting to medical malpractice. To require these doctors to ignore the mandates of their own conscience, even in the name of free religious exercise, cannot be justified under these circumstances. The patient may knowingly decline treatment, but he may not demand mistreatment.104
No evidence was given to support the assertion that the doctors would be guilty of malpractice. One commentator on the case emphasized a fault in logic at this point.105 Malpractice would be to give transfusions without authorization against the patient’s directions, not failing to give it in accordance with the patient’s wishes.
Powell v. Columbian Presbyterian Medical Center
Mrs. Willie Mae Powell, the mother of six children, suffered extensive bleeding after a Caesarean section operation. As a Jehovah’s Witness she had refused to give prior authorization for any blood transfusions in spite of
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104 Ibid., 754
105 "Religious Freedom And Compulsory Blood Transfusion For Adult Jehovah’s Witnesses," Washington Law Review 41 (January 1966): 124-30.
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pleas from hospital staff, her husband, and other members of the family. Her condition was critical. The hospital did not request a court order, believing it had fulfilled its obligations to the patient by obtaining a release form. The husband and other family members then petitioned the court for an order to administer blood such as was deemed necessary by the attending physician to save the patient’s life.106
In reporting the case the judge revealed his own feelings on the matter in an emotional statement:
This matter generated a barrage of legal niceties, misinformation and emotional feelings on the part of all concerned--including the Court personnel. nor could I forget for one moment my convictions with regard to the individual’s right to be let alone or--crucially important--that a human life hung in the balance. Never before had my judicial robe weighed so heavily on my shoulders. . How legalistic minded our society has become, and what an ultra-legalistic maze we have created to the extent that society and the individual have become enmeshed and paralyzed by its unrealistic entanglements! I was reminded of "The Fall" by Camus, and I knew that no release--no legalistic absolution--would absolve me or the Court from responsibility if I, speaking for the Court, answered "No" to the question "Am I my brother’s keeper?" This woman wanted to live. I could not let her die!107
The only legal precedent cited was Georgetown. The ultimate decision, though, was based upon what the judge called "more fundamental precepts."108 Mrs. Powell’s problem was that she could not consent to receiving blood. She
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106 Powell v. Columbian Presbyterian Medical Center, 267 N.Y.S.2d 450, 451 (NY 1965).
107 Ibid., 451-52.
108 Ibid, 451.
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wanted to live. Her plight could be resolved if the judge would direct the use of blood for her, and he did.
Holmes v. Silver Cross Hospital
Ernest J. Holmes, a twenty-year-old married male, was involved in a traffic accident on 12 August 1969. He was fully conscious and competent when he refused any transfusions on religious grounds. The members of his family who were present also refused to give consent. Holmes signed a release form for surgery without any transfusion. Four hours later when he lost consciousness an effort was made, without notification of the family, to have him declared incompetent as a minor in order to have a conservator for the purpose of authorizing a transfusion. Notwithstanding the transfusion, Holmes died and the family filed suit saying he was deprived of constitutionally protected rights.109
In addressing whether or not Holmes right to the free exercise of his religion was violated, several precedents were cited as "conflicting in result."110 One common element in all of them, though, was that before the state could restrict a person’s religious beliefs, it "must proffer some substantial interest it claims to possess which must be protected even at the cost of restriction of the free exercise of religion by its citizens."111 The decision cited
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109 Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128 (U.S. D. C. N. D. IL 1972).
110 Ibid., 129.
111 Ibid.
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Brooks as persuasive, even if it was not controlling. Violation of an individual’s religious beliefs might be well intentioned, but it violated First Amendment freedoms in a case like this. The existence of a wife and a young child did not provide a sufficient state interest. The judge and the court-appointed guardian enjoyed judicial immunity in this suit. Motions from the defendant hospital and doctors to dismiss were denied.112
John F. Kennedy Memorial Hospital v. Heston
Delores Heston, age twenty-two and unmarried, was severely injured in an automobile accident that ruptured her spleen. Without an operation it was determined that she would die, and surgery without blood transfusions would also prove fatal. Miss Heston was in shock and incoherent when she arrived at the hospital. She and her parents were Jehovah’s Witnesses. Her mother refused to consent to a transfusion and signed a release for the hospital. The father could not be reached. At 1:30 A.M. application was made by the hospital for appointment of a guardian to give consent for the needed transfusions. It was granted. Surgery was performed at 4:00 A.M. Blood was given and Miss Heston survived. The defendants moved to vacate the order. The trial court declined to do so. The Supreme Court of New
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112 Ibid., 136.
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Jersey declined to reverse the decision.113
For precedents the court appealed to their own previous decisions in Perricone and Raleigh Fitkin. The court recognized that the current case was different, though, since no infant was involved. The court could have approached the decision on the basis of Miss Heston being incompetent, since she showed signs of shock when first brought to the hospital. In this way the New Jersey Supreme Court could have avoided confronting the constitutional issues directly once again. Instead they chose to use this case to deal with the question they had "reserved" in Raleigh Fitkin. 114
The dichotomy between belief and action was noted and governmental limitation of religious freedom was illustrated with respect to vaccination of children, religious handling of snakes, fluoridation of drinking water, and polygamous marriage.115 The case also discussed whether or not refusal to accept lifesaving medical treatment could be parallel to suicide, introducing that discussion with the assertion: "It seems correct to say there is no constitutional right to 116 choose to die." The decision surveyed the view of New
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113 John F. Kennedy Memorial Hospital v. Heston, 279 A.2d 670, 671 (NJ 1971).
114 Ibid 672.
115 Ibid., 671-72.
116 Ibid 672.
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Jersey law toward suicide.117 Although it is an offense of which nothing is ordinarily gained by prosecution and is rarely charged for this reason, society does have an interest in the individual in order to try to prevent suicide. Great risks are often taken by representatives of the government to save a person from himself.
Is a refusal to receive transfusions the same? The Hestons representatives contended that there is a difference between passively submitting to death and actively seeking it. Suggesting that this distinction is merely verbal, the court argued, "If the State may interrupt one mode of self-destruction, it may with equal authority interfere with the other."118 In compulsory medical treatment if the medical option is not itself laden with the risk of death or serious infirmity, Heston contends that "the State’s interest in sustaining life . . . is hardly distinguishable from its interest in the case of suicide."119
Next Heston justified the court’s stance on the creed and consciences of medical professionals. Not allowing doctors to administer blood transfusions in life and death situations placed unrealistic burdens on them and hindered them from following their professional creed of preserving
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117 Ibid. One interesting argument forwarded to support a state interest in the life of individual citizens was the mandating of protective devices by the legislature for motorcyclists.
118 Ibid, 673.
119Ibid.
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life. Allowing them to follow their professional standards appeared to be the best course of action. "The solution sides with life, the conservation of which is, we think, a matter of State interest."120
Finally the decision discussed the proper tests to use in cases of this type. After noting a law review article, the court agreed that the "clear and present danger" test is better for free speech decisions and not the appropriate criteria here. The correct test would be that of a "compelling state interest."121
The Heston case drew a tremendous amount of attention in legal literature, most of it critical.122 The attempt to
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120 Ibid.
121 Ibid., 674.
122 Donald H. Snell, "Can an Adult Be Compelled To Submit to a Blood Transfusion Against His Religious Beliefs?" Southwestern Law Journal 25 (December 1971): 745-51; W. Robert Arnent, "Constitutional Law--Compulsory Medical Treatment for an Adult--The Right of an Adult to Refuse Lifesaving Medical Treatment Based upon the Free Exercise Clause of the First Amendment," Duguesne Law Review 11 (Winter 1972): 242-53; T. R. Bossert, "Freedom of Religion--One Cannot Refuse Life-Saving Medical Treatment On Religious Grounds," Dickinson Law Review 76 (Spring 1972): 606-13; "Constitutional Law--Religious Freedom--State May Authorize Forced Medical Treatment of a Competent Adult to Prevent Death Despite Religious Objection," Fordham Law Review 41 (October 1972): 158-66; James F. Hoover, "An Adults Right To Resist Blood Transfusions: A View Through John F. Kennedy Memorial Hospital v. Heston," Notre Dame Lawyer 47 (February 1972): 571-87; Thomas D. Monte, Jr., "Constitutional Law--Freedom of Religion--Judicially Mandated Blood Transfusion for Adult Jehovah’s Witness," Seton Hall Law Review 3 (Spring 1972): 444-56; Beverly A. Gazza, "Compulsory Medical Treatment And Constitutional Guarantees: A Conflict?" University of Pittsburgh Law Review 33 (Spring 1972): 628-37; and "Freedom of Religion--’There Is No Constitutional Right to Choose to Die, "‘ University of Richmond Law Review 6 (spring 1972): 412-19. The view of Snell was somewhat neutral while Arnent was favorable. All others were unfavorable toward the decision.
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parallel refusal of blood transfusions with suicide brought widespread criticism. Most reviewers concluded that the case did not really establish any compelling interest of society to justify an intrusion into religious and other individual rights. One interpreter claimed "the opinion ventures too far into constitutionally protected areas of religious freedom."123 Another reviewer believed that it threatened "to restrict unreasonably religious freedom in this country."124
In re Osborne
In 1972 Charles Osborne suffered severe injuries and internal bleeding due to an accident where a tree fell on him. As a Witness he refused blood which the medical staff considered necessary to save his life. A petition for a court order was taken to the judge’s home that night. Mr. Osborne’s wife, brother, and grandfather were present also. After consultation with them the judge went to the hospital to talk to Mr. Osborne and the medical personnel. It was found that Mr. Osborne was aware of the implications of his refusal and was fully competent. His beliefs were longstanding. His father had died a few months before, refusing blood, a decision which the family supported. Although he
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123Bossert, "One Cannot Refuse," 608.
124 "‘There Is No Constitutional Right, ‘" 418.
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had two young children, the family’s financial situation would remain secure if Mr. Osborne died.125
Of crucial importance in the judge’s decision was the interview with Mr. Osborne. Knowing that in George a patient would not give consent but, at the same time, would not oppose a court order, the judge sought a similar solution to Mr. Osborne’s case. When asked if he would consider himself blameless before God if the court ordered the transfusion against his wishes, Mr. Osborne said he would be accountable before God, even to the degree of a loss of everlasting life in the new world, if he "unwillingly" received whole blood through transfusion.126 The judge declined to order a transfusion. On appeal this decision was upheld. Mr. Osborne recovered without any tranfusions and was discharged from the hospital.
Hamilton v. McAuliffe
On the evening of 12 December 1973 Hubert Hamilton, a thirty-five-year-old Jehovah’s Witness, was shot in the chest. Two physicians determined that he would die without immediate surgery and a blood transfusion. Hamilton consented to surgery but refused the transfusion on religious grounds and his constitutional right to privacy. His wife
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125 In re Osborne, 294 A.2d 372, 373-74 (DC C. of A. 1972).
126 Ibid., 375.
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and two brothers filed a petition with the court for a transfusion to be administered. After an emergency hearing at which it was recognized that Hamilton was separated from his wife and he was the sole support for a two-year-old child, a transfusion was ordered and administered. Hamilton later filed an appeal of the order. The appeal was dismissed as moot.127
Eleven months later Hamilton filed a declaratory judgment action against the judge to declare his transfusion order "erroneous."l28 He sought no monetary damages. In light of judicial immunity, such an approach was the only way in which Hamilton could seek to redress the violation of his civil rights which he had suffered. After one more appeal the court declared there was no justifiable controversy.
Matter of Melideo
On 3 December 1976 a dilation and curettage was performed on Kathleen Melideo, a twenty-three-year-old childless (and non-pregnant) married woman. Within twenty four hours she developed a uterine hemorrhage which dropped her hemoglobin count from thirteen grams to under six grams. As a Jehovah’s Witness she refused a blood transfusion and signed release documents for the hospital. The hospital made
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127 Hamilton v. McAuliffe, 353 A.2d 634, 635-36 (MA C. of A. 1976).
128 Ibid, 636.
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application for authority to administer a transfusion. The hospital attorney admitted there "was no question of respondent’s competence to make the decision."129 Nevertheless, the application sought authority to perform a transfusion or any other surgery necessary to save her life or protect her health if required in the opinion of a qualified physician. There was the potential of cardiac failure or brain damage if she suffered stress or an infection during her recovery period. The Melideos did not appear at the hearing. Mr. Melideo left a telephone message with the court clerk that he was going to the hospital. He said he would leave matters "in the hands of the judge."130
In the decision the court said the general rule was that
. . . every human being of adult years and sound mind has a right to determine what shall be done with his own body and cannot be subjected to medical treatment without his consent. . . Specifically, where there is no compelling state interest which justifies overriding an adult patient’s decision not to receive blood transfusions because of religious beliefs, such transfusions should not be ordered. . . . Such an order would constitute a violation of the First Amendment’s freedom of exercise clause.131
The two exceptions of a patient who is not compos mentis in order to authorize treatment or where the parens patriae doctrine impinges were not relevant here, so her refusal to
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129 Matter of Melideo, 390 N.Y.S.2d 523, 524 (NY 1976)
130 Ibid.
131Ibid.
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submit to a transfusion, even though it may be necessary to save her life, was upheld.
Staelens v. Yake
Custody of the child Ronald Staelens was granted for the purpose of consenting to a blood transfusion. The parents brought a civil rights action against the physicians, the hospital, and the judge claiming that their constitutional rights were violated, in particular their right to the free exercise of their religion. The complaint was dismissed. One reason for dismissal was that the state had the authority due to Prince and other cases to grant custody for the purpose of consenting to medical treatment.’32
Broward Medical Center v. Okonewski
Linda Okonewski was a twenty-one-year-old pregnant Jehovah’s Witness. Delivery was expected in early September 1977 by Caesarean section which sometimes requires a blood transfusion. Two orders were sought. The obstetrician sought one in case a transfusion was needed during surgery. The pediatrician of the unborn infant sought a second court order in case an exchange transfusion was necessary for the infant due to existent RH problems. After a hearing both motions were granted. The case became unique in that the court authorized all physicians and hospitals in the state to
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132 Staelens v. Yake, 432 F.Supp. 834 (U.S. D. C., N. D. IL 1977).
168
do the same in case Mrs. Okonewski came to them. A summary of these terms was delivered to all medical facilities in the state by the various sheriffs in each locale.133
Soon it was discovered that the expectant mother had fled to California and checked into a hospital there. The Florida court order was extended to the hospital in California, a California judge announcing that he intended to enforce the extended jurisdiction. When Mrs. Okonewski left the California hospital, the order was extended to all California hospitals. Soon she checked back into the California hospital, had the baby by Caesarean section without a blood transfusion. The baby did well without an exchange or regular transfusion.134 This unusual cross-country flight gained this case nation-wide attention.
Crouse Irving Memorial Hospital v. Paddock
On 14 January 1985 Crouse Irving Memorial Hospital petitioned for an order to authorize transfusions for Stacey Paddock and her child. A Caesarean section was scheduled for 17 January. Mrs. Paddock’s blood count was already low and she was anemic. In her case blood loss from the delivery would likely be excessive since it would be necessary to cut her placenta, normally the site of blood loss even without cutting. For religious reasons neither Mr. nor Mrs. Paddock
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133 Broward Medical Center v. Okonewski, 46 Fla. Supp. 120, 121-22 (FL Cir. C. 1977).
134 Ibid., 121-23.
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would consent to a transfusion.135 The decision conceded that Mrs. Paddock was an adult of sound mind and deep religious convictions, but her refusal of blood while requesting other treatment was viewed as putting
. . . the hospital and her doctors in an untenable position. . .When a patient puts her doctor in charge of a surgical procedure, she necessarily makes him responsible for the conduct of the operation. Every such grant of responsibility should be accompanied by authority sufficient to properly carry out the delegated responsibilities. Certainly if the medical personnel are requested to undertake a delivery which will entail incisions and this is known to the patient, the attending physicians must be permitted to stabilize the patient from the resulting loss of blood.136
The most significant portion of this opinion is that transfusions were ordered for Mrs. Paddock after delivery. The court ruled:
It is my judgment therefore that the attending physician may continue to administer blood transfusions to Mrs. Paddock even after the moment of delivery as is necessary to stabilize her condition.137
St. Mary’s Hospital v. Ramsey
Mark Ramsey was a twenty-seven-year-old kidney dialysis patient in Florida when his case was considered in 1985. The hospital sought an order for blood transfusions thought necessary to save his life but which the patient
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135 Crouse Irving Memorial Hospital v. Paddock, 485 N.Y.S.2d 443, 444 (NY 1985).
136 Ibid 445-46.
137 Ibid., 446.
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refused as a Witness. Mr. Ramsey was found to be mentally alert and fully competent. Parens patriae could not be extended to him very easily. He had only one child who lived in another state with Mr. Ramsey’s former wife. He paid $50 per month in child support, but the facts showed that the child could not be considered abandoned if Mr. Ramsey died. The court refused to order a transfusion for him and this refusal was upheld upon appeal.138
In the written opinion four arguments were discussed. First, was the preservation of life a compelling enough interest to justify state intervention? The court ruled that the constitutional right of privacy, freedom to choose, and the right of self-determination were just as compelling. Second, no third parties needed the court’s protection. His refusal posed no danger to others, not even his child. Third, his refusal could not be equated with suicide since he wanted to live, not die. Fourth, the ethics of medical practice did not make a transfusion necessary since it was treatment against his will. The case closed with a question proposed for the Florida Supreme Court: "Can a competent adult patient refuse a blood transfusion without which he may well die?"139
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138 St. Mary’s Hospital v. Ramsey, 465 So.2d 666 (FL D. C. of A. 4th D. 1985).
139 Ibid., 669.
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Application of Jamaica Hospital
On 20 April 1985 a judge conducted a hearing at the bedside of a female patient who was eighteen weeks pregnant. Her condition was critical due to bleeding from esphogeal varices. Because of her faith as a Jehovah’s Witness, she refused a transfusion. The judge asked if the family had been notified. He found that she was single and the mother of ten children. Her only other designated next of kin was a sister who was unavailable. The judge considered the fetus as a "potentially viable human being in a life-threatening situation."140 He convened court immediately at her bedside and took sworn testimony from the attending physicians.
The judge declared in the decision that her free exercise of religion was important: "If her life were the only one involved here, the court would not interfere."’4’ Due to the life of the fetus, though, an order was given. The state’s interest in the fetus increases throughout pregnancy and becomes ‘‘ compelling’’ when the fetus reaches viability. Even though this fetus was not at that stage, the state’s interest was still significant enough to outweigh the mother’s right to refuse a transfusion on religious grounds. An additional basis for the order might have existed in the patient’s responsibility to care for minor children, but due
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140 Application of Jamaica Hospital, 491 N.Y.S.2d 898, 899 (NY 1985).
141 Ibid.
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to another justification of sufficient weight and the sparseness of precedents for the minor children argument, it was not considered.142
In re Estate of Dorone
Darrell Dorone, twenty-two years old, was an emergency patient in a Pennsylvania hospital in July 1984 due to an automobile accident. He had previously signed a medical alert card that he did not want any blood transfusions. His family, also Jehovah’s Witnesses, refused to give consent to a transfusion. The Court of Common Pleas of Lehigh County appointed the hospital administrator rather than the parents as guardian. The parents appealed that decision, claiming they should have been made guardians and that their son’s right to the free exercise of his religious beliefs was violated.143 One transfusion was given during surgery. An appeal court upheld the order for the transfusion.144
The justification for the initial transfusion order in this case was predicated upon the emergency condition of
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142 Ibid, 900.
143 Their son was not a party to the appeal, so the parents did not have standing to raise his religious rights. To decide if their rights were violated in not being appointed guardians, though, the court had to consider if the son’s rights were violated. If his rights were not violated, then the parents’ rights were not violated either.
144 In re Estate of Dorone, 502 A.2d 1271, 1273, 1276 (PA Sup. C. 1985).
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the patient. He was unconscious and without surgery, death was imminent. The surgery might cause very rapid and severe bleeding which would require a transfusion. The patient was in the operating room, being prepared for surgery, having been flown by helicopter from a New Jersey hospital near the accident site. The family was not consulted due to these emergency conditions. The request for and authorization of the blood transfusion was all conducted by telephone.145
Two days later oral petition was again made for permission to perform a transfusion during surgery due to a blood clot that had developed in the patient’s brain. The doctor at that time informed the judge that the family had signed release forms for the surgery but refused to consent to any blood transfusion because they were Jehovah’s Witnesses. Again the hospital administrator was appointed as a temporary guardian to consent to the transfusion. Before the oral order could be recorded, a phone call from a Jehovah’s Witness attorney representing the family was patched into a conference call with the judge.
This attorney referred to the patient’s medical alert card. The judge admitted that such a card had been mentioned two days before, but he had not read it or seen it. It had been left in New Jersey with the patient’s other personal effects. The attorney then read from his own similar card:
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145 Ibid., 1276.
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I direct that no blood transfusions be administered to me even though others deem such necessary to preserve my life or health. . . . I hereby release the doctors and the hospital of any liability for damages attributed to my refusal. This document is valid, even if I am unconscious, and it is binding upon my heirs or legal representatives.146
The decision could cite no Pennsylvania case where the "doctrine of substituted judgment" was used to allow refusal of lifesaving medical treatment. In other locales where this practice had been followed, the circumstances were that of an incompetent who is terminally ill or has a limited life expectancy."l47 This situation involved a young adult who, if the treatment were successful, could return to competency and a full life expectancy. While the medical alert card was evidence, other factors urged caution such as when the card was signed and the frame of mind of the patient when it was signed? Had the card been signed recently? Was it signed due to peer pressure in order to maintain solidarity with family and congregation? Would the patient abide by the card in a life and death situation? In the emergency situation the court had no way of knowing these matters and delay could mean death for the patient. Since a
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146 Ibid, 1277. The Witnesses started using medical alert cards in 1980. Representatives of the Witnesses met with representatives of the American Medical Association to clarify the significance of the cards and hopefully gain some acceptance of them from the medical profession. See "‘Medical Alert for Witnesses," Journal of the American Medical Association 246 (3 July 1981): 19.
147 In re Estate of Dorone, 502 A.2d 1271, 1277 (PA Sup. C. 1985).
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life hung in the balance, the majority determined that the order was proper.
One judge dissented. On the day of the second order for a transfusion, he contended that the judge could have interviewed the family and friends by telephone to determine the validity of the medical alert card. Knowing ahead of time that the family members and friends were committed Jehovah’s Witnesses and knowing what their testimony would be was no excuse for not hearing it. He expressed concern that a competent person’s wishes are ignored when they become incompetent, even though there is no reason to believe that one’s way of thinking would change if he could express his intent.148
Application of Winthrop University Hospital
Susan Hess was due to have kidney surgery during 1985. The hospital made application for permission to transfuse blood or blood products as necessary to save her life during or after such surgery. Transfusions are rarely needed during the kind of surgery she was to have, but the surgeon refused to operate without authorization in case blood was needed. Mrs. Hess and her husband refused to authorize a transfusion on religious grounds. The decision admitted that courts are usually without power to order compulsory medical treatment over a competent adult’s
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148 Ibid., 1280-81.
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objection. Since she was the mother of two young children, one being only one month old, the court extended the parens patriae doctrine to cover her as an adult.149
In re Brown
Mattie Brown was shot and seriously wounded on 25 August 1985. She needed prompt surgery and blood transfusions. She said she wanted to live and would undergo the surgery but, citing Bible verses to support her faith, she refused any transfusions. Her daughter was taken into custody and charged with aggravated assault on Mrs. Brown and with the poison murder of her father, Andrew Lee Brown. As the only eyewitness for the two prosecutions, the state was very interested in keeping Mrs. Brown alive. The District Attorney’s office applied for an order requiring the needed surgery and transfusions. Mrs. Brown attempted to vacate the order but was overruled. The surgery and transfusions were performed. She then brought an emergency appeal, claiming the issue was not moot. Soon after that the court was advised that more surgery and transfusions were needed.150
The court vacated the previous orders saying Mrs. Brown would "not be required to submit to or receive a transfusion of blood against her will."151 This decision was
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149 In the Matter of the Application of Winthrop University Hospital, 490 N.Y.S.2d 996, 997 (NY 1985).
150 In Re Brown, 478 So.2d 1033, 1035-36 (MS 1985).
151 Ibid, 1036.
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based upon her status as an alert, competent, non-pregnant adult with no dependent children. Chances of her recovery from the second surgery without blood were "fair." She underwent the surgery without blood and was convalescing nicely when the decision was written.
The decision made an extremely strong statement in favor of individual rights:
Rights are subject to compromise only when they collide with conflicting rights vested in others. . . . The freedom afforded Mattie Brown to exercise her religion and otherwise be let alone . . . prevails against mere interests, public or private, no matter how compelling. . . . The [rights] are, if you will, the individual’s protection against the tyranny of the majority and against the power of the state.152
Noting the dichotomy between belief and action, the decision made a very significant statement:
Where the religiously grounded ‘‘action is a refusal to act rather than affirmative, overt conduct, the State’s authority to interfere is virtually non-existent except only in the instance of the grave and immediate public danger.153
The decision noted that the Jehovah’s Witnesses "pestersome practices . . . have clogged the dockets of this nation’s courts for half a century."154 Except for what is called a "significant fumble at the beginning," namely, Gobitis, "the judiciary of this land generally has responded responsibly, to its eternal credit."155 The overruling of
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152Ibid.
153Ibid., 1037.
154Ibid.
155Ibid., 1038.
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Gobitis and the caution never to let it happen again was heeded very strongly in this case. Quoting Warren and Brandeis for support, the freedom of religion argument was bolstered by the claim of the right to privacy:
Each individual enjoys a right of privacy. Each of us has a right to the inviolability and integrity of our persons, a freedom to choose or a right of bodily self-determination, if you will.156
Finally, after noting the doctrine of informed consent, the court vacated the order so that Mrs. Brown would not have to undergo any more blood transfusions. The state’s need for an eyewitness was not deemed compelling. One judge dissented.
University of Cincinnati Hospital v. Edmond
On 19 March 1984 application for permission to transfuse blood was made by the University of Cincinnati Hospital. Marthelma Edmond, an adult female, was in critical condition from a gunshot wound to her liver. If she were not to have blood and plasma treatment, death would be probable. A hearing was held the next day at which a physician testified along with three of Mrs. EdmonVs four adult children. Also an elder of the Church of Jehovahs Witnesses and another member of the congregation testified. Family members and church members refused to consent to a transfusion and declared that the patient was opposed to receiving blood due to her religious faith. The patient was unable to testify due to her critical condition. The doctors had been unable
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156 Ibid, 1039.
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to speak with her from the time of her admittance, at first partially due to the ingestion of an excessive amount of alcohol and later due to her gunshot wound.157
After hearing testimony the court ordered the needed transfusions. Mrs. Edmond recovered and was released from the hospital. The decision noted that no case law in Ohio was directly to the point. One case was found that involved a three-year-old child. No statutes applied to an adult. The order, then, was justified on three grounds. First, the incompetency of the patient meant that necessary medical aid should be ordered to help her recover to a point of competency so that she could express her desires. Second, the burden placed on the medical profession was used as a justification:
The medical and nursing professions are consecrated to preserving life. That is their professional creed. . When a hospital and staff are involuntary hosts and their interests are pitted against the reputed beliefs of a patient, it is more reasonable and certainly more equitable to permit the hospital and its staff to pursue their functions according to their professional standards.158
Third, the judge said that if he was going to err, he wanted to err on the side of life.
Mercy Hospital v. Jackson
Ernestine Jackson was admitted to Mercy Hospital on
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157 University of Cincinnati Hospital v. Edmond, 506 N.E.2d 299, 300-301 (OH C. of Corn. P1. 1986).
158 Ibid., 301-2.
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26 February 1984 while undergoing premature labor. The hospital staff determined that a routine vaginal delivery would create serious complications for both Mrs. Jackson and her unborn child. A Caesarean section delivery was recommended. In some Caesarean deliveries the mother loses enough blood to require a transfusion, something Mr. and Mrs. Jackson refused. It was discovered later that Mrs. Jackson had been rushed to Mercy Hospital from the University of Maryland Hospital for this reason. The staff at the Maryland Hospital agreed that if Mrs. Jackson refused a transfusion there was a high risk of mortality (estimated at 40 to 50 percent).159
Immediately the hospital made oral petition to the court for authority to transfuse if necessary. Counsel was appointed for Mrs. Jackson and court was convened at her bedside. The court refused to give consent, the operation was performed sans transfusion, and Mrs. Jackson and her child survived. The hospital appealed the decision, however. Mrs. Jackson moved for dismissal since the case appeared moot. In her words, she no longer required "medical attention of the sort at issue here, and if she did, would be extremely unlikely to seek it from [Mercy Hospital]."160 Because of the likelihood of repetition, as in so many other
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159 Mercy Hospital v. Jackson, 489 A.2d 1130, 1131 (MD C. of Sp. A. 1985). Also see David H. Bamberger. "Mercy Hospital, Inc. v. Jackson: A Recurring Dilemma For Health Care Providers In The Treatment of Jehovah’s Witnesses," Maryland Law Review 46 (Spring 1987): 514-32.
160 Ibid, 1132.
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cases, mootness was denied.
Mercy Hospital’s appeal claimed that Mrs. Jackson’s religious convictions were upheld to the detriment of those of the hospital. Mercy Hospital is run by the Sisters of Mercy, a Catholic religious order that "is dedicated to the preservation of life and family through the provision of medical services."l6l A footnote in the decision quoted a Catholic cardinal on the subject: "Catholics do not need the support of civil law to be faithful to their own religious convictions and they do not seek to impose by law their moral views on other members of society."162 The decision claimed that the state must and did remain neutral.
The decision buttressed the court’s position in refusing to order the transfusion with an amicus curiae brief from the Attorney General of Maryland, submitted at the request of the court. State statutes and a "Patient’s Bill of Rights" for Maryland hospitals were also quoted. The judgment was affirmed. The key to this judgment and its affirmation is that the transfusion would only benefit the mother and would be needed by her only after the child was delivered. The child’s life was not in danger with or without the transfusion.163
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161 Ibid.
162 Ibid.
163The case was considered one more time in Mercy Hospital v. Jackson, 510 A.2d 562 (MD C. of A. 1986) but was considered moot. The court expressed its opinions on the mootness controversy. When individual circumstances in a case are determinative of the decision, mootness should be more likely since future cases can be distinguished more easily. A case turning on specific circumstances, then, would be unlikely to provide much guidance for future decisions.
182
Wons v. Public Health Trust of Dade County
On 13 April 1986 Jackson Memorial Hospital filed a petition with the Circuit Court seeking a court order to authorize allegedly lifesaving blood transfusions on Mrs. Norma Wons who refused them on religious grounds. A physician, Mr. Wons, and Mrs. Wons’ two brothers testified. The court determined that Mrs. Wons was a competent adult. She had two sons aged twelve and fourteen. Mrs. Wons mother testified that she would assist the father in taking care of the boys in the event of Mrs. Wons death. Her situation was critical. She needed a transfusion due to uterine bleeding which threatened her life. She had lost 90 percent of her red blood cells. The physician testified that in the eighteen years he had been in charge of the Intensive Care Unit he had "never taken care of a patient with a level as low as her hematocrit is at this point" and that without a blood transfusion "she will die."164
Mrs. Wons wanted to live and even in her tired, drowsy condition she said, "I will pull through." Three family members testified that they fully supported her refusal to receive blood. They realized that she might die,
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164 Wons v. Public Health Trust of Dade County, 500 So.2d 679, 681 (FL D. C. of A. 3rd D. 1987).
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but they expressed hope that she would pull through. If not, they said they still had "the day of resurrection."165 At this point counsel for the hospital urged an order for a transfusion based upon the minor children:
We respect the family’s religious beliefs, and we understand that they are very closely held beliefs. We feel the state has a compelling interest to have the children receive the benefit of their mother, her spiritual and moral guidance, and we would expect that this is a compelling state interest that would outweigh her constitutional right to refuse treatment in this case.166
The judge ruled from the bench and authorized an immediate transfusion for Mrs. Wons. His reason for overriding her religious belief was the children:
The two children . . . would be denied an intangible right they have to be reared by two loving parents, and not one, and I’ll take judicial notice of the fact that for the most part the love and the parentage of two parents is far better than one, and that we would end up therefore with better citizens. . . . I’m going to tell you straight out, and it may not be a popular decision, but I think that the right of these two children to be reared by two parents is an overriding reason.167
The judge urged the parties to appeal the decision higher due to public interest in the question.
The hospital administered blood and Mrs. Wons recovered and was discharged from the hospital. She signed an affidavit reaffirming her desire not to receive blood if her recurring problem required it. The appeal decision reversed the order saying that generally speaking courts have
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165 Ibid, 682.
166 Ibid.
167 Ibid, 683.
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granted a fully competent adult the right to refuse treatment even when they have minor children, as long as those children will be cared for in the event that the patient dies.168 Before quoting Brandeis in the Olmstead decision and the application of it in Georgetown, the court ruled:
Obviously, there are no preordained answers to such problematic questions and the results reached in these cases are highly debatable. Running through all of these decisions, however, is the courts’ deeply imbedded belief, rooted in our constitutional traditions, that an individual has a fundamental right to be left alone so that he is free to lead his private life according to his own beliefs free from unreasonable governmental interference. Surely nothing, in the last analysis, is more private or more sacred than one’s religion or view of life.169
The children of Mrs. Wons would not have been left abandoned if she had died. They would not have become wards of the state. They would have been reared by a close, loving, tightly-knit family unit. They would have lost their mother, but they would
no doubt cherish the memory of a courageous mother who in time of peril stood by her religious convictions. Indeed, that is a legacy which many living mothers would give anything to leave to their children.170
Child Custody Cases
Battaglia v. Battaglia
The Battaglias were married in the Presbyterian Church. In 1957 Valeria Battaglia became a member of the Jehovah’s Witnesses. Largely as a result of this a clash developed which led to separation. Allegedly she had
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168 Ibid, 686.
169 Ibid, 686-87.
170 Ibid., 688.
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neglected their child due to her frequent attending of meetings or working for the Witnesses. In the custody battle for their child, though, the issue of blood transfusions was crucial.
Since the Witnesses opposed blood transfusions even for children by contending that sacrificing the life of a child by such a refusal was really ‘‘ saving the child,’’ the child’s right to survival was threatened. Mrs. Battaglia’s religious freedom was granted, but the court ruled she did not have the right to impose her convictions upon the child in such a way as to threaten the child’s life:
The welfare of the child is paramount. If medical science requires a blood transfusion to preserve the child’s life, the child should not be deprived of life because the mother’s religious persuasion opposes such transfusion.171
Brief mention was made of the father’s greater economic ability to care for the child, but the mother’s religious faith was the crux of the case. If Valeria Battaglia was awarded custody, she planned on residing with her mother. The case immediately reported: "Her mother is Jehovah’s Witnesses."l72 likewise an adherent of Custody, then, was awarded to the father. What is remarkable about
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171 Battaglia v. Battaglia, 172 N.Y.S.2d 361, 362 (NY 1958).
172 Ibid., 362. On religion as a factor in custody cases see W. E. Shipley, "Religion as Factor in Awarding Custody of Children," American Law Reports 2d 66 (1959): 1410-36.
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this case is that no mention is made of any previous, present, or likely future illness in the child that had or would require a transfusion.
Levitsky V. Levitsky
This case involved a custody decision for the three children of John and Billie Jean Levitsky.173 When the Levitskys were married, they were both Roman Catholic. Mr. Levitsky was a medical doctor. Mrs. Levitsky was a registered nurse. Seven years later Mrs. Levitsky became a Jehovah’s Witness. Three years later they separated and obtained a divorce with Mrs. Levitsky retaining custody of the children. The divorce agreement provided that either parent should "notify the other of any illness, accident or other matter seriously affecting the well-being of any of the children."l74
On one occasion the youngest child, Nicholas Levitsky, was admitted to the hospital and was hemorrhaging internally. His hemoglobin count became very low, but Mrs. Levitsky refused to allow a blood transfusion. She signed a release form for the hospital. When the boy became critical the hospital contacted the father who lived in another city and obtained permission for the needed transfusions. The transfusions were effective and the boy recovered.175 Due to
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173 Levitsky v. Levitsky, 190 A.2d 621 (MD C. of A. 1963).
174 Ibid., 622.
175 Ibid., 623.
187
these circumstances the father applied for custody of the children.
In spite of the situation with Nicholas the court allowed custody to remain with Mrs. Levitsky. Restrictions were placed on her to safeguard the health of the children, however. The appeal dealt with the custody, particularly in light of the issue of religious freedom. The dichotomy between belief and action was explained and limitations on actions in certain situations were justified:
To deny one’s child medical care necessary to save his life because of one’s own religious views, falls within the kind of conduct which is not protected by the guaranty of religious freedom contained in Art. 36 [of the Maryland Declaration of Rights].l76
The court recognized that leaving the children in the custody of their mother involved some risk, but the judgment was that custody should remain with the mother. In order to reduce that risk to a minimum, the restrictions placed upon the mother to maintain custody were strengthened. The mother was not required to give consent for any future blood transfusions should they be needed, but conditions were to be specified by which a physician in the state could administer blood or plasma should it "be necessary to protect the life or health of any of these children."177
Stapley v. Stapley
In this case the change of custody from the mother to
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176 Ibid., 626.
177 Ibid.
188
the father was being appealed. The mother had remarried and become a Jehovah’s Witness. Numerous problems, mostly related to her new faith, were grounds for the change of custody. Much concern was expressed for her refusal to consent to a transfusion in case one of the children should need it. A whole page of testimony on blood transfusions by the mother being questioned at a hearing was included in the case. The safety and welfare of the children were jeopardized by her faith, therefore, custody was changed. There were many other factors in the transfer of custody, but the issue of transfusions was a key factor. One judge dissented, saying all of their problems were religious in nature and the court ought to remain neutral.178
Harley v. Oliver
Bobby Allen Oliver was in need of surgery for the removal of a cyst. Most of this case dealt with other legal questions, but the mother had brought action against the father for custody and for damages. The father had sought custody in order to obtain the needed medical treatment for the child. No damages were given the mother. One reason related to freedom of religion. The mother’s case alleged that she was of the religious faith of Jehovah’s Witnesses and "opposed to the administration of blood transfusions on
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178 Stapley v. Stapley, 485 P.2d 1181 (AZ C. of A. 1971).
189
both religious and medical grounds."179 The court invalidated this as grounds for damages:
A parent or guardian of a minor has no legal right to deny proper medical treatment or treatment recommended by the medical profession for any disease of a minor, even though such treatment is contrary to a religious belief of the parent or guardian.180
Numerous earlier cases were cited as precedents. An appeal also failed to invalidate the actions of the father or the court.181
In re Marriage of Urband
In Urband custody was given to the mother in spite of the fact that she was a Jehovah’s Witness. The father had complained "that she would not consent to a blood transfusion if some future hypothetical accident or illness created a 182 medical necessity for such treatment." The court saw no compelling evidence that the mother’s religious beliefs and observances would be harmful to the children.
Osier v. Osier
Jay and Barbara Osier were divorced on 24 June 1976. No court ruling was made on custody, but the father agreed to
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179 Harley v. Oliver, 404 F. Supp. 450, 456 (C. of A. 8th D. 1975).
180 Ibid
181 Harley v. Oliver, 539 F.2d 1143 (C. of App. 8th C. 1976)
182 In re Marriage of Urband, 137 Cal. Rept. 433 (C. of App. 1 Dist. 1977).
190
let the mother care for their four-year-old son. His military duties required long periods of absence from his home, so this solution seemed best. In 1978 Jay Osier filed for custody of his son. He had remarried and set up a new home. One of his arguments for custody was that the mother would not consent to a blood transfusion for the boy. Custody was granted to the father. The mother’s religious convictions raised an "issue of major importance" in the decision.183
On appeal this decision was overruled because undue weight was given to the blood transfusion question. The religious practices of the parent should not be taken into account in determining custody "unless such practices pose an immediate and substantial threat to the temporal well-being of the child."184 Also every reasonable alternative should be explored. The case was sent back to the District Court for a completely new hearing where the relative merits of each parent would be considered "exclusive of any religious factor."185
In re Marriage of Short
Mr. Short appealed the awarding of the custody of his two minor children to the mother on several grounds, in
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183 Osier v. Osier, 410 A.2d 1027, 1028-29 (ME Sup. Jud. C. 1980).
184 Ibid., 1030.
185 Ibid 1032.
191
particular to the excluding of evidence by the trial court of how her membership in the Jehovah’s Witnesses might cause harm to the children. The Colorado Court of Appeals affirmed the trial court action saying that more than just a possibility of future harm to the children must be demonstrated. There must be a "substantial probability" that a religious practice would result in harm before the evidence should be considered.186
The appeal was settled by the Colorado Supreme Court with a reversal and the decision was remanded with directions. The restriction of admitting evidence about the mother’s religious beliefs and practices was called "unduly restrictive."187 While the court must remain neutral with respect to religious tenets of various parties, evidence can be presented to demonstrate that religious activities or beliefs are likely to cause physical or emotional harm. While evidence that is "mere conjecture" should not be allowed, potential harm from a religious practice can be admitted if it is "reasonably likely," rather than the earlier requirement that it be substantially probable.188
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186In re Marriage of Short, 675 P.2d 323, 325 (CC C. of A. 1983.
187In re Marriage of Short, 698 P.2d 1310, 1311 (CC 1985).
188Ibid 1313.
192
Class Action Suits
Jehovah’s Witnesses in State of Washington v. King County Hospital
This case involves a class action suit brought on behalf of all Jehovah’s Witnesses in the State of Washington, including children, asking the court to declare the Witnesses’ legal rights and to enjoin the defendants from administering blood transfusions in the future.189
They were joined in this suit by the Watch Tower Bible and Tract Society of Pennsylvania. A special three-judge court was convened to make this important decision. The court dismissed from consideration aspects of the case involving the giving of a blood transfusion to an adult.190
The Witnesses claimed their rights of freedom of religion, of due process of law, of family privacy, and of equal protection were violated. In an interesting argument, they claimed the previous actions compelling blood transfusions had violated their right of association by making it more difficult for them "to attract and hold members for their social and religious purposes."191 The defendant physicians and hospital officials were accused of unlawful assault in forcing medical treatment upon the children of Witnesses. Ten previous cases were then outlined as evidence.
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189 Jehovah’s Witnesses in State of Washington v. King County Hospital, 278 F.Supp. 488, 491 (U.S. D. C. WA 1967).
190 Ibid., 494.
191 Ibid., 501.
193
The Witnesses presented the religious duty inherent in the role of the father as spiritual leader in the home. His responsibility was "to see that no member of his family receives a blood transfusion."192 They presented evidence that transfusions involve certain risks and are of limited value. They argued for alternative means of therapy which makes the use of blood unnecessary. They contended that this information has never been presented by the medical profession before a superior court judge.193
The court accepted the prevailing view that transfusions are generally safe and sometimes necessary. The decision then gave extended treatment to the Prince decision. Based on the "compelling authority" of Prince the court held that Washington laws used to justify compulsory transfusions were not invalid under the Constitution of the United States.194 The parens patriae power of the state was affirmed in order to appoint guardians for the purpose of compelling blood transfusions on the minor children of Jehovah’s Witnesses against their religious beliefs.
Graham v. Deukmejian
A group of Jehovah’s Witnesses brought action against the State of California in 1983. Their claim was that physicians who were willing to perform surgery without blood transfusions for Witnesses were being singled out for
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192 Ibid., 502.
193 Ibid., 503.
194 Ibid, 505.
194
disciplinary proceedings by California. Such actions allegedly discouraged those physicians from performing bloodless surgery which resulted in an infringement upon the right of the Witnesses to the free exercise of their religion. At first the case was dismissed on several grounds, but an appeals court agreed that the Witnesses had standing and had stated a claim that was subject to civil rights statutes. The case should be heard.195 It was remanded to the lower court for further consideration.
Disability Suits
Martin v. Industrial Accident Commission
On 23 February 1955 a scaffold of the Cunningham Company collapsed, sending Charles C. Martin to the hospital with a ruptured spleen. The physicians informed him that an operation and a transfusion of whole blood were necessary. He and his wife refused the transfusion as Jehovah’s Witnesses, signing the following statement: "I, Charles Martin, refuse to have a transfusion of blood, even tho [sic] it may mean the loss of my life, because of my religious beliefs."196 Surgery was performed using blood plasma and other substitutes for whole blood. The spleen was removed and Mr. Martin went into acute shock. The attending physician ordered a
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195 Graham v. Deukmejian, 713 F.2d 518 (U.S. C. of A. 9th dr. 1983).
196 Martin v. Industrial Accident Commission, 304 P.2d 828, 829 (CA D. C. of A., 2nd D. 1957).
195
blood transfusion, but the hospital refused based upon the signed statement. Mr. Martin died shortly thereafter.
The Industrial Accident Commission of the State of California denied workmen’s compensation benefits to the widow, a decision which she appealed in court. The statute said no compensation was due to an employee whose death or disability is caused by
. . . unreasonable refusal to submit to medical treatment, or to any surgical treatment, if the risk of the treatment is, in the opinion of the commission, based upon expert medical or surgical advice inconsiderable in view of the seriousness of the injury.197
The petitioners contended that his refusal was not unreasonable unless the commission also declared his religious tenets unreasonable, something beyond the province of the commission. The court disagreed and Mrs. Martin received no benefits.
Barnes v. Richardson
David Barnes was a thirty-seven-year-old postal employee. He sustained a ruptured spinal disc and was unable to continue working. He began receiving Social Security benefits. He was told that a laminectomy offered an 80 to 90 percent change of recovery with no great risk. He refused to undergo the surgery, so his benefits were terminated. He appealed. One of Barnes’ objections was that his religious rights were being violated. A blood transfusion might be
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197 Ibid., 829.
196
needed during a laminectomy. As a Jehovah’s Witness he objected to this.
His argument was found to be without merit, though. His chief problem was that when he first rejected surgery, he was not an active Witness. His association with the Witnesses had been an on and off relationship, so his fear of surgery and doctors was generalized and unjustified.198. This case shows the importance in law of a belief being sincerely held. The law should not judge that belief but can judge if the adherent is sincere in his or her belief.
Du Puy v. Director, Office of Workers Compensation Programs
On 6 November 1972 Oscar Allen was severely injured at work and hospitalized. He refused blood transfusions for religious reasons and died in less than a week. Most of this case dwells on technical points of the law relating to workmen’s compensation, compromise, and settlement. Besides the notation of a Witness dying in part due to his refusal of a transfusion, the fact that worker’s compensation benefits may be challenged by a religious refusal of treatment is significant. 199
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198 Barnes v. Richardson, 320 F.Supp. 1267, 1268-69 (U.S. D. C., D. OR 1970).
199 Du Puy v. Director, Office of Worker’s Compensation Program, 519 F.2d 536 (U.S. C. of App. 7th Cir. 1975).
197
Malpractice Suits
Shorter v. Drury
Doreen Shorter became pregnant in the summer of 1979. In October 1979 diagnosis revealed that the fetus had died but failed to be discharged. The doctor recommended a dilation and curettage and explained the dangers of bleeding to Mrs. Shorter. Mr. and Mrs. Shorter were both Jehovah’s Witnesses who refused blood transfusions.200 The Shorters signed a refusal to receive blood transfusions which released the attending physician "from any responsibility whatever for unfavorable reactions."20l
The operation did not go well. One hour after surgery Mrs. Shorter began to bleed internally and began to go into shock. She and her husband continued to refuse blood. Exploratory surgery revealed that her uterus had been severely lacerated. Mrs. Shorter bled to death, and Mr. Shorter filed a malpractice suit against the doctor. Physicians for both parties in the ensuing law suit agreed that a transfusion would probably have saved her life. A jury trial found that negligence of Dr. Drury was "a proximate cause of the death of Doreen Shorter."
Damages were assessed at $412,000 by the jury but reduced 75 percent because the Shorters "knowingly and
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200 Shorter v. Drury, 695 P.2d 116, 118 (WA 1985).
201 The release is reproduced in Ibid., 119.
198
voluntarily" assumed the risk of her bleeding to death by refusing any transfusions. The appeal decision gave lengthy discussion of risk and the release form. The court encouraged the use of such forms, since they were better than the alternatives. Without them either a court order would have to be obtained which would be cumbersome and impractical, or physicians would have to refuse to give medical care to Witnesses, something repugnant to our society which attempts to distribute medical care to all.202
The appeal affirmed that Dr. Drury was responsible for his negligence while the Shorters were responsible for the risk of death as the consequence of their refusal of blood. The settlement proposed by the jury was upheld. One judge dissented against four in the majority. This case demonstrates that release forms are valid and helpful in protecting doctors due to medical complications arising from a patient’s refusal of treatment, but they are not a protection against negligence in other matters.
Davis v. United States
Doyle Davis, a fifty-six-year-old retired Air Force non-commissioned officer, entered the Little Rock Veterans Medical Center on 14 October 1982. He was suffering from a bleeding ulcer and refused any blood due to his faith as a Jehovah’s Witness. The hospital staff refused to perform
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202 Ibid 120-21.
199
surgery on him due to his refusal and followed more conservative treatment f or his condition. Mr. Davis left the hospital after being there only thirty-six hours and flew to Houston where a physician performed the surgery without blood transfusions. Mr. Davis was in a coma for twenty-nine days, but he recovered and returned home. He later developed a back problem which he blamed on the hospital and doctors in a malpractice suit.203
The Davis family argued that the physicians at the hospital were negligent. They should have either performed the surgery without blood transfusions or quickly explained alternative treatment to the family and sought another doctor who would do the surgery. The court ruled in favor of the hospital in this suit for several reasons. Most important to the present study were statements concerning liability of the physicians in relation to blood transfusions and Jehovah’s Witnesses. The doctors were not required to perform surgery without blood: "A physician, under the law, does not have to engage in what he believes honestly to be bad medical practice simply because he is held harmless from potential legal liability."204 Just because a Witness signs a release form, a physician does not have to operate without blood. The question of alternative treatment also brought
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203 Davis v. United States, 629 F.Supp. 1 (U.S. D. C., E.D. AR N.D. 1986).
204 Ibid, 3.
200
some interesting information to light. Mr. Davis thought the hospital physicians should have sought the availability of another physician for him. Without their help, however, the Davis family found a doctor very quickly.
The evidence here shows that Mrs. Davis and her daughter had several lists of doctors who apparently would agree to handle various different types of medical problems without the use of blood transfusions. . It is clear to the Court from the evidence that the plaintiffs had much more knowledge and information about this problem than the defendant’s agents and were in a far better position to solve it than they were.205
Randolph v. City of New York
Bessie Randolph was due to deliver a child in July 1975. Her physician informed her that a Caesarean section would be necessary and that a transfusion was also necessary. Mrs. Randolph refused the transfusion as a Jehovah’s Witness. No effort was made to obtain an order and the surgery was performed. In attempting to remove the placenta the doctor discovered two conditions that made a hysterectomy necessary. In performing the hysterectomy he made a laceration in the urinary bladder which caused a massive hemorrhage. Soon Mrs. Randolph had lost 40 percent of her blood. Transfusion with non-blood solutions was begun to maintain her circulatory volume.206
In another thirty minutes she had lost an estimated
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205 Ibid, 6.
206 Randolph v. City of New York, 501 N.Y.S.2d 837, 838-39 (NY Sup. C., App. Div., 1 Dept. 1986).
201
80 percent of her blood supply and the physician asked for contact to be made to obtain an order for a transfusion. In fifteen minutes permission was given and transfusion of whole blood began, but Mrs. Randolph died of cardiac failure. The ensuing legal battle involved out-of-court settlements, a jury trial decision, and appeals. The important point for the present study relates to the refusal of transfusions. The physician was not held liable for following Mrs. Randolph’s directions against transfusions of blood. He was not held liable for waiting as long as he did to obtain legal sanction to initiate such a transfusion.
The malpractice question centered on whether or not Mrs. Randolph could have been saved when the transfusion of whole blood began. The jury and the dissenting minority in the appeal believed her life could have been saved if the physician had not administered so little blood (less than two units) so slowly (in over one hour).207 The majority in the appeal ruled that it was already too late. Most importantly, though, the physician was not held accountable for following the patient’s religious convictions. The trial judge specifically charged the jury: "You are not to consider the failure of the defendants to transfuse Bessie Randolph until 12:45 P.M. on July 17, 1975, as an act of negligence."208 The appeal court agreed. Plaintiff’s counsel even conceded
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207 Ibid., 843-46.
208 Ibid., 840.
202
"that the defendants would not have been liable, if Dr. Foster had not undertaken to transfuse Mrs. Randolph, since he would have been merely following her instructions."209
Summary of the Transfusion Cases
Cases Involving Children
The courts have been extremely uniform in their readiness to apply their power to order blood transfusions for minor children of Jehovah’s Witnesses through the principle of parens patriae. In Labrenz and Morrison the doctrine was applied only seven years after the Society’s first declaration forbidding transfusions. The recent Cooper decision is not a reversal of this uniform practice. Courts have ordered transfusions not only when a child’s life is in danger, (Labrenz, Morrison, Hoener, Perricone, Brooklyn, and Ivey), but when serious health problems exist (Muhlenberg) or psychological development (Sampson) is endangered. The only exception is Green and it was a close, split decision which had a vigorous dissent and drew many critical reviews. Also Green can be distinguished somewhat since the child was close to adult years at sixteen years of age. He personally refused the treatment, and his life was in no danger at all.
Transfusions can be ordered when a problem arises or even before the emergency actually exists (e.g., before birth
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209 Ibid. The decision was affirmed in Randolph v. City of New York, 514 N.Y.S.2d 705 (NY C. of App. 1987).
203
in Hoener). Transfusions can be ordered conditionally depending upon whether or not they are needed during a surgical procedure (Santos). Being prepared in case the need arises is commended by the courts (Clark, Cooper). Even though some children have died in spite of court-ordered treatment (Perricone), the decisions are justified. It appears that the limitations of parental authority and religious rights as expressed in the now famous Prince decision are alive and well, and Jehovah’s Witnesses have little hope of winning on this count.
The child custody cases demonstrate how important the care of children is seen as a state interest. The mere potential or possibility that a child would need a blood transfusion has been important in many custody cases. Based almost exclusively on that fact, custody was awarded in Battaglia. It played a role in a custody change in Stapley. In Levitsky custody remained with the Witness mother but with restrictions for the safety of the child. The continued relevance and admissibility as testimony of a parent’s religious convictions against blood transfusions is a evidence of this pervasive interest the state has in protecting children from undue harm.210 Finally, the failure
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210 Sorne other custody cases where one partner is a Jehovah’s Witness, but where blood transfusions play a very minor role, are Clift v. Clift, 346 So.2d 429 (AL Civ. App. 1977); Mollish v. Mollish, 494 S.W.2d 145 (TN C. App. 1972); Waites v. Waites, 567 S.W.2d 326 (MO 1978); and Felton v. Felton, 418 N.E.2d 606 (MA Sup. Jud. Ct. 1980); Sinclair v. Sinclair, 461 P.2d 750 (KS 1969); Smith v. Smith, 367 P.2d 230 (AZ 1961); Stone v. Stone, 133 P.2d 526 (WA 1943). The Staelens case involves a child, but it was included with the adult cases, since it was a civil rights action suit by the parents against the physicians, the hospital, and the judge.
204
of the Witnesses in class action suits on behalf of their children demonstrates the strong health of the parens patriae doctrine as embodied in the Prince decision for American society.
Summary of Adult Cases
The treatment of adult Jehovah’s Witnesses in the courts in reference to compulsory blood transfusions has not been uniform. There is a general trend, though, to compel treatment the closer the court is able to associate the adult with a child. Transfusions have been ordered for pregnant women on this basis (Raleigh Fitkin and Jamaica). Transfusions have been ordered for the mother even in a post-birth situation (Broward and Paddock), and one was administered after birth in another case even though the court order was not clear on that point (Raleigh Fitkin). In Mercy Hospital, though, a transfusion was not ordered for a pregnant woman, because it would benefit only the mother after birth.
Less definite is the state’s interest in compelling transfusions for the sake of minor children. Transfusions have been ordered in such situations (Powell, Winthrop, and Wons before appeal). One case gave assent to the argument, but made its ruling on other grounds (Jamaica). Especially
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205
if the parent was the "sole support" of a child, the state had a compelling interest (Hamilton). On the other hand, in three cases where it was clear that the children would not be abandoned, no transfusion was ordered (Osborne, St. Marys, and Wons after appeal).
When no argument can be made on the basis of children, the courts are least likely to order a transfusion. In two cases a transfusion was ordered for an adult with no dependent children, but the order was overruled upon appeal (Brooks and Brown). In two other cases no order compelling treatment was issued (Dilgard and Melideo). Other justifications have been used for ordering a transfusion on an adult, though.
If an adult has been unconscious or incoherent and unable to give informed consent, the courts have been consistent in ordering a transfusion (Georgetown, Heston, and Cincinnati Hospital). In Dorone the testimony of family and a medical alert card was not sufficient at this point, since the adult himself was not able to refuse nor give consent.
Frequently consideration has been shown for the medical profession by placing emphasis upon their rights along with those of a patient. Although other factors are involved in each case, the medical creed favoring the saving of life and concern for the legal and ethical problems of the medical community have been important factors used to justify transfusions (Georgetown, George, Heston, Paddock, and
206
Cincinnati Hospital). St. Mary’s said there was no real problem here due to refusal of the patient to consent while Mercy Hospital rejected the argument as false.
Release forms do provide protection for doctors, but they do not protect the physician from unrelated negligence (Shorter and Randolph). Physicians are not required to undertake a method of treatment of which they do not approve due to the restriction against blood (Randolph and Davis). Just because a Witness signs a release form, a physician or hospital does not have to operate without blood. In some cases Witnesses had been refused treatment at certain facilities (Mercy Hospital).
Many cases discuss possible parallels between suicide and refusal of lifesaving treatment. Three cases rejected the argument’s validity for a typical Jehovah’s Witness case (Dilgard, Georgetown, and St. Mary’s). Heston, however, claimed validity for the argument to the extent of establishing the state’s interest in compelling treatment.
Frequently decisions were made simply because a life hung in the balance. In the pressure for a quick decision, judges frequently decided to err on the side of life if they were going to err (Georgetown, Powell, Heston, Dorone, and Cincinnati Hospital). Sometimes this approach was defined as maintaining the status quo until more reflection could be given on the problem.
In some cases the patient survived and recovered even
207
though no transfusion was ordered (Osborne, Mercy Hospital, and Brown in the second surgery). In Broward a transfusion was ordered conditionally, but it was not needed. In many of the cases, it is clear that mental retardation or loss of life would have been the result of a failure to order a transfusion.
In several cases a distinction was made between the giving of consent and unwilling acceptance of compulsory treatment. Witnesses believe consent is accompanied by moral guilt while unwilling acceptance is not. This distinction was first noted in Georgetown, and the rationale was used in George and Powell to order a transfusion. In Osborne, though, where a Witness said he would be guilty of sin and would lose his salvation for receiving blood unwillingly, no transfusion was ordered.
While the validity of the Witnesses’ religious faith is not determined by the courts, the sincerity of the individual Witness in that faith is crucial. The lack of a sincere belief justified the refusal to pay benefits in Barnes. In Obsorne special note was taken of the longstanding belief of the patient including the death of his father a few month’s before due to a refusal of a transfusion.
General Observations on the Cases
Litigation is only a partial indicator of the extent of the problem of Jehovah’s Witnesses and blood transfusions
208
in our society. The Witnesses do not seem prone to sue when their religious freedom is respected, so in many situations Witnesses may be dying with no resulting court action.211 Similarly in many situations Witnesses may be quietly submitting to a transfusion although they would avoid publicity for obvious reasons.212 Some physicians have been able to persuade Witnesses to allow a transfusion, especially for children.213 More often, though, pleas for consent from the Witnesses have been futile. In general the Witnesses appear to be remaining very firm in their convictions, even though many doctors are convinced that apart from peer pressure numerous Witnesses would consent to a lifesaving
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211 0ne example is Acord v. General Motors Corporation. This 1983 case involved a law suit over a traffic accident. Part of the controversy related to the admissibility of certain information into evidence, namely, the fact that Mrs. Acord had refused any blood transfusions for religious reasons. She died within a few hours. The immediate cause of her death was the loss of blood although some testimony indicated that death might have occurred even if she had received a transfusion. Acord v. General Motors Corporation, 657 S.W.2d 7, 9 (TX C. of A. 1983). An appeal is found in Acord v. General Motors Corporation, 669 S.W.2d 111 (TX 1984). This case does provide an additional example that many Witnesses are probably dying from their refusal of transfusions.
212 0ne example was found in a case that touched upon the transfusion issue very slightly. Sharon Lee Wright refused a blood transfusion as a Jehovah’s Witness. When her condition grew critical due to a ruptured tubal pregnancy with massive intra-abdominal hemorrhage, she then agreed to submit to a transfusion. Wright v. United States, 717 F.2d 254, 255 (U.S. C. of A., 6th Cir. 1983).
213 David Charles Schechter, "Problems Relevant to Major Surgical Operations in Jehovah’s Witnesses," American Journal of Surgery 116 (July 1968): 79.
209
transfusion. Some physicians, though, are working with the Witnesses as much as possible to allow bloodless surgery, and Witnesses are using their own communication channels to obtain sympathetic medical care (Davis and Graham).
If the state continues to overrule the freedom of religion of the Witnesses, the Witnesses may become more alienated from medical treatment in general and avoid contacting a physician or hospital when a problem arises (Broward) which raises a new difficulty for society to confront. The dates of the various cases reveal a continuing tension which shows no signs of going away. Because of the variety of circumstances which can affect the state’s interest in a compulsory medical treatment case with Jehovah’s Witnesses, statutes would not offer a ready solution.
In the absence of guidance from the Supreme Court of the United States, the only solution may be a continuation of judges examining each case on its own merits. If this is true, many judges in the pressure of the moment will rule in favor of life. Guidance from the Supreme Court has come only in the form of refusing to hear some of the cases in this study. It appears that the judicial system is still groping for tests by which it can properly balance the free exercise of religion and the right of privacy with the interests of society when confronted with an adult Witness refusing blood transfusions.