"A Generally Accepted Record of Efficacy": States' Religious Exemptions for Caregivers Who Neglect or Harm Children

Some readers will be aware that in many states of the U.S., parents who refuse to immunize their children against contagious diseases may suffer no penalty if they can argue that their decisions were made on the basis of religious beliefs or philosophical principles. One of the reasons that the parents can do this is that state laws are affected by the requirements of the Federal law CAPTA (Child Abuse Prevention and Treatment Act, which from 1996 onward demanded this policy on First Amendment grounds, and because of lobbying by groups like Christian Scientists).

It’s likely that fewer people know that some states allow religious exemptions for crimes against children as serious as murder, as is shown at childrensheathcare.org. While outrageous indeed, this fact is not quite as outrageous as it appears at first glance—the issue has to do in many cases with legal definitions of murder and other crimes. (No one is saying that a parent could get away with arguing that his religion requires him to chop up his child with an axe.)

For example, the Arkansas code protects a person from being charged with capital murder if his or her child dies because of the withholding of medical or surgical treatment due to the parent’s beliefs in the tenets of a recognized religious group. In Delaware, unless a child dies or is seriously injured physically, a religious exemption protects the parent from a charge of child endangerment. In Idaho, parents withholding medical care for religious reasons cannot be charged with manslaughter, as this charge requires the performance of an illegal act, and using spiritual healing techniques alone is legal under the Idaho code.

A number of other states’ laws are discussed at childrenshealthcare.org, but the one that intrigues me most belongs to Texas. This law protects a parent who has withheld medical care and used spiritual techniques from charges of criminal injury to a child, provided that  “the act or omission was based on treatment in accordance with the tenets of a recognized religious method of healing with a generally accepted record of efficacy.” I am not at all sure what the Texas legislators thought they were talking about when they wrote this language, but the word “efficacy” certainly has a “generally accepted” meaning.

The term “efficacy” refers to the extent to which an intervention causes statistically significant improvement in the problems for which it is used. The use of interventions of high demonstrated efficacy is called “evidence-based practice” and is strongly encouraged by both private and public funding sources that cover either physical or mental health treatment.  Conclusions about efficacy are not based on studies of whether parents of treated children approved of the treatment, but on measurable changes in a child’s condition. Efficacy is considered to be demonstrated only by demanding research designs, and this generally requires either randomized trials, or well-managed nonrandomized trials, because when designs are weak, other factors may be “confounded” or confused with the effect of the intervention, and it may be wrongly concluded that the intervention caused any changes that occurred. In addition, conclusions about efficacy are not based on any single study, but require more than one independent investigation showing that a treatment has had a significant positive effect. By these standards, there are no “recognized religious method[s] of healing with a generally accepted record of efficacy”, although there are claims of efficacy (e.g., for prayer of different kinds).

The Texas example suggests that states’ legislation, often created hastily to be in line with CAPTA, has not been thought through very well. Whether one agrees with the thrust of these religious exemptions or not (and I don’t), they should more clearly balance the needs of children, the religious freedom of parents, and the states’ interests in supporting public health. The reports of childrenshealthcare,org on events in Idaho, where children of a religious group who died in unusual circumstances are not autopsied, is an example of public health risks, as well as children’s needs, being ignored, as the greatest weight is given to issues of religious freedom.

For obvious reasons, concerns about religious exemptions to liability for actions with ill effects on children are usually focused on medical and surgical treatments, which may if withheld contribute to serious illness or death. But religious exemptions have come to apply in other areas as well. For instance, although state laws uniformly require education of children after some minimum age, and although education other than through the public schools has long been an option for families who wanted it, “home-schooling” with few constraints or requirements has in the present generation become a choice for religious reasons--  parents essentially demand a form of religious exemption from laws that consider the failure to educate as a type of child abuse and neglect. Whereas parents in the past sought exemption from school attendance because of travel issues or because they felt the available public schools did not provide a good enough education, the current generation of parents often chooses home-schooling so their children will not learn about a number of topics, ranging from human sexuality to evolution. Permitting these choices, for these reasons, is a form of religious exemption.

Can the idea of religious exemptions also be applied to the use of some forms of psychological treatment that are popular with the religious right? Consideration of this issue requires the awareness that not all forms of psychotherapy are effective, and that some of them are potentially harmful to children. In rare cases, children have been injured or died as a result of holding therapy or because of parental actions related to associated beliefs. One assumption associated with holding therapy is the idea that children who do not comply with parental demands do so because of intentional, willful resistance, not because they are unable to comply. This assumption has even been applied to vomiting and defecation, opening the door to withholding of medical care when symptoms of illness are perceived as defiant acts.

The question of psychological rather than medical harm resulting from some forms of psychological treatment is largely unanswered, but some anecdotal information suggests that anxiety disorders, including PTSD, may result from some kinds of treatment offered for children. Some such treatments, for example “conversion therapy” to attempt to alter sexual orientation, are strongly related to religious beliefs. As several states have passed legislation forbidding psychologists to use “conversion therapy”, members of the clergy have continued to be allowed to use the treatment methods.

If parents whose children have been injured physically or mentally by psychological treatments are charged with abuse or neglect because of their treatment choices, can they claim religious or philosophical exemptions from the charges? So far, this issue does not seem to have been addressed in any U.S. court, but then, even the idea that psychological treatments can be potentially harmful is a very recent one.