Compulsory Medical Treatment and the Free Exercise of Religion
" Indiana Law Journal: Vol. 42 : Iss. 3
Compulsor y Medical Treatment and the Free Exercise of Religion
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COMPULSORY MEDICAL TREATMENT AND THE FREE EXERCISE OF RELIGION
Recent cases' involving refusals of blood transfusions by Jehovah's
Witnesses2 raise the difficult constitutional issue of compulsory
lifesaving medical treatment. The Jehovah's Witnesses religion prohibits
the giving or accepting of blood transfusions as a violation of God's law,3
and consequently judicial intervention has been sought to compel medical
treatment for children and for adults.
Medical treatment has often been ordered for children over the
religious objection of parents,4 but the constitutionality of compulsory
treatment for adults remains undecided.
In Application of President &
Directors of Georgetozu
College,5 a single member of the three-judge
court of appeals issued an order for the needed blood transfusion.
Avoiding the constitutional claim of religious freedom, the judge based his
decision on common law
First, he described the patient as
"in extremis" and thus non compos mentis, giving the court the duty of
guardianship.6 Second, relying on the state's parens patriaepower to
prevent the abandonment of children, he concluded that since the patient
was the mother of a minor child the st'ate could prevent "this most
ultimate of voluntary abandonments." 7
Third, the judge stressed the legal
dilemma of hospital administrators and doctors who must decide whether
to treat an objecting patient or let him die, risking civil or criminal
liability in either case.8
Then, looking beyond these traditional considera
tions, the judge concluded that "a life hung in the balance" and announced
that he "was determined to act on the side of life."9
In Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson,0"
N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964) ; Hoener v. Bertinato, 67 N.J.
Super. 517, 171 A.2d 140 (Juv. Ct 1961) ;In re Santos, 16 App. Div. 2d 755, 227 N.Y.S.
2d 450 (1962) ; it re Vascko, 238 App. Div. 128, 263 N.Y. Supp. 552 (1933) ; It re
Clark, 90 Ohio L. Abs. 21, 185 N.E.2d 128 (C.P. 1962) ; Mitchell v. Davis, 205 S.W.2d
812 (Tex. Civ. App. 1947). See also 13 Wyo. L.J. 88 (1958).
5. 331 F.2d 1000, rehearing denied, 331 F.2d 1010 (D.C. Cir. 1964), cert. denied,
377 U.S. 978 (1965). After unsuccessfully seeking permission from the district court
for an emergency transfusion, the hospital sought an emergency writ from the court of
appeals. The patient, mother of a seven-month-old child, was suffering from massive
internal bleeding and the need for the transfusion was immediate. The case is discussed
in Note, 18 U. FLA. L. REv. 591 (1966); Comment, 53 CALIF. L. REv. 860 (1965); Note,
60 Nw. U.L. REv. 399 (1965); 18 VAND. L. R1EV. 7
); 10 CATroI.Ic LAw. 260
(1964) ; 26 MONT. L. REv. 95 (1964) ; 40 No=R DAmE LAW. 126 (1964) ; 16 S.C.L. Rav.
552 (1964) ; Note 39 TUL. L. REv. 125 (1964) ; 113 U. PA. L. REv. 290 (1964) ;
Comment, 9 UTAH L. REv. 16
). The procedural aspects of Georgetown and similar
cases are analyzed in 77 HARv. L. REv. 1539 (1964) ; Note, 39 N.Y.U.L. REv. 706 (1964).
6. In Collins v. Davis, 44 Misc. 2d 622, 254 N.Y.S.2d 668 (Sup. Ct. 1964), the wife
of a comatose patient refused to consent to surgery upon her husband who had
voluntarily submitted himself to the hospital's care. The court ordered the needed treatment
on the ground that the patient and his wife could not put the hospital in this impossible
7. Application of President & Directors of Georgetown College 331 F.2d 1000,
1008, rehearingdenied, 331 F.2d 1010 (D.C. Cir. 1964), cert. denied, 377 U.S. 978 (1965).
8. Treatment without the patient's consent may lead to a suit or prosecution
grounded on battery. See Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962). In
Georgetowt the court cited Jones and said that "whether or not a waiver signed by a
patient in extremis would protect the hospital from civil liability, it could not be relied on
to prevent criminal prosecution." Application of President & Directors of Georgetown
College, 331 F.2d 1000, 1009, rehearingdenied, 331 F.2d 1010 (D.C. Cir. 1964), cert.
deWied, 377 U.S. 978 (1965). "This case does not involve a person who, for religious
reasons, has refused to seek medical attention. . . . Mrs. Jones sought medical attention
and placed on the hospital the legal responsibility for her proper care." Id. at 1007.
9. Application of President & Directors of Georgetown College, vupra note 8, at
1009. The court rejected the possibility of ordering treatment to prevent "suicide" on
the grounds that the patient, unlike the perpetrator of a suicide, did not want to die.
10. 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964). Plaintiff hospital
the patient was pregnant.
The Supreme Court of New Jersey, in a
unanimous decision, held 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.""
Thus, the case was decided on the
basis of the state's power to intervene for the welfare of the child and
again the constitutional issue was not reached.'2
In United States v. George," the court ordered the necessary
transfusions relying heavily on the rationale of the Georgetown case with the
exception of the in extremis argument (since the patient in George,
although in serious condition, was found to be "rational and coherent.")
The court also discussed the ethical problem raised by the doctors'
professional oath. "To require these doctors to ignore the mandates of their
own conscience, even in the name of free religious exercise, cannot be
justified.. . . The patient may knowingly decline treatment, but he may
not demand mistreatment."' 4
In Powell v. ColumbianPresbyterianMedical Center,"'the court also
authorized the required transfusions; the judge was convinced that the
patient desired the treatment but that she could not bring herself to sign
the order for religious reasons.
As in Georgetown, the judge acted on
the side of life."
Two recent cases have held that treatment may not be ordered.
Ericksonv. Dilgardythe court rejected the county's contention that a
refusal to consent to a life-saving blood transfusion was tantamount to
Asserting that "it is always a question of judgment whether the
sought authority to administer blood transfusions to the defendant in the event such
transfusions should be necessary to save her life and the life of her unborn child. The
evidence established a probability that at some point in the pregnancy the defendant
would hemorrhage severely and that both she and the unborn child would die unless a
transfusion were given. See Comment, 10 VILL. L. REv. 140 (1964) ; 40 NoTRE DAME
LAW. 126 (1964); 33 FORDHAm L. Rav. 80 (1964).
11. Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, supra note 10, at
423, 201 A.2d at 538.
12. "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." Ibid.
13. 239 F. Supp. 752 (D. Conn. 1965). This was a motion by the government to
dissolve a temporary restraining order. The patient had voluntarily submitted himself
to the hospital for treatment of a bleeding ulcer but refused blood transfusions on the
ground that he was a Jehovah's Witness. See Comment, 41 WASH. L. REv. 124 (1966);
34 GEo. WASH. L. REV.1
14. United States v. George, supra note 13, at 754.
15. 49 Misc. 2d 215, 267 N.Y.S.2d 450 (Sup. Ct. 1965).
16. "This woman wanted to live. I could not let her die !" Id. at 216, 267 N.Y.S.2d
17. 44 Misc. 2d 27, 252 N.Y.S.2d 705 (Sup. Ct. 1962). The patient, suffering
from internal bleeding caused by an ulcer, agreed to submit to the needed operation but
refused to consent to a blood transfusion without which, according to the attending
physicians, there was little chance of recovery. See 33 FORDHAm L. REv.513 (1964).
medical decision is correct,"' 8 the court concluded that the individual has
the final determination. 9
No religious objection was made by the pa
tient, and as a result there was no discussion of religious freedom.
The constitutional issue was squarely presented in In re Estate of
Brooks,0" where the state contended that society has an overriding interest
in protecting the lives of its citizens and the patient resisted ireatment on
religious grounds. The court, recognizing the individual's right to refuse
treatment, distinguished those cases in which courts had intervened.2
Georgetown was found to be inapposite because in Brooks the patient was
neither in extremis nor the parent of a minor child.
The basis of the
court's decision was thaf although religiously-motivated actions are not
totally immune from regulation, the patient's refusal to consent to the
transfusions was not an "overt or affirmative act . . . [constituting]
any clear and present danger to society.""
These cases, with the exception of Brooks, were not decided on the
basis of determining whose interest is paramount: society's, in
attempting to preserve the lives of its citizens, or the individual's, in seeking to
exercise his religion unfettered by state interference.
And Brooks, in
which the court attempted to balance the relevant interests, illustrates the
characteristic superficiality of the courts' evaluation of these interests
and the difficulty of applying the "clear and present danger" test to the
area of religious freedom.
18. Erickson v. Dilgard, supra note 17, at 28, 252 N.Y.S.2d at 706. The court also
placed heavy emphasis on the fact that the patient was competent.
19. "[I]t is the individual who is the subject of a medical decision who has the
final say and . . . 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."
20. 32 IIl. 2d 361, 205 N.E.2d 435 (1965). The lower court had ordered the
appointment of a conservator and allowed him to consent, in the patient's behalf, to the
necessary transfusion. After the transfusion had been given, the patient appealed,
seeking to have the conservatorship proceedings expunged and the petition dismissed.
Despite its mootness, the case was heard by the supreme court because of the substantial
public interest involved. See Note, 7 Aaiz. L. Ruv. 315 (1966) ; 79 H-ARv. L. REv. 675
(1966) ; 64 MIcn. L. REv. 554 (1966) ; 63 W. VA. L. REV. 65 (1966) ; 41 WAsH. L. REv.
124 (1966); 15 A-t. U.L. REv. 110 (1965); 34 GEO. WASHr. L. Rnv. 1
TEXAs L REv. 190 (1965).
21. Compulsory vaccinations, said the court, are based on the right of society to
protect itself ; polygamous marriages may be prevented since they are overt acts
deleterious to public morals and welfare; and the snake handling cases involve "affirmative
action deemed detrimental to public welfare." In re Estate of Brooks, supra note 20, at
367-68, 205 N.E.2d at 439.
22. Id. at 369, 205 N.E.2d at 442. The state may interfere with religious activities
only "when religious principles break out into overt acts against peace and good order."
Id. at 373, 205 N.E.2d at 440. See test at notes 38-41 infra.
IH. THE REGULATION OF RELIGIOUS EXERCISE
Theories of Regulation
Several state interests have been held sufficient to meet the various
constitutional standards. The most important of these are the police
power and the power of parens patrie.
Many matters have been held to fall within the reach of the state's
police power-the power to regulate for the general welfare.2.3
include polgamy,"4 palmreading and fortune-felling, 25 unlicensed practice of
This broad authority to regulate even
religiously-motivated conduct is generally claimed to be derived from the power of the
state to protecf society, and is manifested both in general health
regulations and in regulations protecting the general morals of the community.
The state's authority under the doctrine of parens patriae0 to protect
children and incompetent adults has been invoked frequently to require
medical treatment for children over their parents' religious objections; '
this intervention has been justified on the grounds that the lives of
society's "youth, who constitute the hope of racial survival and progress,
[are] of vital concern to the very life of the nation."3 2
It has long been
recognized that this doctrine extends to incompetent adults."8
Development of a Standard
The first amendment's broad provision that "Congress shall make
no law respecting an establishment of religion or prohibiting the free
exercise thereof," 4 has been given a "preferred position" among
constitutional rights. 8
However "preferred," the right to the free exercise of
religion is not absolute,36 and has often been subjected to that reasonable
regulation which is essential to the safety and welfare of society."7
constitutes reasonable regulation and thus justifies interference with
religious freedom is far from dear.
One of the earliest cases upholding a regulation of religious
exercise was Reynolds v. United States3,8 in which the Court said that while
religious beliefs of any kind are beyond regulation, actions in violation of
the social order may be restrained despite their religious motivation. This
distinction has been widely used to uphold the constitutionality of various
restrictions upon religiously-motivated conduct. "
it provides little guidance for the courts in their efforts to decide which
actions may be restrained; quite clearly not all actions are outside the
protection of the free exercise clause."
Thus, this distinction has quite
properly been criticized as lacking constitutional basis."
The authoritativeness of the action-belief
undermined by West Virginia Board of Education v. Barnette4,2 which made
it clear that not all actions are regulable.
The standard of clear and
present danger, developed in the area of freedom of speech,4 3 was used
to determine which religiously-motivated acts could be legitimately
This standard, however, has also been seriously questioned.
The most compelling criticism is that the test, however appropriate
it may be for the regulation of speech, is not applicable in the area of
rehealth and morals . . . forbids the easy assumption that there is an unqualified right
of religious liberty against the community and the state."
38. 98 U.S. 145 (1878). This case sustained a law prohibiting polygamy enforced
against a Mormon. "Congress was deprived of all legislative power over mere opinions,
but was left free to reach actions which were in violation of social duties or subversive
of good order." Id. at 164.
39. Davis v. Beason, 133 U.S. 333 (1890) ; Jacobson v. Massachusetts, 197 U.S. 11
(1905) ; Cantwell v. Connecticut, 310 U.S. 296 (1940) ; see also Comment, 26 U. CHI. L.
REv. 471 (1959) ; Cox v. New Hampshire, 312 U.S. 569 (1941) ; Prince v. Massachusetts,
321 U.S. 158 (1944) ; Baxley v. United States, 134 F.2d 937 (4th Cir. 1943) ; McBride
v. McCorkle, 44 N.J. Super. 468, 130 A.2d 881 (App. Div. 1957) ; Hoener v. Bertinato,
65 N.J. Super. 517, 171 A.2d 140 (Juv. Ct. 1961). Other cases are collected in Antieau,
The Limits of Religious Freedom, 18 FORDHAm L. REV. 221, 227 n.33 (1949).
40. The Court in both Davis v. Beason, 133 U.S. 333 (1890), and Cantwell v.
Connecticut, 310 U.S. 296 (1940), saw the need for a more refined distinction. "In every
case the power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom." Cantwell v. Connecticut, supra,at 304. Other
cases hold that activity is within the protection of the first amendment, e.g., Taylor v.
Mississippi, 319 U.S. 583 (1943); Marsh v. Alabama, 325 U.S. 501 (1946); Tucker v.
Texas, 326 U.S. 517 (1946). See also cases collected in Antieau, supra note 39, at 227
Full public discussion was thought to be sufficient to
overcome any threat posed by dangerous speech, and the Supreme Court
held state regulation justifiable only where the danger was of sufficient
immediacy and gravity "to preclude the remedial effects of further
No such countervailing force is thought to restrain religious
A more recent formulation is generally accepted
as the current
In Sherbert v. Verner," the Court held that indirect burdens
on the free exercise of religion can be justified by a "compelling state
interest in the regulation of a subject within the state's constitutional
power to regulate."4'9
The Court indicated what this "compelling
interest" must be. "It is basic that no showing merely of a rational
relationship to some colorable state interest would suffice . . . 'only the gravest
abuses, endangering paramount interests, give occasion for permissible
44. "Freedoms of speech . . . and of worship . . . are susceptible of restriction
only to prevent grave and immediate danger to interests which the state may lawfully
protect." West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1942) (emphasis
added). It is notable that Barnette involved the freedom of speech as well as that of
religion. An argument can be made that the clear and present danger test was applied
only to the speech aspect of the case, and that Mr. Justice Jackson's "begin to affect"
doctrine, generally attributed to his concurring opinion in Prince v. Massachusetts, 321
U.S. 158 (1944), was the basis of upholding freedom of religion in Barwtte. "The
freedom asserted does not bring [those asserting it] into a collision with rights asserted
by any other individual. It is such conflicts which frequently require intervention of
the State to determine where the rights of one end and another's begin." West
Virginia Bd. of Educ. v. Barnette, supra, at 630. In Brownfeld v. Brown, 366 U.S. 599,
604 (1961), the Court referred to the Barnette decision, relying on Mr. Justice Jackson's
"collision" principle rather than on "clear and present danger." See Note, 44 TEXAS L.
Rav. 190 (1965).
45. Note, 44 TEXAs L. Rv. 190, 194 (1965) makes the following points: (1) It is
a more rigid test than is currently being applied by the Supreme Court; (2) There are
many social interests which, while of compelling importance, would not warrant
protection under clear and present danger; and (3) The mechanical application of the test
tends to obscure the judicial process of weighing and balancing values and interests.
See also Mr. Justice Frankfurter's concurring opinion in Dennis v. United States, 341
U.S. 494, 542 (1941): "No matter how rapidly we utter the phrase 'clear and present
danger,' or how closely we hyphenate the words, they are not a substitute for the
weighing of values. They tend to convey a delusion of certitude when what it is, is the
complexity of the strands in the web of freedoms which the judge must disentangle." See
Antieau, The Ride of Clear and Present Danger,Its Origin and Application, 13 U. Dr.
L. Rav. 198, 211 (1949) ; Comment, 26 U. CirI. L. .Ev. 471 (1959).
46. See Note, 44 TEXAS L. Ray. 190, 192 (1965).
48. 374 U.S. 398 (1963). See Comment, 10 VILL. L. Rv. 337 (1965) ; 43 ORE. L.
REv. 177 (1964); 28 ALBANY L. Rv. 133 (1964) ; 32 GEO. WAsH. L. R~v. 387 (1963).
The test continues to be used; see In re Jenson, 265 Minn. 96, 120 N.W.2d 515, vacated,
375 U.S. 14 (1963).
49. Sherbert v. Verner, 374 U.S. 398, 403 (1963).
50. Id. at 406, citing Thomas v. Collins, 323 U.S. 516, 530 (1945). The quoted
passage indicates the failure to reject completely the Barnette "clear and present danger"
test, and if "compelling interest" is to be equated with "grave and endangering," there
Failureto Apply a Standard
Dicta in several cases have led to the generally accepted principle
that, absent any danger to other members of society, an individual is free
to do with himself as he likes. 1
The most often quoted statement of this
position is that of Judge Cardozo in Scholendorff v. Society of New York
Hospital:2 "Every human being of adult years and sound mind has a
right to determine what shall be done with his own body."5
these assertions were not based upon analysis of the conflicting interests
of the state and the individual and are seldom supported by reason or
The principal reason for the lack of a clear standard is the failure
of the courts to deal directly with the constitutional issue.
thaf actually involve the issue of compulsory medical treatment for adults
have, with but few exceptions, avoided the issue either by finding
distinguishing facts that bring the case within common law doctrine
allowing intervention, or by holding that the common law requirement of
consent to medical treatment is universally applicable.
The Georgetown case exemplifies the use of factual distinctions.
The judge avoided the constitutional issue by finding that the patient
was non compos mentis and also by finding that the patient, as the parent
of a minor child, could be treated under the doctrine of parens patriae5.5
is no new standard at all. In Brownfeld v. Brown, 366 U.S. 599 (1961), a similar
standard was used, indicating that if the state's goal is secular, the regulation is within
the state's power, and if there is no other way to accomplish the purpose, the regulation
is valid despite its indirect burden on religious observance. "The United States
Supreme Court has not made these determinations often enough to adduce a standard, and
the disparity of its decisions, even upon similar interests within a short number of
years, demonstrates the absence of any standard that might aid the interested citizen or
lawyer. . . ." Comment, 48 MINN. L. REv. 1165 (1964).
51. "A religions zealot may have the right to fast until death .... Such a
doctrine may be upheld on the theory that society's loss of such an adult is slight."
Morrison v. State, 252 S.W.2d 97, 103 (Mo. Ct. App. 1952). "Parents may be free to
become martyrs themselves." Prince v. Massachusetts, 321 U.S. 158, 170 (1944). "An
adult person, if he be of sound mind, is considered to have the right to determine for
himself whether a recommended treatment or surgery shall be performed upon him, and
to have the right even to expressly prohibit life-saving surgery or other medical
treatment." Woods v. Brumlop, 71 N.M. 221, 227, 377 P.2d 520, 52
). "Each man
is considered to be master of his own body, and he may, if he be of sound mind,
expressly prohibit the performance of life-saving surgery, or other medical treatment."
Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d 1093, 1104 (1960).
52. 211 N.Y. 125, 105 N.E. 92 (1914).
53. Id. at 129-30, 105 N.E. at 93.
54. Much of this dicta is found in decisions which uphold the state's protective
power over children. After reaching the conclusion that religious objections of the
parents or children cannot prevent the state's intervention, the courts continue by
indicating that similar restrictions would not apply to adults. See, e.g., Prince v.
Massachusetts, 321 U.S. 158 (1944).
55. See text at notes 6-7 supra. This point was used by the court in Brooks to
distinguish Georgetourn. In re Estate of Brooks, 32 Ill. 2d 361, 369, 205 N.E.2d 435, 440
These distinctions, however, are not capable of general application to this
Not all patients refusing life-saving treatment are non compos
Moreover, the probable effect of this approach-waiting until
the patient is in extremis before seeking to compel treatment-is
It has been uniformly held that treatment without consent is
unlawful and subjects the doctor to civil liability for battery. 7
cases, no clear answer to the constitutional question is presented.
cases which firmly assert the necessity of consent raise a basic question:
whether consent need be obfained in the life-and-death situation where
its effect would be to relegate society's interest in the lives of its members
to a place of secondary importance.
The common law principle of con
sent was not formulated to deal with the life-and-death situation,"s but
to protect the patient from treatment which in his judgment is not
medically necessary or desirable.
Treatment that is unquestionably necessary
to save his life presents a different case.
The courts, of course, are justified in avoiding constitutional issues.
Unfortunately, however, writers have also become entangled in the
problems of factual distinctions and common law doctrines, and consequently
they have not squarely faced the basic issue of whether an adult's
religious convictions may override the state's interest in preserving his
life-in other words, whether there is a right to die.
(1965). This distinction is basic to the argument presented in 51 MINN. L. Rav. 293,
305 (1966) : "The ultimate test of a compelling state interest is where a third person
who is incapable of protecting himself will be directly and adversely affected if the
patient dies." Such an approach is criticized in Comment, 53 CALIF. L. REv. 860, 8
56. See 64 MICH. L. REv. 554, 559 (1966) ; Comment, 9 UTAH L. REv. 16
The doctrine of non compos mentis would probably not be sufficient to overcome a
request not to be treated made before becoming in extreinis. This avenue was not
explored in Georgetown. See In re Church, 141 F. Supp. 703 (D.D.C. 1956).
57. Moos v. United States, 118 F. Supp. 275 (D. Minn. 1954) ; Pratt v. Davis, 224
I1. 300, 79 N.E. 562 (1906) ; Church v. Adler, 350 Ill. App. 471, 113 N.E.2d 327 (1953) ;
Jackovach v. Yocom, 212 Iowa 914, 237 N.W. 444 (1931) ; Mohr v. Williams, 95 Minn.
261, 104 N.W. 12 (1905) ; Rolater v. Strain, 39 Okla. 572, 137 Pac. 96 (1913) ; Nolan v.
Kechijian, 75 R.I. 165, 64 A.2d 866 (1949). See REGAN, DOCTOR AND PATIENT AND THE
LAw 168 (1962) ; HAYT & HAYT, LEGAL ASPECTS OF MEDICAL REcoRDs ch. 2
Kelly, The Physician, the Patient,and the Consent, 8 KAN. L. REV. 405 (1960) ; McCoid,
A Reappraisalof Liability for UnauthorizedMedical Treatment, 41 MINN. L. Ray. 380
(1951) ; Levin, Consent to Medical Procedures,1963 INs. L.J. 711; Hirsch, Cotsent to
Medical Treatment-With Forms, 5 TRIAL LAW. GuIDE 51 (1961) ; Smith, Antecedent
Grounds of Liability in the Practice of Surgery, 14 ROcKY MT. L. REv. 233 (1942); 4
U.C.L.A.L. Ray. 627 (1957).
58. Consequently, there has arisen an "emergency" exception to the requirement of
consent. See, e.g., Jackovach v. Yocom, supra note 57; Franklyn v. Peabody, 249 Mich.
363, 228 N.W. 681 (1930).
Society's Interest in Life
THE RIGHT TO DIE
In spite of the lack of case authority, several arguments have been
made to support the proposition that protection of an individual's life is
a strong societal interest."9
One author has said that "since the preserva
tion of human life is obviously one of the most important interests of
society-if not the most important-it is certain that religious convictions
cannot be permitted to stand in the way.")60
The analogy of refusal to accept medical treatment to suicide has
been criticized on the ground that in the former case there is no intent to
But the question of intent is not so easily dismissed.
may be no intent to die, there is an intent to refuse the needed treatment,
and this refusal is known by the patient to be tantamount to death.
author has defined suicide as any death that results from the actions of
a victim "who knew that it was bound to produce this result."62
The analogy to suicide has also been challenged by distinguishing
misfeasance from nonfeasance,6" i.e., by pointing out that the patient does
not actively bring about his death, but dies as a result of inaction.
distinction, primarily a tort concept, has been criticized, 4 and several
writers have asserted that refusal to accept necessary treatment is suicide.65
More fundamentally, the laws and moral prescriptions against
suicide illustrate society's concern for the lives of its citizens.
ing the technical absence of intent, it is difficult to accept the conclusion
that society is so concerned with intent that it is willing to defer to the
individual who refuses his only chance at survival, yet willing to sanction
criminally an "intentional" suicide.6
The limitation of the state's power under the doctrine of parens
patriaeto the protection of children and incompetents seems to be
inconsistent with its underlying rationale.6 7
It is illogical and arbitrary to re
fuse to extend the societal protection now afforded children to an adult
simply because he has reached majority" or has no children.
society's concern for life is more than a detached unwillingness on the
part of the state to allow children to make "unwise" decisions.
other hand, intervention to protect an adult from his own foolish 'actions
the positive or negative act of the victim who knew that it was bound to produce this
result." Du.XHErh, op. cit. supra note 62, at 5.
65. See, e.g., Comment, 53 CALIF. L. REV. 860, 870 (1965); 33 FORDHAm L. REV.
513 (1965) ; Pew, Suicide Responsibility of Hospital and Psychiatrist,9 CLEv.-MAR. L.
REV. 427, 43
66. Comment, 53 CALIF. L. REv. 860, 87
) : "Take for example, two hospital
patients both in dire need of blood transfusions. One rejects them because of a desire
to die, the other because of religious conviction. Should the law allow the patient
wishing to live but preferring death to breach of religious faith, to die, while forcing the one
wishing to die, to live? To ask the question is to answer it." See Comment, 113 U.
PA. L. REv. 290, 296 (1964) : "Arguably, there exists a theory that suicide, while not
criminal, is a 'grave public wrong."' Cf. note 86 infra. The problem of euthanasia is
closely related to refused medical treatment. In both situations the action taken or not
taken is in accord with the individual's wishes, and it has been argued that if an
individual may choose death, the means employed to effectuate that choice should not be
determinative. Comment, 53 CAsIF. L. REV. 860, 867 (1965). The law prohibiting
euthanasia also illustrates society's commitment to the principle of the sanctity of life.
". .. [A] murderer who acts only upon the consent, and maybe the request, of his
victim is no menace to others, but he does threaten one of the great moral principles
upon which society is based, that is, the sanctity of human life." DEVLIN, THE
ENFORCEIJENT OF MoRALs 6 (1965).
67. See note 32 supra.
68. See Cawley, Criminal Liability in. Faith Healing, 39 MINN. L. REV. 48, 69
We are determined that a child shall grow up safely and in good health to
maturity, and we will intervene when his life or health is threatened by his parents's
religious or other eccentricities. But having taken the trouble to see him into
manhood, why, if he thereafter chooses foolishly to endanger his own life-and
does not at the same time endanger others-then we wash our hands of him.
69. It has been asserted that if treatment can be ordered for some persons
because of their particular circumstances, e.g., responsibility to their children, it must be
ordered for all. "Any distinction based on 'social worth' in this area is repugnant to the
basic idea of equality; if the mother of several children is to be saved, then so must the
childless individual." Comment, 53 CALIF. L. REV. 860, 8
). Yet this very
distinction was used in It re Estate of Brooks, 32 Ill. 2d 361, 369, 205 N.E2d 435, 440
is not unknown."
Refusal to enforce contracts that unduly restrict fu
ture business activities of a party,7 ' laws against dueling,72 compulsory
social security savings, and the recent safety statutes and ordinances
prescribing seat belts and requiring cyclists to wear protective headgear are
illustrative, albeit lacking constitutional weight.
Of course, not all aspects of parens patriae should be uniformly
applied to adults, but the very essence of parens patriace is society's concern
for the lives of its members.
Parens patriaeshould not be viewed, as it
has been, as a limitation upon state power but as the embodiment of a
worthy social value deserving extension.
It has been asserted that the state's power does not extend to
protection of the individual from his own acts.78
Yet in at least two instances
courts have upheld restrictions upon the free exercise of religion where
the "protection" was for the sole benefit of the individual being restricted.
The statutes prohibiting the handling of poisonous snakes in religious
ceremonies are directed in part, if not totally, toward insuring the safety
of the handler. 4
In Harden v. State,,"' the court, dismissing the
argument that proper precautions were employed for observers, stated that
"'such precautions do not protect those who are actually handling these
It shall be unlawful for any person to intentionally handle any reptile . . . by
taking or holding such reptile in bare hands or by placing or holding such
reptile against any exposed part of the human anatomy, or by placing their ozot or
another's hand or any other part of the human anatomy in or near any box,
cage, or other container wherein such reptile is known or suspected to be.
See also VA. CODE ANN. § 18.1-72 (1950) ; Ky. REV. STAT. § 1267a-1 (1940).
75. 188 Tenn. 17, 216 S.V.2d 708 (1948).
It has also been pointed out that had the intent of
the legislature been to protect only the general public, it could have drafted
the statute to protect only non-participants."
Unlike the examples of intervention for the protection of the
individual from his own actions enumerated above, the snake handling
statutes squarely present the constitutional issue, and it is difficult to
distinguish the snake handling cases from those involving refused medical
treatment except on a misfeasance-nonfeasance basis, which is
In fact, the only valid distinction is that in the snake cases death
is far from certain, while in the transfusion cases it is inevitable-a
distinction supporting intervention in the latter cases.
It has also been suggested that the compulsory vaccination laws,
while designed for the protection of the community, in reality protect
only those who refuse the vaccinations since all non-objectors are
Although these examples of intervention fail to establish with
certainty the principle that the state may override an individual's religious
objections for his own protection, they do serve to illustrate the lack of
any cogent standard for intervention and to show the absence of a
universal principle that the individual is exempt from the state's power to
intervene for his protection.
The Value of Life
The Christian attitude is based on the principle of the sanctity
76. Id. at 24, 216 S.W.2d at 710.
77. "The purpose of this statute is to protect the life and health of all people from
exposure to the stated danger. There is nothing in the language of that statute from
which it might be inferred that the legislature intended to exempt anyone from its
provisions." Id. at 21-22, 216 S.W.2d at 710. See Comment, 26 U. CGi. L. Ray. 471, 48
). These examples of restrictions of religious activity are further significant in
that in the case of the snake handler, death is far from certain, and the activity is an
integral part of the ritual of the Holiness Church.
78. See Comment, 53 CALin. L. REv. 860, 868 (1965). The distinction was,
however, found to be significant in Ii re Estate of Brooks, 32 Ill. 2d 361, 368, 205 N.E_9d
435, 439 (1965), and it is advocated by Milhollin, supra note 41, at 209.
79. Apart from these distinctions, at least one case holds that the state may protect
the individual from his own folly. In State v. Congdon, 46 N.J. Super. 493, 185 A.2d
1 (App. Div. 1962
), members of a pacifist group seeking to dramatize the futility of
civil defense were convicted of the crime of failure to take cover during an air raid
A civil defense drill is much more than an enforced ritual. It is potentially a
matter of life and death. As we have already pointed out, the basis of the
State's police power is the protection of its citizens. This protection must be
granted irrespective of the fact that certain individuals may not wish to be
saved or protected. Just as the State may require persons to be vaccinated or to
be quarantined, so may it, as here, take steps to reduce the exposure of the
citizens to the dangers of a possible war, including atomic radiation.
Id. at 511-12, 185 A.2d at 31.
of life. . . . [L] if e is not at the absolute disposal of the holder
but is a gift of God in whose control it lies.
Man has no abso
lute control over his own life but holds it in trust.
He has the
use of it and therefore may prolong it, but he may not destroy
it at will.80
Society's interest in the preservation of a single life is difficult to
It can be characterized in either utilitarian or moral terms.
utilitarian viewpoint would stress the effect of the individual's death on
others in society in terms of grief, shock, or despair,"' while the moral
viewpoint would emphasize the sacredness of the human life and its
The value of human life has been extolled both in religion
and in philosophy.
Larremore characterized the sentiment against sui
cide as "one of the most signal accomplishments of Christianity,"82 and
Blackstone praised the English law for preventing (or at least
proscribing) self-destruction. "
to the same effect. 84
Others, including Aristotle and Aquinas, argued
Even one who questions the efficacy of a criminal sanction against
acts of self-destruction need not reject the values implicit in the law's
Thus the present trend away from such sanctions 5 seemingly
does not stem from any diminution
of the moral commitment to the
sanctity of life, but from the failure of such laws to deter the evil to
which they are addressed. 6
It is impossible to define the extent of society's interest in human
life in terms of other interests8. 7
Merely because society's interest in
compelling jury duty8" or the saluting of the flag 9 is insufficient to
justify interference with the freedom of religion, it does not follow that
society has an insufficient interest in the preservation of life. However,
by comparing society's interest in preserving life to interests that have
been held sufficient to warrant intervention in the past, it may be
possible to determine whether the interest in life should be within the
boundaries of legitimate intervention."
It would seem anomalous to hold that
freedom of religion cannot prevail over society's insistence on
monogamy,0 but could bar the state from saving a life, or that although a child
must go to school despite his parents' religious objections, 2 his mother
may die if she chooses.
To hold that society cannot intervene to prevent
the death of an adult is to suggest that life is less important to society
than the morality of marriage, or the value of education, when, in fact,
human life is society's ultimate value and indispensable resource-the
most compelling of state interests.
Balancing the Interests
Constitutional rights do not exist in a vacuum, and when conflicts
arise among them a balance of their respective values must be struck.9"
In the area of compulsory medical treatment, the significant factors
include the patient's right to the free exercise of his religion, the state's
interest in the preservation of life, and the medical profession's interest
in a definite standard.
Although least significant, the plight of the administrators and
doctors is worthy of some consideration.
Faced on one hand with the like
lihood of being charged with battery if they act, 4 and on the other hand
with the possibility of being charged with manslaughter if they do not, 5
their dilemma is substantial.96
the physician's ethical responsibilities.97
This is accompanied by the problem of
In evaluating the state's interest and the individual's right it is
significant that in the transfusion cases the restriction upon the patient's
religious exercise is relatively slight."
The doctrine forbidding transfu
sions does not appear to be a fundamental belief in the Jehovah's
It is not part of the religious ceremony, and its absence
will not prevent continued practice of the religion.
state's interest in these cases is not effectuated by a continuing regulation
circumscribing the individual's day to day religious practice, but by
sporadic restrictions of his actions only on those rare occasions when a
transfusion is necessary.9 9
94. See note 57 supra.
95. Failure to extend medical aid to one to whom a duty is owed is manslaughter.
Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058 (1901) ; State v. Bischert, 137 Mont.
152, 308 P.2d 969 (1957) ; State v. Mally, 139 Mont. 599, 366 P.2d 868 (1961) ; Stehr v.
State, 92 Neb. 755, 139 N.W. 676 (1913). See Note, 60 Nw. U.L. REV. 399 (1965).
96. "Do our humane laws make it the duty of a physician to leave the bedside of a
dying man, because he demands it, and, if he remains and relieves him by physical touch,
hold him guilty of assault?" Meyer v. Knights of Pythias, 178 N.Y. 63, 67, 70 N.E. 111,
112 (1904). See also REGAN, DOCTOR AND PATIENT AND THE LAW 71 (1956).
97. The Hippocratic Oath requires that a physician "give no deadly medicine to
anyone if asked, nor suggest any such counsel." MALOY, MEDIcAL DIcTIONARY FOR
LAWYERS 372 (
3d ed. 1960
). Similarly, the International Code of Ethics, adopted by the
World Medical Association in Geneva in 1949, states that "a doctor shall not in any
circumstances do, authorize to be done or condone anything that would weaken the
physical or mental resistance of a human being, except for the prevention and treatment of
disease. . . . A doctor must always bear in mind the importance of preserving human
life from the time of conception until death." HADFIELD, LAW AND ETHICS FOR DocToRs
41 (1958). But see 64 MIcH. L. REv. 554, 559 (1966), where it is argued that a
violation of medical ethics is not a danger sufficiently "grave and immediate" to withstand
a first amendment challenge.
98. See Comment, 53 CALIF. L. REv. 860 (1965). See note 82 supra. "The test of
constitutionality calls for an examination of the degree of abridgement of religious
freedom involved in each case." People v. Woody, 61 Cal. 2d 716, 725, 394 P.2d 813, 820
99. This is not to say that the state is unable to prohibit any activity which
happens to be a central tenet of a particular religion; the snake handling statutes forbid
the fundamental ceremony and form of worship of the Holiness Church. On the other
hand, the use of peyote is basic to the doctrines of the Native American Church, and a
statute prohibiting the possession of the drug was held unconstitutional by the Supreme
Court of California because "to forbid the use of peyote is to remove the theological
heart of peyotism." People v. Woody, sufpra note 98, at 722, 394 P.2d at 813. The
court, however, also emphasized that peyote is not a harmful narcotic and that its use
does not lead to harmful narcotics nor hinder enforcement of the narcotics laws. See
Another factor to be considered is the objectors' desire to live
notwithstanding his objection to treatment on religious grounds. In Powell
the patient was not opposed to receiving the necessary treatment but
would not direct it because of her religious convictions. °
town, the patient indicated that she would not consent to the transfusion,
but that if the court allowed it, it would not be her responsibility. 1 '
In George, the patient "would not agree to be transfused but would in no
way resist a court order permitting it because it would be the court's will
and not his own.
His 'conscience was clear,' and the responsibility for
the act was 'upon the court's conscience.' ""'
These cases suggest that
although these individuals were unwilling to contravene their religious
beliefs, they nevertheless wanted to live, and that instead of resenting
society's interference, they welcomed it.'
Society has a great interest in the lives of its members, manifested
by its laws against suicide, its vigilance through the doctrine of parens
patriaeover the welfare of its children, and the great value accorded life
by all of its citizens.
On the other hand, the individual has a great in
terest in practicing his religion freely, an interest which has been accorded
express constitutional protection.
In balancing these interests, it should be remembered that the
interest society seeks to protect does not result in the total deprivation of
The individuals are free to continue to practice their
religion as they wish without interference from society with the
exception that they"are not free to choose death.
Too often courts assume that all acts committed under the aegis of
religious freedom are to be accorded the same weight.
The problem is
also Shapiro v. Lyle, 30 F.2d 971 (W.D. Wash. 1929) (prohibition law inapplicable to
sacramental use of wine).
100. Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215, 267
N.Y.S.2d 450 (Sup. Ct. 1965).
101. The court asserted that by "authorizing the transfusion without her consent,
no problem would be raised with respect to her religious practice. Thus, the effect of
the order was to preserve for Mrs. Jones the life she wanted without sacrifice of her
religious beliefs." Application of President & Directors of Georgetown College, 331
F.2d 1000, 1009, rehearingdenied, 331 F.2d 1010 (D.C. Cir. 1964), cert. denied, 377 U.S.
102. United States v.George,239 F. Supp. 752, 753 (D.Conn. 1965).
103. "Nor are we faced with the question of whether the state should intervene to
reweigh the relative values of life and death, after the individual has weighed them for
himself and found life wanting. Mrs. Jones wanted to live." Application of President &
Directors of Georgetown College, 331 F.2d 1000, 1009, rehearing denied, 331 F.2d 1010
(D.C. Cir. 1964), cert. denied, 377 U.S. 978 (1965). The official position of Jehovah's
Witnesses remains, however, one of antagonism to these intrusions. See, e.g., Do
Hospital PatientsHave Rights?, AWAKE!, Sept. 8, 1964.
seen as a battle between the existence of free religion and the
intermeddling of society. There is a general failure to balance the conflicting
interests involved, and as a result the interests of society are, as a matter
of course, accorded a lesser weight." 4 When a human life is endangered,
society's interest is of such paramount importance that the lesser religious
interest must give way and the balance must be struck in favor of life.
1. Application of President & Directors of Georgetown College, 331 F.2d 1000 , rehearing denied , 331 F. 2d 1010 (D.C. Cir . 1964 ), cert. denied, 377 U.S. 978 ( 1965 ) ; United States v . George , 239 F. Supp . 752 ( D. Conn . 1965 ) ; It re Estate of Brooks, 32 Ill. 2d 361 , 205 N.E.2d 435 ( 1965 ) ; Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 , 201 A.2d 537 , cert . denied, 377 U.S. 985 ( 1964 ) ; Powell v . Columbian Presbyterian Medical Center, 49 Misc. 2d 215 , 267 N.Y.S.2d 450 (Sup . Ct. 1965 ) ; Erickson v . Dilgard, 44 Misc. 2d 27 , 252 N.Y.S.2d 705 (Sup . Ct. 1962 ).
2. No cases have been found involving the Christian Science religion . One explanation for this might be the fact that the religion does not require refusal of all medical treatment: There are a few exceptions to the rule that a Christian Science practitioner and a doctor may not be employed on the same case. As required by law, a doctor or qualified midwife is employed in childbirth. Where bones have been broken, a surgeon is sometimes employed to set the bones, if the patient so desires, since no medication is involved . . . . Where medical treatment for minor children is required by law, Christian Scientists are, as always, strictly obedient to the requirement; but in such areas they seek eventual recognition by law of their right to rely wholly on Christian Science healing for themselves and their children ... CHRISTIAN SCIENCE COMIfMITTEE ON PUBLICATION, FACTS ABOUT CHRISTIAN SCIENCE 10 ( 1959 ). See also John, Recognition of Christian Science Treatment , 1963 INS. L.J. 18 ; John & Peterson, Legal Status of ChristianScience Treatmizent, 10 MED. TRIAL TECH. Q. 67 ( 1963 ). Furthermore, the legislature of every state has recognized or approved of Christian Science practices . See, e.g., IND. ANN. STAT. §§ 63 - 924 , - 1311 ( Burns 1961 Repl.), exempting Christian Science from the registration requirements for doctors and nurses .
3. The belief is based on portions of the Bible which forbid the "eating of blood." "Every moving animal that is alive may serve as food for you. As in the case of green vegetation, I do give it all to you. Only flesh with its soul-its blood-you must not eat." Genesis 9:3. WATCH TOWER BIBLE AND TRACT SOCIETY OF NEW YORK, BLOOD, MEDICINE AND THE LAW OF GOD ( 1961 ). See also How, Religion, Medicine and Law , 3 CAN. B.J. 365 ( 1960 ).
4. People v. Labrenz , 411 Ill. 618 , 104 N.E.2d 769 ( 1952 ) ; Morrison v . State , 252 S.W.2d 97 (Mo . Ct. App. 1952 ) ; State v . Perricone , 37 N.J. 463 , 181 A.2d 751 , cert . denied, 371 U.S. 890 ( 1962 ) ; Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 23 . The police power has been defined as "the power inherent in the state to prescribe . . . reasonable regulations necessary to preserve the public order, health, safety or morals." Tighe v . Osborn , 149 Md. 349 , 356 , 131 At. 801 , 803 ( 1925 ). See also Mt . Vernon v. Julian , 369 Ili. 447 , 17 N.E.2d 52 ( 1938 ) ; Central Clay Drainage Dist . v. Booser, 143 Ark. 18 , 219 S.W. 336 ( 1920 ) ; City of Cincinnati v . Harth , 101 Ohio St. 344 , 128 N.E. 263 ( 1920 ). The cases involving floridation are also in point . See De Aryan v. Butler , 119 Cal. App. 2d 674 , 260 P.2d 98 ( 1953 ), cert. denied, 347 U.S. 1012 ( 1954 ) ; Kaul v . City of Chehalis, 45 Wash. 2d 616 , 277 P.2d 352 ( 1954 ) ; Bear v . City of Bend , 206 Ore. 221 , 292 P.2d 134 ( 1956 ) ; see also Nichols, Freedom of Religion and the Water Supply, 32 So . CAL. L. REv. 158 ( 1959 ); Comment, 13 WASH. & LEE L. REv . 38 ( 1956 ). The cases have been decided in favor of the state upon the ground that the floridated water is not being forced upon the dissenters; they have the choice of importing bottled water if they wish. Another case involving the "choice" analysis is Hamilton v . Regents of Univ. of Calif ., 293 U.S. 245 ( 1934 ).
24. See Davis v. Beason , 133 U.S. 333 ( 1890 ); Reynolds v . United States , 319 U.S. 624 ( 1942 ). But see People v . Woody, 61 Cal. 2d 716 , 40 Cal. Rptr. 69 , 394 P.2d 813 ( 1964 ), where a statute forbidding the drinking of peyote was declared unconstitutional when applied to the members of a religious group believing in " Peyotism." See note 99 infra.
25. See McMasters v . State , 21 Okla. Crim. 318 , 207 Pac . 566 ( 1922 ); Davis v . State , 118 Ohio St. 25 , 160 N.E. 473 ( 1928 ) ; State v . Neitzel , 69 Wash. 567 , 125 Pac . 959 ( 1912 ).
26. See People v. Handzik , 410 Ill. 295 , 202 N.E. 2d 340, cert . denied, 343 U.S. 927 ( 1952 ) ; People v . Vogelgesan , 221 N.Y. 290 , 166 N.E. 977 , 158 N.Y. Supp . 1126 ( 1917 ).
27. See Hill v. State , 38 Ala. App. 404 , 88 So . 2d 880, cert . denied, 264 Ala. 697 , 88 So . 2d 887 ( 1956 ) ; Lawson v . Commonwealth , 291 Ky. 473 , 164 S.W.2d 972 ( 1942 ) ; State v . Massey , 229 N.C. 734 , 51 S.E.2d 179 , appeal dismissed sub nom Bunn v . North Carolina , 336 U.S. 942 ( 1949 ) ; Harden v . State , 188 Tenn. 17 , 216 S.W.2d 708 ( 1948 ).
28. See Mosier v. Board of Health, 308 Ky . 827 , 215 S.W.2d 907 ( 1948 ) ; State v . Drew , 89 N.H. 54 , 192 Atl . 629 ( 1937 ); Sadlock v . Board of Educ., 137 N.J.L. 85 , 58 A.2d 218 ( Sup. Ct . 1948 ) ; Rice v . Commonwealth , 188 Va. 224 , 49 S.E.2d 342 ( 1948 ).
29. See Jacobson v. Massachusetts, 197 U.S. 11 ( 1905 ) ; Zucht v . King , 260 U.S. 174 ( 1922 ) ; Board of Educ . v. Maas, 56 N.J. Super . 245 , 152 A.2d 394 ( App. Div . 1959 ), aff'd, 31 N.J. 537 , 158 A.2d 330 , cert . denied, 363 U.S. 843 ( 1960 ). See also State ex rel . Holcomb v. Armstrong, 39 Wash. 2d 860 , 239 P.2d 545 ( 1952 ) (compulsory chest x-rays) .
30. [ Parens patriae is a] right of sovereignty and imposes a duty on the sovereign to protect the public interest and . . . such persons with disabilities who have no rightful protector . . . . [It] extends to the personal liberty of persons who are under a disability whether by reason of infancy, incompetency, habitual drunkenness, imbecility, etc . . . . This jurisdiction is called into play when it is found that such persons could be a danger to themselves or to the public if they were not taken and held under protective custody . Johnson v. State , 18 N.J. 422 , 430 - 31 , 114 A.2d 1 , 5 ( 1955 ).
31. People v. Labrenz , 411 Ill. 618 , 104 N.E.2d 769 ( 1952 ) ; Morrison v . State , 252 S.W.2d 97 (Mo . Ct. App. 1952 ) ; State v . Perricone , 37 N.J. 463 , 181 A ,2d 751 , cert . denicd, 371 U.S. 890 ( 1962 ) ; Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson , 42 N.J. 421 , 201 A.2d 537 , cert . denied, 377 U.S. 985 ( 1964 ) ; Hoener v . Bertinato, 67 N.J. Super 517 , 171 A.2d 140 ( Juv. Ct . 1961 ) ; In re Santos, 16 App. Div. 2d 755 , 227 N.Y.S.2d 450 ( 1962 ) ; It re Vascko, 238 App. Div. 128 , 263 N.Y. Supp . 552 ( 1933 ) ; In re Clark, 90 Ohio L. Abs. 21 , 185 N.E. 2d 128 (C.P . 1962 ); Mitchell v. Davis , 205 S.W.2d 812 (Tex . Civ. App. 1947 ). See also 13 Wyo. L.J. 88 ( 1958 ).
32. Morrison v. State, supranote 31 . See also 13 Wyo. L.J. 88 , 89 ( 1958 ) : "The greater concern of the courts today in the health and well-being of infants is not evidence of increasing socialistic tendencies, but is rather an emphasis on benefit to the individual, with a benefit to the state accruing only as a secondary and inevitable result." Cf . How, Religion, Medicine and Law , 3 CAN. B.J. 365 , 385 ( 1960 ) : "It is a NaziSpartan theory that children belong to the state . . . ." See also In re Clark, 90 Ohio L. Abs. 21 , 185 N.E. 2d 128 (C.P . 1962 ) : "The child is a citizen of the state . While he 'belongs' to his parents, he belongs also to his state . . . .) A second rationale for the doctrine of parens patriaeis the unwillingness of the state to allow children to make unwise decisions . See text at note 67 infra.
33. "In England, the King was the parens patriae-thegeneral guardian of all infants, incompetents, and insane persons . . . . When the United States achieved its independence, this sovereign power of guardianship over persons under a disability devolved upon the states." 64 MicE . L. REv. 554 , 555 n.5. See Morrison v. State , 252 S.W.2d 97 (Mo . Ct. App. 1952 ).
34. U.S. CoNsT. amend. I. The fourteenth amendment makes this provision applicable to the states . Cantwell v. Connecticut 310 U.S. 296 ( 1940 ).
35. Murdock v. Pennsylvania , 319 U.S. 105 , 110 ( 1943 ).
36. Cantwell v. Connecticut , 310 U.S. 296 ( 1940 ); Reynolds v . United States , 98 U.S. 145 ( 1878 ).
37. See Jacobson v. Massachusetts, 197 U.S. 11 ( 1905 ). See MANWARING, RENDER UNTO CAESAR-THE FLAG SALTJTE CONTROVRsY 51 ( 1962 ) : "There is no constitutional right to exemption on religious grounds from compulsion of a general regulation dealing with nonreligious matters." BATEs , RELIGIOUS LIBERTY 301 ( 1946 ) : "The basic validity of the state's claim to protect the individual and general welfare . . . and . . .
41. See KURLAND , OF CHURCH AND STATE AND THE SUPREME COURT 7 ( 1951 ) ; Milhollin, The Refitsed Blood Transfusion: An Ultimate Challenge for Law and Morals, 10 NATURAL L.F. 202 , 205 ( 1960 ). Comment, 26 U. Cm . L. Rv. 471 ( 1959 ), points out that (1) the language of the amendment makes no such distinction; (2) "exercise" is not normally thought of as limited to belief; and (3) such a restriction defeats the purpose of the guarantee .
42. 319 U.S. 624 ( 1942 ). See also Whitney v . California , 274 U.S. 357 ( 1927 ).
43. See Schenck v. United States , 249 U.S. 47 ( 1918 ).
59. See , e.g., ST. JOHN-STEvAS, THE RIGHT TO LIFE ( 1963 ) ; Comment, 53 CALIF. L. REv. 860 ( 1965 ) ; 33 FORU)HAM L. REV . 513 ( 1964 ).
60. PFEFFER, THE LIBERTIES OF AN AMERICAN 55 ( 1963 ), citing as examples the state's power to prevent the religious suicide and the handling of dangerous snakes .
61. "The Gordian knot of this suicide question may be cut by the simple fact that Mrs. Jones did not want to die." Application of President & Directors of Georgetown College , 331 F.2d 1000 , 1009 , rehearingdenied, 331 F. 2d 1010 (D.C. Cir . 1964 ), cert. denied, 377 U.S. 978 ( 1965 ). "In suicide there is a conscious purpose to bring about death .. " Comment , 9 UTAH L. REV . 161 , 166 ( 1964 ). Accord, 18 VAND. L. REv. 772 , 775 ( 1965 ) ; 26 MONT . L. REV. 96 , 100 ( 1964 ). See also Note , 44 TEXAS L. REV. 190 , 194 ( 1965 ) ("unresolved").
62. DURKHEIm, LE SUICIDE 5 ( 1897 ). See United States v . George , 239 F. Supp . 752 , 753 (D. Conn . 1965 ) where the patient stated that "he would rather die than agree to a transfusion." His actions were referred to by the attending physicians as a "variant of suicide." Criminal liability is not dependent upon intent to achieve specific results. "[Recklessness] is thus a form of intentional harm-doing in that it, too, is volitional in a wrong direction. But, as noted, recklessness differs from intention in that the actor does not seek to attain the harm . " HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 115 ( 1960 ).
63. WILLIAMS , CRIMINAL LAw- THE GENERAL PART 731 n.7 ( 1961 ): There is a general liberty to prevent a felony, and suicide is a felony; therefore anyone may interfere to prevent suicide. But it seems that suicide cannot -be committed by mere omission, like an omission to eat. Otherwise a person who refused a necessary medical operation because he wished to die would be guilty of attempting suicide, and the operation could be performed on him by force in order to prevent him succeeding in the felony of suicide; which is absurd . Which is, in turn, circular.
64. See Comment, 53 CALIF. L. REV. 860 , 870 ( 1964 ) ; CARDOZO , THE PARADOXES OF LEGAL SCIENCE 25 ( 1928 ). But see Comment , 9 UTAH L. REV . 161 , 166 ( 1964 ). Durkheim defined suicide as "any cause of death which results directly or indirectly from 70. This is not applicable to the question of whether or not a particular religious belief is "religious" within the meaning of the first amendment. The reasonableness of religious belief is not justiciable . United States v. Ballard , 322 U.S. 78 , 86 ( 1944 ). See generally Lake , Freedom to Worship Curiously, 1 U. FLA. L. Rav . 203 ( 1948 ) ; Rabin, When Is a Religious Belief Religiois: U.S. v . Seeger and the Scope of Free Exercise , 51 CORNELL L.Q. 231 ( 1966 ).
71. "There are at least two principal grounds on which the doctrine is founded .... One is, the injury to the public by being deprived of the restricted party's industry; the other is, the injury to the party himself by being precluded from pursuing his occupation . . . . " Oregon Steam Nay . Co. v. Winsor, 87 U.S. ( 20 Wall.) 64 , 68 ( 1874 ).
72. See Comment, 53 CALIF. L. RaV. 860 , 867 ( 1965 ). The author also suggests that much of the narcotics legislation is designed to "protect" the user . Id. at 866 . LSD legislation may also be in point.
73. See 26 MONT. L. Rav. 97 , 98 ( 1964 ).
74. TENN. CODE ANN. § 39 - 2208 (Supp. 1964 ) (emphasis added) provides that "it shall be unlawful for any person or persons, to display, exhibit, handle, or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person." Similarly, N.C. GEN . STAT. §§ 14 - 416 , - 418 ( 1953 ) (emphasis added) provide: The intentional exposure of human beings to contact with reptiles of a venomous nature being essentially dangerous and injurious and detrimental to public health, safety and welfare, the indulgence in and inducement to such exposure is hereby declared to be a public nuisance .
80. ST. JOHN-STEvAs, THE RIGHT TO LIFE 43 ( 1963 ).
81. "Suicide shows a contempt for society . It is rude. As Kant says, it is an insult to humanity in oneself. This most individualistic of all actions disturbs society profoundly. Seeing a man who appears not to care for the things which it prizes, society is compelled to question all it has thought desirable. The things which makes [sic] its own life worth living, the suicide boldly jettisons . " FEDDEN, SUICIDE 42 ( 1936 ).
82. Larremore , Suicide and the Law, 17 HA v . L. REv. 331 ( 1904 ).
83. 4 BLACKSTONE , COMMENTARIES * 189 .
84. Aquinas argued that man does not have a right to deprive society of his presence and activity by suicide . SUM MA THEOLOGICA , Part II , Second Number , Question 59 , Art . 3. Moore said that "man does not know the importance of his life; even if his life will always continue so, and he may be counteracting by his abrupt departure some design of providence." A FULL INQUIRY INTO THE SUBJECT OF SUICIDE 38 (1790). Aristotle condemned suicide as an offense against the state . ST. JOHN-STEVAS, op. cit. supra note 80 , at 56.
85. "[T]his change no doubt evidences a more realistic appreciation of the small deterrence these laws provide . " Milhollin, supra note 41 , at 209. That author, however, argues that suicide should be regarded as the most private of acts. Only two states prohibit suicide; see N.D. REv . CODE § 12 - 3302 ( 1943 ) ; WASH . REv. CODE § 980.020 ( 1951 ). Only six states prohibit attempted suicide; see NEv . REv. STAT. § 202.495 ( 1957 ) ; N.J. STAT . ANN. § 2A: 170 - 25 .6 ( Supp . 1960 ) ; N.D. CENT . CODE ANN. § 12 - 33 - 02 ( 1960 ) ; OKLA . STAT. ANN. tit. 21 § 812 ( 1958 ) ; S.D. CODE § 13 . 1903 ( 1939 ) ; WASH . REV. CODE § 9 . 80 .020. See generally PERKINS , CRIMINAL LAW 68 ( 1957 ); Comment, 40 N.C.L. REv . 48 ( 1962 ).
86. "Although suicide is deemed a grave public wrong, yet from the impossibility of reaching the successful perpetrator, no forfeiture is imposed." N.Y. PEN . LAW § 2301 .
87. The uniqueness of the value of life as a legal concept has caused judges to ignore precedent from other areas of religious freedom and to treat the transfusion cases as sui generis. This is well illustrated by the remarks of Justice Jacob Markowitz in the Powell case. "I . . . was convinced of the proper course from a legal standpoint. Yet, ultimately, my decision to act to save this woman's life was rooted in more fundamental precepts." Powell v . Columbian Presbyterian Medical Center, 49 Misc. 2d 215 , 216 , 267 N.Y.S.2d 450 , 451 (Sup. Ct. 1965 ). "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!" Id. at 216 , 267 N.Y.S.2d at 452.
88. See It re Jenson, 265 Minn. 96 , 120 N.W. 2d 515, vacated , 375 U.S. 14 ( 1963 ).
89. See West Virginia Bd . of Educ. v. Barnette, 319 U.S. 624 ( 1942 ).
90. "If the State may punish a preacher for using language calculated to insult and offend the sensibilities of a congregation and thus breach the peace, preachers and members of his [sic] congregation may be prohibited by penal statutes from committing acts which are calculated to endanger the safety and lives of themselves and others." Lawson v . Commonwealth , 291 Ky. 437 , 445 , 164 S.W.2d 972 , 976 ( 1942 ).
91. See Reynolds v. United States , 98 U.S. 145 ( 1878 ).
92. See State v. Bailey , 157 Ind. 324 , 61 N.E. 730 ( 1901 ).
93. "Characteristically, courts weigh societal utilities and interests, when, on occasion, the societal and individual interest in freedom of religion clashes with some other social interest and the need of reconciliation or delimitation arises . " Antieau, supra note 39 , at 224.
104. "I think the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage." Holmes, The Path of the Law, 10 HARv . L. REv. 467 ( 1897 ).