Compulsory Medical Treatment of Adults
Compulsor y Medical Treatment of Adults
Peter J. Riga
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TREATMENT OF ADULTS
PETER J. RIGA*
There is little question that several areas of the law which engender
great controversy are those areas which involved the legal determination
of death,I the "right to die,"' and compulsory medical treatment of
competent adults.3 A myriad of legal and moral problems are associated with
these delicate areas. It is not the object of this Article to exhaustively treat
each of these areas, but rather to concentrate upon one central area, the
compulsory medical treatment of adults. This study will first consider the
* Ph.L., 1954, M.A. 1960, Louvain University, Belgium; M.S., 1961, Catholic University of
America; M.A., 1965, State University of New York at Buffalo; Ph.D., 1973, Graduate
Theological Union, Berkeley, California; J.D., 1976, University of San Francisco.
I The bibliography in the area of the legal determination of death is massive. See, e.g.
Berman, The Legal Problemsof Organ Transplantation,13 VILL. L. REV. 751 (1968); Capron
& Kass, A Statutory Definition of the Standards for Determining Human Death: An
Appraisaland a Proposal,121 U. PA. L. REv. 87 (1972); Dworkin, Death in Context, 48 IND. L.J.
623 (1973); Halley & Harvey, On an InterdisciplinarySolution to the
Legal-MedicalDefinitional Dilemma in Death, 2 IND. LEGAL F. 219 (1969); Potter, The ParadoxicalPreservation
of a Principle, 13 VILL. L. REv. 784 (1968); Wasmuth, The Concept of Death, 30 OHIo ST.
L.J. 32 (1969); Wassmer, Between Life and Death: Ethical and Moral Issues Involved in
Recent Medical Advances, 13 VILL. L. REv. 759 (1968); Comment, The Criteriafor Determining Death in Vital Organ Transplants-AMedico-Legal Dilemma, 38 Mo. L. REv. 220 (1973).
In this area, basic questions tend to become confused, and it is for that reason that the area
should be divided into two legal questions: "When is a person dead?" and "When should he
be allowed to die?" It is the second question which comes closest to the subject of this Article.
2 It is crucial when considering the right to die to keep in mind the distinction between
omission and commission. Some authors have drawn an analogy between cases involving
refusals of medical treatment and cases wherein the handling of poisonous snakes in religious
ceremonies had been banned by statute. In making such an analogy, the distinction between
misfeasance and nonfeasance has been labeled "untenable," Note, Compulsory Medical
Treatment and the Free Exercise of Religion, 42 IND. L.J. 386, 399 (1967), or "nonsense,"
Comment, UnauthorizedRendition of Lifesaving Medical Treatment, 53 CALIF. L. REV. 860,
868 (1965) [hereinafter cited as Calif. Comment]. It is submitted for the reasons developed
in this Article that the distinction has great merit both in morals and in law. The value of
this distinction was recognized by the court in In re Estate of Brooks, 32 Ill. 2d 361, 368, 205
N.E.2d 435, 439 (1965).
It is the question of compulsory medical treatment of adults which is the subject of this
Article. This topic is also discussed in Note, The Dying Patient:A QualifiedRight to Refuse
Medical Treatment, 7 J. FAY.L. 644 (1967).
legal authority relevant to the problem of compulsory medical treatment
and then will turn to the arguments, pro and contra, contained in the
relevant legal literature.
THE LEGAL AUTHORITY
In the vast and complex area of compulsory medical treatment there
are many different kinds of cases to consider. In examining these cases, it
is necessary to consider the public interest and individual freedom of
conscience or religion. Such an examination, in turn, necessitates discussion
of balancing of the interests involved: Have the courts spoken of the
freedom of the individual to control his own body? What kind of restraints may
the state enforce on this individual freedom and under what
circumstances? What of children and those who are not compos sui? After treating
these issues, the principle cases dealing directly with adult refusal of
medical treatment should be examined.
State Interest and the Balance of Interests
Most, but by no means all, refusals of lifesaving procedures, such as
the refusal of blood and medical treatment, are motivated by religious
scruples. Religious freedom in the United States occupies a "preferred
position"' as a legal right, but is by no means absolute. In the words of
No well-ordered society can leave to the individuals an absolute right to make
final decisions, unassailable by the State, as to everything they will or will
not do. The First Amendment does not go so far. Religious faiths, honestly
held, do not free individuals from responsibility to conduct themselves
obediently to laws which are . . . imperatively necessary to protect society as a
whole from grave and pressingly imminent dangers . ...
Freedom of religion is, therefore, a basic constitutional right, although
it cannot be an absolute because it is necessarily limited by the interests
of the state. The conflict which sometimes arises between the exercise of
this individual right and the interests of the state must be resolved by the
application of a legal standard which protects the one while safeguarding
the other. Such a standard is found in the so-called balance of interests
' See Marsh v. Alabama, 326 U.S. 501, 509 (1946); United States v. Ballard, 322 U.S. 78, 87
(1944); Follett v. Town of McCormick, 321 U.S. 158, 164 (1944); Jones v. Opelika, 316 U.S.
584, 608 (1942), vacated per curiam, 319 U.S. 103 (1943). The prohibitions of the first
amendment are applicable to the states under the fourteenth amendment. Cantwell v. Connecticut,
310 U.S. 296 (1940).
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 643 (1943) (Black, J., concurring).
test traditionally applied by the courts.' This test was best described by
[Wihere there are competing demands of the interests of government and
of liberty under the Constitution, and where the performance of
governmental functions is brought into conflict with specific constitutional restrictions,
there must, when that is possible, be reasonable accommodation between
them so as to preserve the essentials of both and . . . it is the function of
courts to determine whether such accommodation is reasonably possible.'
An examination of the scope of the balance of interests test is crucial
in determining whether there exists in a given situation a sufficient state
interest to permit the courts to order mandatory lifesaving medical
treatment for adults conscientiously opposed to such treatment. Justice Black,
in Cantwell v. Connecticut8, recognized the clear and present danger test
as the criterion for sufficient state interest when the constitutionally
guaranteed right of free speech is at issue. Justice Black declared:
[11n the absence of a statute narrowly drawn to define and punish specific
conduct as constituting a clear and present danger to a substantial interest
of the State, the petitioner's communication, considered in the light of the
constitutional guarantees, raised no such clear and present menace to public
peace and order as to render him liable to conviction of the common law
offense in question.'
This clear and present danger test was applied in Barnette v. West Virginia
Board of Education8,' wherein a resolution compelling flag salutes was
struck down, and in Taylor v. Mississippi," wherein the Supreme Court
upheld the right to teach the impropriety of a flag salute. The clear and
present danger test was not applied, however, in Princev. Massachusetts,2
Justice Holmes has commented:
I think that the judges themselves have failed adequately to recognize their duty of
weighing considerations of social advantage. The duty is inevitable, and the result of
the often proclaimed judicial aversion to deal with such considerations is simply to
leave the very ground and foundation of judgments inarticulate, and often unconscious
Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467 (1897).
Minersville School Dist. v. Gobitis, 310 U.S. 586, 603 (1940) (Stone, J., dissenting).
310 U.S. 296 (1940).
Id. at 311. For discussion of the Cantwell decision, see Baiter, Freedom of Religion
Interpreted in Two Supreme Court Decisions, 15 CAL. B.J. 161 (1940); 40 COLUM. L. REV. 1067
(1940); 26 IOWA L. REV. 126 (1940); 15 ST. JOHN'S L. REV. 93 (1940); 14 S.CAL. L. REV. 56
-- 319 U.S. 624 (1943). In the words of Justice Jackson: "It is now a commonplace that
censorship or suppression of expression of opinion is tolerated by our Constitution only when
the expression presents a clear and present danger. ..I.d. at 633.
1 319 U.S. 583 (1943).
1 321 U.S. 158 (1944).
where the state prevailed without proving that there was imminent danger
to the well-being of a child or to the state when the child helped her mother
sell copies of a religious newspaper. This test has also been overlooked in
a number of other important cases involving freedom of religion," and it
would thus appear that the clear and present danger test is uncertain as a
legal standard in that area.
In Reynolds v. United States," the Supreme Court adopted the
simplistic view that although religious beliefs are protected by the first
amendment, religious practices are not when they conflict with the interests of
the state. It is doubtful that the framers of the Constitution intended to
protect only the freedom of cloistered Benedictine Monks. On the contrary,
it seems that the view taken in Reynolds was erroneous since there is
abundant proof that religious activity is clearly protected by the first
amendment. 5 Protection of belief only, without protection of the outward
manifestation of that belief, is a direct denial of freedom of religion in most
cases. Liturgy, or external ritual-rite, is historically as much a part of
religion as belief.'6 As a matter of fact, most religions would cease to exist
absent a liturgy.
In addition to the clear and present danger test, there has also
emerged the view that religious practices may be proscribed as soon as they
begin to interfere with the rights of others. As Justice Jackson stated in
his concurring opinion in Prince:"My own view may be shortly put: I think
the limits begin to operate whenever activities begin to affect or collide
with liberties of others or of the public.' 7 Thus, the Princecase indicates
that the Supreme Court came full circle from the clear and present danger
test applied in Barnette. Had the test of this latter case been applied in
Prince, reversal of the conviction would have been inevitable since there
was not sufficient showing of a clear and present danger. Justice Murphy,
dissenting in Prince, rephrased the clear and present danger test of
Barnette when he stated that the state could not interfere with religious
3 Cf. Marsh v. Alabama, 326 U.S. 501 (1946); Martin v. City of Struthers, 319 U.S. 141
(1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943).
98 U.S. 145 (1878).
,SSee Tucker v. Texas, 326 U.S. 517 (1946); Marsh v. Alabama, 326 U.S. 501 (1946); West
Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Taylor v. Mississippi, 319 U.S. 583
(1943); Schneider v. State, 308 U.S. 147 (1939); Lovell v. City of Griffin, 303 U.S. 444 (1938).
" Difficulties arise when a particular sect is unpopular, as were the Mormons during the 19th
century. In 1890 Justice Field said: "To call their advocacy [of polygamy] a tenet of religion
is to offend the common sense of mankind." Davis v. Beason, 133 U.S. 333, 341 (1890).
Certainly polygamy offended Justice Field, but it is no less a "religious" tenet. When Chief
Justice Hughes dismissed a religious claim, he simply stated, "No interference with religious
worship or the practice of religion in any proper sense is shown . Cox v. New
Hampshire, 312 U.S. 569, 578 (1941).
" 321 U.S. at 177 (Jackson, J., concurring).
activities unless the evil to the public is "grave, immediate, and
substantial. " Perhaps the most comprehensive definition of the test can be stated
as follows: "What finally emerges from the 'clear and present danger' cases
is a working principle that the substantive evil must be extremely serious
and the degree of imminence extremely high before utterances can be
punished."'" That is, under this test, the majority will be allowed to
prohibit the religiously motivated acts of the minority only when those acts
are of such a character that they pose a very serious threat to the
continuance of the well-being of the majority or when there is a "breaking out into
overt acts against peace and good order."2 The difficulty lies in
determining when the "peace and good order" is breached.
One case wherein such a determination was made is Tyrrell v. United
States,"'in which a ministerial student was held ineligible for exemption
from the draft. A disturbance of the peace and good order of the
community was found in that exemption from military service on religious
grounds could ultimately result in subjection of the community to foreign
armies. Such a danger is apparently great, so great that even a bona fide
religious objection defense was held impermissible absent the explicit
consent of Congress.
A determination that peace and good order would not be breached by.
religious practice was made in Wisconsin v. Yoder.22 There, Amish parents
desired to provide vocational training, with a few hours of formal study
each week, as an alternative to the conventional high school education
which contravened religious beliefs. According to the Supreme Court, the
state had the burden of demonstrating that the loss of one or two years of
secondary education would impair the physical or mental health of the
children or render them unable to support themselves as adults or detract
from their ability to discharge the duties and responsibilities of citizenship.
This burden was not met. Although the Court recognized the interest of
the state in universal education, it declared that "only those interests of
the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion." 3 The demand of the Amish
" Id. at 175 (Murphy, J., dissenting). The "clear and present danger" test was first
enunciated in a freedom of speech case, Schenck v. United States, 249 U.S. 47, 52 (1919), and was
later applied to a freedom of religion case in Barnette.
" Bridges v. California, 314 U.S. 252, 263 (1941). See also United States v. Korner, 56 F.
Supp. 242 (S.D. Cal. 1944).
" United States v. Hillyard, 52 F. Supp. 612, 615 (E.D. Wash. 1943), quoting Thomas
Jefferson's classic Act for the Establishment of Religious Freedom in Virginia, wherein the
preamble proclaims, "It is time enough for the rightful purposes of civil government, for its officers
to interpose when [religious] principles break out in overt acts against peace and good
order." This language is also contained in VA. CODE ANN. § 57-7 (1974).
21 200 F.2d 8 (9th Cir. 1952), cert. denied, 345 U.S. 910 (1953).
406 U.S. 205 (1972).
Id. at 216.
parents that they not be coerced into sending their children to schools
which they deemed religiously immoral were claims of conscience of the
highest order. The Court held that the public interest in compelling one
or two years of formal secondary education was of comparatively low
priority. 4 Thus, it seems that the Yoder Court applied the clear and present
danger test of Barnette as the legal standard to balance meritorious claims
of freedom of religion with competing interests of the state. The Court has
thus moved away from the views expressed in Prince.15 Practices dictated
by religious conscience, when central to the faith of their advocates, can
only be prohibited when a compelling public interest has been
demonstrated. Thus, the view of the Barnette Court apparently still maintains
vitality: "[F]reedoms of speech . . . and of worship . . . are susceptible
of restriction only to prevent grave and immediate danger to interests
which the State may lawfully protect.""6
The cases discussed above do not of themselves demonstrate that
society has an insufficient interest in the preservation of the life of an adult
who refuses lifesaving medical care, but they do show that the burden is
on the state to demonstrate a sufficient interest. In relevant cases which
have been decided since Reynolds," the issue has been whether a religious
21The attempt by the Yoder Court to distinguish religious claims from those based on
philosophical views, even when the latter occupy a horizontal relationship with "godness" as a
totality, does not seem consistent with United States v. Seeger, 380 U.S. 163 (1965). For a
comprehensive view of this latter decision, see Rabin, When is a Religious Belief Religious:
United States v. Seeger and the Scope of Free Exercise, 51 CORNEL L.Q. 231 (1966).
' It is still true that, as the Prince Court noted,
the State, as parens patriae may restrict the parent's control by requiring school
attendance, regulating or prohibiting the child's labor and in many other ways. Its
authority is not nullified merely because the parent grounds his claim ... on religion
321 U.S. 158, 166 (1944) (footnotes omitted). Indeed, under the same power ofparenspatriae,
several courts have ordered medical treatment over the religious objections of the child's
parents. See People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, cert. denied, 344
U.S. 824 (1952); State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890
(1962). But these cases are clearly distinguishable in that in each case, unlike Prince, the
state's burden of proving an important public interest was sustained.
26 319 U.S. 624, 639 (1943).
2' The Reynolds case, 98 U.S. 145 (1878), poses some serious legal questions. In that case,
the Court upheld the conviction of a Mormon for polygamy. The question of what public
interest is actually threatened by polygamy is difficult to answer. It has already been pointed
out that the distinction between belief and practice, which the Reynolds Court relied on, lacks
a constitutional basis. See note 15 and accompanying text supra;cf. Kurland, Of Church and
State and the Supreme Court, 21 U. CHI. L. REv. 1 (1961). While this distinction does serve
to show that freedom of belief, more than freedom of action, is what the law seeks to protect,
it does not aid in the effort to fix the legal status of those acts that appear essential to give
belief an external realization. Today, it is difficult to conceive of an overt threat to the
wellbeing of society posed by those who freely chose to practice polygamy. Perhaps monogamy
safeguards the dignity of woman, and promotes psychologically beneficial effects on offspring.
practice is sufficiently detrimental to the public good to justify its
curtailment. It has been held that a religious practice must present an immediate
threat to a valid public interest or it cannot be proscribed. This is valid
law today. Therefore, the question becomes: Is a religiously motivated
refusal of lifesaving medical procedure by a competent adult
constitutionally protected? If not, what valid public interest is there in the individual's
The juridical argument has been made that each person can do as he
wishes with his own body. That this argument has not been fully accepted
in law was made evident in Roe v. Wade:28
The privacy right involved, therefore, cannot be said to be absolute. In fact,
it is not clear to us that the claim asserted by some amici that one has an
unlimited right to do with one's body as one pleases bears a close relationship
to the right of privacy previously articulated in the Court's decisions. The
Court has refused to recognize an unlimited right of this kind in the past. 9
There are, however, cases on record which have accepted the principle that
as long as there is no danger to others, one may do with oneself as one
pleases.3 The most often cited case wherein this right was recognized in
dicta is Schloendorff v. Society of New York Hospital,3 in which Justice
But these interests were not shown in Reynolds. In a similar case arising today, such benefits
to the state would have to be demonstrated.
The Reynolds Court's examples of religious practices dangerous to society, i.e., the
suicide of widows and human sacrifices, are inapposite. The state's interest in preventing suicide
and murder dates from the beginning of recorded law, while polygamy has been part of man's
history until very recently, and is still practiced in many areas of the globe. This is not to
approve or disapprove of the Reynolds decision, but only to point out that it lacks a solid
2 410 U.S. 113 (1973).
21 Id. at 154, citing Jacobson v. Massachusetts, 197 U.S. 11 (1905), and Buck v. Bell, 274 U.S.
The right of self-determination is primarily recognized in dicta and has not served as the
ground of a judicial holding. The statements below are illustrative. "A religious 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 (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, 524 (1962). "[Elach
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).
31 211 N.Y. 125, 105 N.E. 92 (1914).
Cardozo wrote: "Every human being of adult years and sound mind has a
right to determine what shall be done with his own body . *.".."32Such a
right, though, is not absolute, and may be restricted even against religious
claims on the part of the individual if there exists a serious state interest.
The constitutional issue of compulsory medical treatment for competent
adults, then, involves the restraints which can be permissibly imposed on
the use of one's body by reason of the interests of the state. The questions
become: What is the extent of the right, of self-determination and what is
the nature of the state's interest in restraining this right?
One of the earliest attempts to answer these questions was made in
Jacobson v. Massachusetts3.3 The defendant in Jacobsonwas fined 5 dol
lars for refusing to comply with a local compulsory vaccination law during
a smallpox epidemic. The Supreme Court sustained the imposition of the
fine on the theory that "a community has the right to protect itself against
an epidemic of disease which threatens the safety of its members." The
Jacobsoncase is a clear example of the state's power to require affirmative
acts of its citizens. The holding in that case resulted from a serious
community or state interest in protecting its members. The question might be
asked whether it is necessary to require vaccination for all citizens since
those who desire protection would be inoculated. An argument for
compulsory vaccination can be made since an interest of the state is promoted
when protection is afforded strangers coming into the community and
young children not yet inoculated. In any event, Jacobson was followed by
a number of cases which emphasized that exceptions will not be made to
laws compelling medical care, even when such laws contravene individual
religious teachings.3 5 Nor is it any defense to failure to obey a statute
requiring school attendance that the parents entertain religious beliefs
against compulsory school vaccination.36 Similarly, neither the exclusion
of unvaccinated children from the public schools37 nor a requirement that
public school children submit to a physical examination violates religious
liberty.18 Nor does freedom of religion exempt one from a statute requiring
procurement of a health certificate before marriage, since the state has a
legitimate interest in protecting an innocent party from a possibly infected
In Kolbeck v. Kramer4,0 it was held that there is an interference with
religious freedom when the state requires -membership in recognized
religious group as a precondition to exemption from vaccination laws. The
action of Rutgers University in Kolbeck was unconstitutional, in view of
its preferred treatment of members of the Christian Science Faith. Under
the holding of Kolbeck, exemptions could be given only if all parties were
treated alike.' Thus, under Jacobson and Kolbeck, it is up to the state to
determine whether the danger to the public is so great as to preclude
exemptions and, if exemptions are to be made, the state must determine
the equal criteria to be applied. A fortiori, the right to do with one's body
exactly as one wishes is subject to limitation by the state when there is a
serious state interest.2
Clearly, there must truly be a serious state interest at stake before the
state can interfere with a strong religious conviction.43 While polygamy has
been held in Reynolds to be an activity unprotected under the rubric of
religious freedom because of the serious state interest in monogamous
marriages, a statute forbidding the drinking of peyote was declared
unconstitutional in People v. Woody," when applied to the members of a religious
group believing in "Peyotism." Presumably, the reason for this distinction
is that the use of peyote is basic to the doctrines of the Native American
Church, and "[t]o forbid the use of peyote is to remove theological heart
of peyotism."I 5 The Woody court emphasized that peyote is not a harmful
narcotic, its use does not lead to use of harmful narcotics, and its use is
strictly limited to religious liturgy. The Woody court distinguished
Reynolds on the ground that the practice of polygamy is not central to the
Mormon faith, whereas the use of peyote is at the heart of the Native
American Church. In addition, the court declared that, unlike polygamy,
use of peyote was not injurious to the morals and health of the
practitioners.4 The court correctly implied that if the state had shown injury to
Peterson v. Widule, 157 Wis. 641, 147 N.W. 966 (1914).
84 N.J. Super. 569, 202 A.2d 889 (Super. Ct. Law Div. 1964).
Id. at 575, 202 A.2d at 892.
A cautionary note was struck by Justice Frankfurter when he declared:
".... 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 is most certain is the
complexity of the strands in the web of freedoms which the judge must disentangle."
Dennis v. United States, 341 U.S. 494, 542-43 (1951) (Frankfurter, J., concurring), quoting
P. FREUND, ON UNDERSTANDING THE SUPREME COURT 27-28 (1949).
'3 See Davis v. Beason, 133 U.S. 333 (1890).
61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
Id. at 722, 394 P.2d at 818, 40 Cal. Rptr. at 74.
4 It is submitted that the Woody Court attempted to distinguish what cannot be
distinhealth or morals there would have been a state interest sufficiently
compelling to justify prohibition of this religious practice.
In Sherbert v. Verner," the Supreme 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 . . . .' "' What is this compelling state interest? "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 limitation.' ,4 Thus,
the exercise of religion is a fundamental right, and only the highest public
interest can displace its exercise.
The decision of the Supreme Court in Griswold v. Connecticut
supports the argument that a compelling state interest is necessary to limit
the individual's right to privacy. In Griswold, the Court struck down a
state statute forbidding the use of contraceptives. If the individual for
religious or other conscientious reasons wishes to refuse various lifesaving
medical procedures, he could support his action by relying on the right to
privacy doctrine enunciated in Griswold. It will be recalled that the Court
in Griswold, stated that such a right exists, not in any one part of the Bill
of Rights, but in the "penumbra" of several of them.5' While the scope of
Griswold is unclear, it would seem logical to conclude that the "zones of
privacy" recognized in that case protect the individual's right to refuse
compulsory medical treatment, whether for religious or any other reason.
Both the right to free exercise of religion and to individual privacy are
rooted in the American traditions of individual freedom and an abhorrence
of unreasonable government intrusion into private relations.2 It must be
understood, however, that an interest of the state sufficiently compelling
to permit the state to limit the individual's right of privacy does not
necessarily qualify as such in the area of religion, since different rights are at
stake. In any case, it is juridically sound under Sherbert, that an invasion
guished. In 1872, when Reynolds was decided, polygamy was certainly a central tenet of
Mormonism. In fact, many Mormons went to jail and were deprived of basic freedoms and
property as a result of their belief. Such acts more convincingly reflect the sincerity of the
Mormon's belief than simple statements by the California Supreme Court in 1964. Moreover,
the Woody Court assumed that polygamy is injurious to health and morals although such
injury was never demonstrated by the state in Reynolds.
47 374 U.S. 398 (1963).
4'Id. at 403, quoting NAACP v.Button, 371 U.S.415, 438 (1963).
374 U.S. at 406, quoting Thomas v.Collins, 323 U.S.516, 530 (1945). Thus, it would appear
that the Barnette rule of "clear and present danger" was reaffirmed in Sherbert since
"compelling interest" seems comparable with "grave and endangering."
381 U.S. 479 (1965).
' Id. at 484-85. The right to be left alon6 was recognized by Justice Brandeis in his famous
dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
5,See generally Comments on the Griswold Case, 64 MICH. L. REV. 197 (1965).
of privacy requires more than a rational relationship to a colorable state
interest. Thus, if an act of a private citizen in no way injures society or
any third person, it is a right:
Anglo-American law starts with the premise of thorough-going self
determination. It follows that 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 ....5
The only legitimate reason for limiting the right of privacy in this context
is that the patient's refusal of treatment injures society or some third party
whom the patient owes a duty. For example, a parent owes a duty to his
child, as does a pregnant mother to her unborn. The inquiry thus turns
specifically to finding such an injury. Injury to a colorable public interest
will not do. In fact, performance of medical procedures without the consent
of one authorized to give it constitutes an assault and battery. 54
Administration of medical treatment despite such a refusal, even with good
intentions, can be costly even if the treatment is successful since itis no defense
that the unauthorized treatment was skillfully performed. 5
In State v. Congdon," a group of pacifists refused to seek shelter
during a state mandated practice air raid alert. It was held that the state
may interfere with the individual's right of self-determination to protect a
citizen from his own folly even though it is precisely this folly which could
have detrimental effects on other citizens. 7 That is, because of his refusal
to seek shelter, a person could be injured, and others could not simply
abandon him. Injury to others would result since time and efforts of
physicians and attendants may be required that could have been given to others.
Similarly, persons should be forced to participate in lifeboat exercises and
fire drills because it is possible that during an actual emergency the
nonparticipators may obstruct others and disrupt the necessary orderly
procedures by simply being in the way in every sense. Unfortunately, such
analysis was not developed by the court in the Congdon case.
As was noted above, the Supreme Court in Jacobson measured the
duty of the state to intervene and sustained imposition of a fine for refusal
to receive vaccination. Similar reasoning has been used in other cases.
Compulsory school vaccinations have been upheld time and time again. In
Sadlock v. Board of Education" it was argued that compulsory vaccination
violated religious freedom and personal liberty. The court upheld a
resolution of the school board making vaccination a mandatory prerequisite for
admission since it is within the police power of the state to prescribe
reasonable methods to combat disease. Similarly, a court may even
appoint a guardian for unvaccinated minors, and vaccinate them."9
Moreover, the state may require the purification of sewage and the public water
supplies to prevent pollution."0 Finally, a state university can deny
admission to a student who refuses to submit to an X-ray examination for the
detection of tuberculosis."' Under cases such as Congdon, where but a
small state interest can be demonstrated, it can nevertheless be argued
that the state has a sufficient interest in each individual to protect him
from himself.62 Thus, there are decisions sustaining legislative fluoridation
of water,6 3 though it was not always viewed as a medical procedure." It
should be noted, however, that fluoridation of a municipal water supply
does not require an individual to ingest fluorine, since he has several
alternatives, such as bottled water.
There exist a number of cases wherein a competent adult's desire to
forego an important medical procedure has been upheld by courts. In
Petition of Nemser65 the court dismissed the petition by two children of an
80-year-old diabetic for appointment of a temporary representative to
authorize a foot amputation. Noting that the woman was not an adjudicated
incompetent, the court refused to invoke the doctrine of parens patriae,
though it did appoint a guardian ad litem and designated a psychiatrist
6' 137 N.J.L. 85, 58 A.2d 218 (Sup. Ct. 1948).
E.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964).
60 E.g., State Bd. of Health v. City of Greenville, 86 Ohio St. 1, 98 N.E. 1019 (1912).
61 State ex rel. Halcomb v. Armstrong, 39 Wash. 2d 860, 239 P.2d 545 (1952).
62 The interest of the state is based upon the belief that each citizen makes a valuable and
unique contribution to society. Is this interest truly sufficient, however, to outweigh the
individual's right to refuse treatment when he harms no one but himself?.
63 E.g., De Aryan v. Butler, 119 Cal. App. 2d 674, 260 P.2d 98 (1953), cert. denied, 347 U.S.
1012 (1954); Kraus v. City of Cleveland, 76 Ohio L. Abs. 214, 121 N.E.2d 311 (Ct. App. 1954).
1, Dowell v. City of Tulsa, 273 P.2d 859, 864 (Okla. 1954).
65 51 Misc. 2d 616, 273 N.Y.S.2d 624 (Sup. Ct. N.Y. County 1966).
to examine the woman. The same result obtained in Palm Springs General
Hospital,Inc. v. Martinez." There the appellee, a 72-year-old woman, was
critically ill from an anemia condition. Minor surgery was necessary to
keep her alive so that periodic blood transfusions could be made. She
refused and expressed a desire to die. The hospital petitioned for
permission to perform the surgery, and the court denied relief, stating:
Based upon the debilitated physical condition of the defendant and the fact
that performances of surgery upon her and administration of further blood
transfusions would only result in the painful extention of her life for a short
period of time, it is not in the interest of justice for the Court of Equity to
order that she be kept alive against her will. A conscious adult patient has
the right to refuse medical treatment, even when the best medical opinion
deems it essential to save her life. 7
There exists other authority which seems to confirm this general right to
be left alone and to refuse to accept lifesaving medical procedures even
when necessary to save the patient's life." Petitions are not to be granted
just because a person happens to be old when there is no evidence of
mental incompetence. On the contrary, it is necessary to establish mental
incompetence by evidence which is clear, convincing, and satisfactory at
the time of the hearing. 9 As will be discussed later in this study, religious
and nonreligious convictions of adults who are not incompetent and have
no legal duties to others must be respected."0
66 No. 71-12678 (Cir. Ct. Dade County, Fla. July 2, 1971).
61Guardianship of Raasch, No. 455-996 (County Ct. Milwaukee County, Wis. Jan. 21, 1972).
In the Raasch case, the court refused to order a lifesaving medical procedure after
determining that the patient was not incompetent. There was absolutely no evidence of
incompetence-the patient knew what she was doing and refused the operation. The patient died on
March 6, 1972. In Guardianship of Phelps, No. 459-207 (County Ct. Milwaukee County, Wis.
July 11, 1972). Michael Bratcher sought to file a petition for himself as temporary guardian
of Mrs. Phelps, a Jehovah's Witness who had refused all blood transfusions before becoming
comatose. Mrs. Phelps had no history of mental disease or incompetence, and had signed a
release in which she refused to permit treatment. The court found: (1) there was no mental
disease; (2) the patient had refused blood while conscious; (3) she was sincere in her religious
beliefs; and (4) a court "cannot use a guardian devise in order to foist its own personal
opinions upon an adult competent citizen." The petition was denied and Mrs. Phelps died
the following day.
" See Westerberg v. Olson, 236 Wis. 301, 295 N.W. 24 (1940); Warner v. Welton, 232 Wis.
467, 287 N.W. 803 (1939); In re Streiff, 119 Wis. 566, 97 N.W. 189 (1903); In re Welch, 108
Wis. 387, 84 N.W. 550 (1900).
" In Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985 (1971), the court held
that convictions expressed by a 59-year-old man before he had been shown to be incompetent
must be observed by the hospital. Since the patient had been involuntarily admitted to the
hospital and compelled against his protestations to take medication, the court held that his
complaint stated a cause of action under the federal civil rights statutes. Rejecting the
applicability of the doctrine of parenspatriae,the court noted that his alleged incompetence
Interests of Third Parties
What are the interests of third parties which will enable the police
power of the state to proscribe a competent adult's practice of his religious
One such interest is the protection of children.7 In People ex rel.
Wallace v. Labrenz72 and State v. Perricone7,3 Jehovah's Witnesses refused
blood transfusions for their children. It is a well established principle of
law that a parent may incur criminal liability for failing to provide
adequate medical care for his child.74 It has been held that an unreasonable
refusal to consent to a surgical operation on one's child violates a legal
obligation. 7 The justification for such holdings is the power of parens
patriae7.1 The parent commits a crime when, due to his religious belief, he
denies his child medical aid required by statute, and if the child
consequently dies, the parent will be liable for manslaughter. Though courts
have refused to order medical treatment for adults who decline such
treatin no way altered his previously held religious views. The court stated: "[T]here is no
justification for defendants-appellees substituting their own judgment for that of their
patient." 446 F.2d at 69. Applying the "compelling state interest" test, the court noted that
the first amendment rights do not rest upon the same "slender grounds" as the fourteenth
amendment rights. State action which might otherwise be objectionable under the latter
amendment will be upheld if supported by "any rational basis." The Winters court said no
"clear interest" of society or of a third party would be substantially affected by the patient's
exercise of his rights.
1, See, e.g., People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, cert. denied, 344
U.S. 824 (1952); Morrison v. State, 252 S.W.2d 97 (Mo. Ct. App. 1952) (dictum); Raleigh
Fitkin-Paul Morgan Mem. Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537 (per curiam), cert.
denied, 377 U.S. 985 (1964); State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert. denied, 371
U.S. 890 (1962); Hoerner v. Bertinato, 67 N.J. Super. 517, 171 A.2d 140 (Juv. & Dom. Rel.
Ct. 1961); Santos v. Goldstein, 16 App. Div. 2d 755, 227 N.Y.S.2d 450 (1st Dep't 1962); In re
Vasko, 238 App. Div. 128, 263 N.Y.S. 552 (2d Dep't 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).
72 411 Ill. 618, 104 N.E.2d 769, cert. denied, 344 U.S. 824 (1952).
73 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890 (1962).
U In People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903), the court rejected the defense that
failure to give medical treatment to a child was justified since it was due to religious
conviction. The court stated that society has an interest in the welfare of the child. It is clear that
the status quo simply cannot be maintained in such situations since the right to practice
religion freely does not include the right to expose the community or a child to communicable
disease, or the latter to ill health or death. Moreover, courts will interfere when a parent
abandons his child. Cf. State v. Sandford, 99 Me. 441, 59 A. 597 (1905); Palmer v. State, 223
Md. 341, 164 A.2d 467 (1960).
11See, e.g., Oakley v. Jackson,  1 K.B. 216; Rex v. Wagstaffe, 10 Cox Crim. Cas. 530
(1868); Rex v. Lewis, 6 Ont. L.R. 132, 1 B.R.C. 732 (1903).
11The doctrine of parenspatriae provided the rationale for the courts in State v. Perricone,
37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890 (1962) and People ex rel. Wallace v.
Labrenz, 411 Il1. 618, 104 N.E.2d 769, cert. denied, 344 U.S. 824 (1952).
ment on religious grounds," the state's interest in protecting children
outweighs the first amendment right to free exercise, and necessary medical
treatment of children may be compelled."8 For example, in The Queen v.
Senior,7" an English case, the defendant was a member of a faith healing
sect. When his 9-month-old infant contracted diarrhea and pneumonia,
the defendant called in the elders to pray and anoint the child with oil.
Though seven of his previous children had all died under similar
circumstances, the defendant refused to call for medical assistance. The child
died and the defendant was indicted for manslaughter under the
Prevention of Cruelty to Children Act. 0 The trial judge directed the jury that it
must be satisfied that the death of the child had been caused by the want
of medical assistance, that medical aid was so essential that reasonable
care would require it, that the defendant reasonably possessed the means
to provide medical care, and that the defendant had violated the statute
and in so doing accelerated the child's death. The jury was told that such
conduct constituted manslaughter, no matter what the defendant's
motivation or state of mind.
There is no doubt that the courts have the power to order compulsory
treatment of children for any serious injury or sickness. In Welker v.
Welker,"' it was stated in dictum that custody may be denied to a parent
whose religious beliefs would prevent a child from receiving vaccinations
or blood transfusions. As a matter of fact, it is generally held that a
parent's refusal on religious grounds to permit a child to receive a
necessary blood transfusion amounts to statutory neglect and permits the court
to order a transfusion.82
There are cases where the value of a particular procedure was not
clear. In In re Vasco83 a two-year-old child who suffered from a malignant
eye disease was provided with an operation by order of the court when the
parents refused to consent. Although the court declared that the refusal of
the parents was arbitrary, in reality it was not since the operation carried
only about a 50 per cent chance of cure.14 Similarly, at least one court has
ordered surgical care for a child suffering from limb deformity." Medical
treatment will not be ordered for a child, however, when the treatment
endangers life, and generally will not be ordered when there is difference
of medical opinion as to the efficacy of the treatment." In such cases, the
parents' decision normally is determinative.
There are, of course, borderline cases. In In re Green" a 16-year-old
child who suffered from polio and paralytic sclerosis was unable to stand
due to the collapse of his spine. Physicians recommended a spinal fusion.
The child's mother, a Jehovah's Witness, refused to consent to a blood
transfusion and the court appointed a guardian to protect both the child
and the state. The court refused, however, to invoke the doctrine of parens
patriae and find the child "neglected" under state law since his life was
not immediately imperiled by his mother's refusal to permit blood
transfusions incident to surgery.88 In In re Hudson8," a mother objected to an
operation to correct a congenitally deformed arm which was ten times its
normal size. Medical opinion revealed that there was a fair risk of grave
danger. The majority of the court reasoned that although the mother
objected to the operation she was a fit parent, and a court of equity has no
power to take custody of a child under such circumstances and subject the
child to an operation that might result in death.
Perhaps the most puzzling cases having to do with the free exercise of
religion are the cases involving the handling of poisonous snakes by
members of various churches as proof of faith. In these so-called "snake cases"90
a poisonous snake was brought to a religious service and "true" believers
were called upon to come to the front of the church and practice the "act
of faith" by handling the snakes. In Hill v. State9," in which the snake bit
no one, the defendant contended that the ceremony was an integral part
of his religious faith and to deny him his right to hold such ceremonies was
to deny him his constitutional right to freely exercise his religious faith.
The court reasoned, however, that religious beliefs are subject to restraints
imposed for the benefit of the community.
Amputation of a 12-year-old child's severely deformed arm was not ordered when the
parent's objections were based on a fear of possible failure of the operation in In re Hudson,
13 Wash. 2d 673, 126 P.2d 765 (1942). The Hudson court was impressed with the high risk of
death involved in the operation. In In re Frank, 41 Wash. 2d 294, 248 P.2d 553 (1952), the
parents refused to have the child's speech impediment corrected. This was not deemed
sufficient reason to award custody of the child to someone who would have the impediment
1, 488 Pa. 338, 292 A.2d 387 (1972).
13 Wash. 2d 674, 126 P.2d 765 (1942).
90 See, e.g., Hill v. State, 38 Ala. App. 404, 88 S.2d 880, cert. denied, 264 Ala. 697, 88 S.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).
1 38 Ala. App. 404, 88 S.2d 880, cert. denied, 264 Ala. 697, 88 S.2d 887 (1956).
The Hill case is significant because, no matter how revolting, the
religious practice of snake handling was an integral part of the worship
service of the particular church. Thus, Hill demonstrates that when risk
of danger to the public is grave the first amendment right to free exercise
must be curtailed. The Hill case is also interesting because one motive for
the statutory enactment prohibiting snake handling9" may have been to
prevent unorthodox religious practices from causing death or serious injury
to those who handled snakes as well as to protect those who simply
witnessed the ceremony. 3 Seemingly, the snake cases demonstrate the state's
interest in protecting the individual from himself. On the other hand,
argument can be made that the interest of the state is in preventing harm
to spectators and the general public should the snakes escape. The answer
would be to require an escape-proof glass cage to protect the spectators. It
seems clear that the cases can be read either way. That is, it is not clear
whether an essential part of the church's liturgy is forbidden for the
protection of the handlers of the snakes or the general public or both. In Lawson
v. Commonwealth9,5 however, the Kentucky Court of Appeals sustained a
"law prohibiting the practice of a religious rite which endangers the lives,
health, or safety of the participants,or otherpersons.'" The breadth of the
language of the Kentucky statute seems to protect both handlers and
onlookers. Similarly, it would seem that a Tennessee statute prohibiting
the handling of poisonous snakes in religious ceremonies so as to endanger
the life of any person is directed in part toward insuring the safety of the
handler.9" In fact, in Harden v. State9" the court dismissed the argument
that proper precautions were employed for observers and stated that "such
precautions do not at all protect those who are actually handling these
12 ALA. CODE tit. 14, §§ 419(2)-(3) (1958).
'1 There is a crucial difference between active and passive events. An affirmative right exists
in the state to prohibit dangerous affirmative activities under the police power, whereas no
analogous right exists, or apparently ever has existed in the United States under the police
power, to prohibit persons from failing to seek medical attention for their ills. Individuals can
be prevented from exposing themselves or others to snake bites just as they can be restrained
from practicing bigamy and murder. But these are active religious practices requiring the
individual's volition. To say that a distinction between "misfeasance" and "nonfeasance"
(commission and omission) is "nonsense," is to overlook the reality of human activity and
free will. But see Calif. Comment, supra note 2, at 868.
" See Harden v. State, 188 Tenn. 17, 24, 216 S.W.2d 708, 710 (1948), wherein the court stated
that the legislative purpose in outlawing such activities was to protect people "participating
in or attending religious services."
" 291 Ky. 437, 164 S.W.2d 972 (1942).
Id. at 441-42, 164 S.W.2d at 974 (emphasis added).
'7 TENN. CODE ANN. § 39-2208 (1975) provides that "[ilt 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." (emphasis added).
11 188 Tenn. 17, 216 S.W.2d 708 (1948).
poisonous snakes."99 The court continued, "the purpose of this statute...
is to . . .better 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 may be inferred that the legislature intended to except any one
from its provisions."' 10
The snake cases state the constitutional issue rather clearly: Can the
state directly intervene to protect the individual himself against his own
folly or foolishness even when the individual acts in the name of the free
exercise of religion? But because it is not clear whether the state's interest
in prohibiting snake handling stems from protection of the handler or the
public, the snake cases do not solve the issue. A clearer perspective can
be gained from examination of cases on forced medical procedure
administered to adults.
The Classical Cases
The case of Raleigh Fitkin-Paul Morgan Memorial Hospital v.
Anderson'01 is interesting because the patient was pregnant and refused
blood transfusions due to her religious beliefs. The Supreme Court of New
Jersey, in a unanimous decision, found 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.' 1 2 The foundation for this
determination of the court is found in the state's power to intervene for the
welfare of the child.03 The broader constitutional issue of mandatory aid
to a nonpregnant adult was not reached. However, the court ordered that
transfusions could be administered to the mother "if necessary to save her
life or the life of her child, as the physician in charge at the time may
determine."''1 Perhaps the interest of the state directly involved the
wellbeing of the unborn child and this interest justified ordering unwanted
transfusions which were the only way to save the child's life. If this is so,
this case does not differ from those discussed above concerning the state's
police power and children. On the other hand, if the court meant to
authorize transfusions for the mother even if they were not necessary to save the
child, then the case may be authority for the proposition that adults
cannot refuse lifesaving medical treatment. Anderson, however, is far from
clear in this respect since the interest of the state includes preventing
" Id. at 24, 216 S.W.2d at 710.
Id. at 21-22, 216 S.W.2d at 710.
10142 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964).
10242 N.J. at 423, 201 A.2d at 538.
" "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." Id.
abandonment of the child.'0 5 The case does demonstrate the "conduit"
theory, i.e., that the mother is the vehicle or means by which the unborn
child can be reached. Moreover, even though counsel for the hospital
argued that the state cannot permit the suicide of its citizens and in fact
may punish them for the attempt, the court explicitly refused to resolve
the constitutional question of compulsory treatment of adults.06 Whether
the court should have addressed the constitutional question is a matter
open to debate.0 7
Application of President and Directors of Georgetown College'0 is
most notorious because the thrust of that case was to mandate lifesaving
medical treatment of a sick patient who refused to consent on religious
grounds. In the Georgetown case, a single member of the court of appeals,
Judge Skelly Wright, issued an order for a needed blood transfusion, after
the order had been refused by the district court. In so ordering, Judge
Wright did not reach the constitutional question of the right of a
competent adult to refuse lifesaving medical treatment on religious ground, but
rather based his decision on common law grounds. These included:
(1) The description of the patient as in extremis and therefore
not compos mentis, thus giving the court the power and duty of
(2) The state's parenspatriaepower to prevent an adult from
abandoning a minor child. The judge called the patient's
conduct the "most ultimate of voluntary abandonments."" 0
(3) The dilemma of the hospital administrators and doctors
who must decide whether to treat an objecting patient or let him
die, thus risking civil and/or criminal liability in either case."'
,' It has been stated that "[tihe Anderson decision is the first instance of a judicial mandate
compelling a person of sound mind and reasonable judgment to submit to a blood transfusion,
even though such transfusion violates his fundamental religious tenents." 40 NOTRE DAME
LAW. 126 (1964). However, the state's interest in the welfare of the adult mother is still only
indirect insofar as it seeks to protect the child from abandonment caused by a willful act of
the mother. Refusing lifesaving treatment has been termed the "most ultimate of voluntary
abandonments." Application of President & Directors of Georgetown College, Inc., 331 F.2d
1000, 1008 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964).
" 42 N.J. at 423, 201 A.2d at 538.
,0,Cf. 33 FORDHAM L. REV. 513, 517 (1965).
log331 F.2d 1000 (D.C. Cir.), cert. denied, 337 U.S. 978 (1964).
'" 331 F.2d at 1008; cf. Collins v. Davis, 44 Misc. 2d 622, 254 N.Y.S.2d 666 (Sup. Ct. Nassau
County 1964). In Collins, the wife of a comatose patient refused to consent to surgery upon
her husband who had voluntarily submitted himself to the care of the hospital. The court
ordered the necessary treatment on the ground that the patient and his wife could not put
the hospital in an impossible position.
"1 331 F.2d at 1008.
..Id. at 1009; see Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962). Judge Wright in
Georgetown noted that "[w]hether or not a waiver signed by a patient in extremis would
The key question in Georgetown involved the basic right of the
patient, Mrs. Jones, to freely practice her religion versus the interest of
society in limiting or, in this case, nullifying that right. It was clear that this
religious belief was so important to her that she was willing to give her life
rather than submit to medical treatment. The court, however, ordered her
to submit. It is not very helpful to say that the state's interest was in
preventing suicide under the common law. Mrs. Jones at no time wanted
to die and took no steps to affirmatively bring about her own death. Even
Judge Wright admitted that death was, in this case, "not a
religiouslycommanded goal, but an unwanted side effect of a religious scruple.""' 2
Characterization of her conduct as suicide is extremely tenuous.
Judge Wright's argument concerning the in extremis and non compos
sui state of the patient is weak at best. The fact of the matter was that
Mrs. Jones refused medical treatment, and made known her refusal, long
before she reached a critical state. It would be a different situation if she
had not previously refused treatment, or was unconscious ab initio; that,
however, was not the case. Her right to refuse should be protected even
after she could no longer assert it. A court should not use juridical language
as a subterfuge for imposing its own definition of "life,"I" for there is grave
danger that any decision by the patient which is inconsistent with the
general mores of society could in fact be viewed by a court as evidence of
incompetency. Such would be a totally irresponsible use by the court of
its parens patriae power." 4 It is, however, an exaggeration to argue that
"[tihe purpose of parens patriae, is to provide a vehicle for the court to
physically protect the child and not to protect a parent so he can in turn
provide for his child.""' 5 Enough is known of modern child psychology to
justify extension of the court's duty to protect the well-being of the child
to include psychological well-being. In this respect, it is difficult to argue
against the role assumed by Judge Wright in Georgetown. But there is a
contrary argument of some moment, namely, that the parent refusing
medical treatment is providing the child with a most important lesson:
that there are some moral and religious principles more important than
physical life itself.
protect the hospital from civil liability, it could not be relied on to prevent criminal
prosecution." 331 F.2d at 1009 n.18. But the court further noted: "[TI]his case does not involve a
person who, for religious or other 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.
"' 331 F.2d at 1009.
" See 9 UTAH L. REV. 161, 169 (1964).
"' See 113 U. PA. L. REV. 290, 294 (1964), where the author convincingly argues that there
was little evidence in Georgetown to indicate incompetence.
"I Note, Compulsory Medical Treatment: The State's Interest Re-evaluated, 51 MINN. L.
REv. 293, 301 (1966).
The most convincing argument is that the state had an important
interest in Georgetown since the patient was the mother of a minor child
who would have suffered had the patient died."' The criterion was not the
"social worth" of the individual as a mother, but the state's interest in
making sure that the child not be abandoned, even if abandonment be
religiously motivated."7 The rights of third parties seem a solid ground for
intervention by the state. Any other rationale would create a clear
precedent for compelling any reluctant patient to receive treatment that
medical authorities feel is necessary to save his life. If the desire of the patient
can be disregarded, it is impossible to avoid the difficult task of weighing
the rationality of the doctors against the rationality of the individual
patient, of weighing the doctors' concept of "life" against that of the patient.
The dissent of then Circuit Judge Burger to an en banc denial of a
rehearing is of particular importance since it recognized the right of the
individual to follow his own conscience:
[W]e have an obligation to deal with the basic question whether any
judicially cognizable issue is presented when a legally competent adult refuses,
on grounds of conscience, to consent to a medical treatment essential to
preserve life . . . . The end, desirable as it obviously developed, cannot
establish the existence of a case or controversy if such did not exist
independent of the sequel to the enforced medical treatment." '
Here lies the crux of the constitutional issue with which both Judge Wright
and the court of appeals sitting en banc refused to grapple. Judge Burger
described that issue:
The threshold issue, therefore, is whether the hospital had a right which it
was entitled to require the court to enforce . . . . No affirmative act of the
patient is suggested as invading or threatening any right of the hospital. So
we must decide whether an "invasion" of legal right can be spelled out of a
relationship between the patient's refusal to accept a standard medical
treatment thought necessary to preserve life and the possible consequences to the
hospital if, relying on her refusal of consent, it fails to give a transfusion and
death or injury follows . . . . The choice between violating the patient's
convictions of conscience and accepting her decision was hardly an easy one.
However, since it is not disputed that the patient and her husband
volunteered to sign a waiver to relieve the hospital of any liability for the
consequences of failure to effect the transfusion, any claim to a protected
right in the economic damage sphere would appear unsupported."'
"' 331 F.2d at 1008.
See 40 NOTRE DAME LAW. 126, 128 (1964).
" 331 F.2d at 1015 (Burger, J., dissenting).
The rationale for the fundamental right to be left alone was developed in
Justice Brandeis' dissent in Olmstead v. United States,'" which recognized
that right as founded not on the free exercise clause of the first amendment
but as belonging to everyone. Judge Burger in Georgetown said of Justice
Nothing in this . . . 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.''
There is a definite choice of values, especially at the boundary between
public interest and private conscience:
It is at the periphery of the boundaries of power where the guidelines are less
clear that an appealing claim presents difficult choices, but this is precisely
the area in which restraint is called for in light of the absolute nature of our
powers and the finality which often, as here, attends our acts. But we should
heed Cardozo's counsel of restraint and reconcile ourselves to the idea that
there are myriads of problems and troubles which judges are powerless to
solve; and this is as it should be. Some matters of essentially private concern
and others of enormous public concern, are beyond the reach of judges.,
Judge Burger more than intimates that there exists a right to
selfdetermination even in the area of accepting or refusing lifesaving medical
Relying heavily on the rationale employed in the Georgetowncase, the
court in United States v. George'2 ordered necessary transfusions although
the patient was not in extremis and was found to be "rational and
coherent." The court expressed deep concern about the ethical questions 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."2' 4 The meaning of this last
statement must rermain a mystery. Perhaps it means that the patient can
request nontreatment but cannot demand it from the doctors. In any case,
it explains nothing and does no more than describe a conflict of consciences
which is there resolved in favor of the medical profession. The
constitutional issue was not reached or discussed. The situation in George was
277 U.S. 438, 471 (1928) (Brandeis, J., dissenting).
331 F.2d at 1017 (emphasis in original).
', Id. at 1017-18. See also Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d
215, 267 N.Y.S.2d 450 (Sup. Ct. New York County 1965).
"1 239 F. Supp. 752 (D. Conn. 1965).
"A Id. at 754.
quite similar to that in Georgetown since the patient was the father of four
minor children and was voluntarily admitted to the hospital for treatment
of a bleeding ulcer, but objected to blood transfusions because he was a
Jehovah's Witness. The ultimate action of the court was very strange. The
court advised the patient that it was powerless to compel a transfusion and
that he was free to resist by simply placing his hand over the injection area.
The patient said that he would "in no way" resist the doctors' action once
the court order was signed."5
Erickson v. Dilgard2 s upheld a limited right of a competent adult to
refuse lifesaving medical treatment. The court in Erickson rejected the
contention that the medical community should be the final arbiter in this
area. Asserting that "it is always a question of judgment whether the
medical decision is correct,"' 27 the court concluded that it is the individual
who must make the final determination. The patient was a male adult who
was not said to have minor children or to be incompetent. The court denied
the doctor's application to administer needed blood:
[I]t 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. 21
It would seem that this case is authority for the proposition that any
competent adult at least has a limited right never to be forced to submit
to unwanted treatment. As discussed above, the state's interest in the
welfare of minor children may limit that right. 29
Another case which recognized the right to refuse treatment, In re
Estate of Brooks,' dealt directly with the constitutional issue. In that
case, the state contended that society has an overriding interest in
protect" Some commentators suggest that the patient in George really wanted blood but would not
ask for it. Note, The Dying Patient:A Qualified Right to Refuse Medical Treatment, 7 J.
FAm.L. 644, 657 n.49 (1967). This is an amazing conclusion since there is nothing in the case
to suggest anything of the kind, and such a conclusion is an insult to the integrity of the
individual's religious beliefs.
li 44 Misc. 2d 27, 252 N.Y.S.2d 705 (Sup. Ct. Nassau County 1962).
Id. at 28, 252 N.Y.S.2d at 706.
"I A case similar to Erickson is In re Appointment of Yetter, No. 1973-533 (Pa. Ct. C.P.
Northampton County Orphans' Ct. 1973). Citing the United States Supreme Court decision
in Roe v. Wade, 410 U.S. 113 (1973), the Yetter court determined that the right of privacy
also includes the right to die. It was determined that the state should not interfere where there
are no minor or unborn children and no clear and present danger to public health, welfare,
or morals. The patient in Yetter had been competent when she first refused treatment, and
the court said it would not interfere even though her decision might be considered unwise,
foolish, or ridiculous.
- 32 Ill. 2d 361, 205 N.E.2d 435 (1965).
ing the lives of its citizens even when treatment is resisted on religious
grounds. The Brooks case was distinguished from Georgetown because the
patient in Brooks was neither in extremis nor the parent of a minor child.' 3'
The court reasoned that although religiously motivated actions are not
totally immune from regulation, the patient's refusal to consent to
transfusions was not an "overt or affirmative act . . . [constituting] any clear
and present danger to society .. .'"' Thus, the Brooks case returned to
the "clear and present danger" doctrine. The court determined that the
state may interfere with religious activities only "when religious 'principles
break out into overt acts against peace and good order.' """ Thus it may
be a violation of first amendment rights to compel a competent adult to
submit to a blood transfusion against his religious principles. Because of
the overriding public policy of preventing danger to the public and the
creation of public wards, courts still cast a wary eye to the exercise of the
right to refuse treatment even though the first amendment provides a solid
foundation. 34 One author claims that this clear and present danger test,
valid for free speech, should not apply to religious exercises. In the view of
that author the test for state interference should be based upon the
balancing of various public interests. Thus, he concludes that the court in Brooks
came to the correct conclusion by using the wrong test.'35
In Brooks, the appellant had informed her doctor over a 2-year period
that her religious beliefs precluded her from receiving medical
transfusions. The court steadfastly refused to order violation of beliefs absent an
overriding danger to society." 6
"' Id. at 367-68, 205 N.E.2d at 440.
'32 Id. at 369, 205 N.E.2d at 440.
'" Id. at 373, 205 N.E.2d at 442.
13"It is not suggested here that the courts will bow in every case where religious convictions
are raised. If there is the slightest hint of incompetence, the courts usually appoint a
guardian. In John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971), an adult
refused blood transfusions on religious grounds. A victim of an accident which had ruptured
her spleen, she was conscious but in shock and in need of a lifesaving operation. The court
appointed a guardian who consented to blood transfusions. The court stated: "Religious
beliefs are absolute, but conduct in pursuance of religious beliefs is not wholly immune from
governmental restraint." Id. at 578, 279 A.2d at 672. The court referred to the interest of the
state in cases involving the use of snakes in religious worship, fluoridation of drinking water,
and proscription of polygamy.
13 Sullivan, The Dying Person-His Plight and His Right, 8 NEW ENG. L. REV. 197, 209
I" The danger of a court imposing a decree of "incompetence" on a helpless patient is
illustrated by Holmes v. Silver Cross Hosp., 340 F. Supp. 125 (N.D. Ill. 1972) wherein a
20year-old unmarried male who was injured but conscious and competent refused blood for
religious reasons. All of his relatives refused to give their consent on similar religious grounds.
After the patient lost consciousness, a probate court named a conservator for him as an
incompetent minor and transfusions were administered. A civil rights action was commenced
In both Brooks and Erickson, what in fact took place was a balancing
of interests. Among the public interests to be considered, the predominant
is that of the adult, competent patient. His wishes, short of suicide, must
be observed and enforced. The interests of the medical profession and the
hospitals in maintaining standards, particularly in the context of
emergency situations, must be considered, but the predominant interest must
be that of the competent adult patient. The interest of the state in keeping
its citizens off of public relief and out of state supported institutions must
be considered. These and other interests must be weighed and balanced
in determining whether the state may interfere with the exercise of
THE ARGUMENTS ON COMPULSORY MEDICAL TREATMENT
The issue of compulsory medical treatment of competent adults,
whether refusals of treatment are religiously motivated or not, includes
various problems of a legal and moral nature: the right to die, suicide,
sanctity of life, consent, parenspatriae,the public interest and individual
rights, and the right to privacy and to be left alone. These are delicate
problems, not all of which have been resolved either by statute or by
Some preliminary distinctions are in order. The first is between those
who have voluntarily sought out medical care in hospitals and clinics and
those who have not. This is an important distinction insofar as the legal
and moral liabilities of institutions and doctors are concerned. Judge
Wright in Georgetown relied explicitly upon the patient's voluntary
hospital admission as one reason for ordering blood transfusions for a
nonconsenting adult.'37 In other words, there is a social interest per se involved
whenever a patient has voluntarily sought out the aid and services of
medical facilities and doctors. This may be sufficient to deny such a
patient legal protection in his refusal to consent to lifesaving treatment. Such
an interest, of course, would not legitimate compulsory treatment by a
doctor who entered a home uninvited to treat a sick person. To hold
otherwise would be to significantly curtail the rights of an individual to
determine what is to be done with his own body. For there does exist the right
of the person to be left alone.' 3 It seems that the patient waives this right
against the hospital and the conservator. The district court denied the hospital's motion to
dismiss, but granted a similar motion of the conservator, on determining that the latter
possessed judicial immunity.
331 F.2d at 1007.
' See the dissenting opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438,
478 (1928), cited in Application of President & Directors of Georgetown College, 331 F.2d at
1016-17 (Burger, J., dissenting).
to be left alone when he voluntarily enters the hospital, and consents to
some medical treatment. Such a patient has placed both the hospital and
the doctor in a vulnerable legal and moral position.'39 In other words, this
distinction will not necessarily be determinative in any one particular case,
but the judiciary should make the distinction between the patient who has
sought aid and the one who has not. The latter should have greater freedom
in determining what factors will prolong his life than the former.
It is important to note that both courts and commentators have
expressed incredulity for the religious beliefs of others, particularly when
such religious beliefs differ radically from the accepted mores. This
attitude is simply a subterfuge for escaping the difficult constitutional issue.
One can see this in the Georgetown and George cases. In each of these
cases, the court suggested that although the individuals involved were
unwilling to abandon their religious beliefs, they nevertheless wanted to
live, and instead of resenting society's interference, they actually
welcomed it. This is a gratuitous assumption with no foundation in the facts
before the court. Such an assumption imputes insincerity where only some
weakness, common to all men and women facing such a terrible and final
decision, was evident. The courts should seek to ascertain the true wishes
and desires of these patients, 40 and should not prey upon their weaknesses
and use them as a pretext for intervention and substitution of the court's
values for those of the patient.' It would be more honest to simply accept
the decision .of the patient as sincere, if the patient is competent to make
a decision, and to squarely face the constitutional issue presented.
This Article has discussed the power of parens patriae as used on
behalf of such people as children and mental incompetents."' Parens
patriaeis the state's power to protect persons with "disabilities who have
no rightful protector,' '4 even over the religious objections of parents and
I' It is highly doubtful that a hospital or its staff would be either civilly or criminally liable
if a waiver had been freely and knowingly signed by the patient and/or the next of kin. Cf.
Pratt v. Davis, 224 Ill. 300, 309-10, 79 N.E. 562, 565 (1906); Jackovach v. Yocom, 212 Iowa
914, 237 N.W. 444 (1931); Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106 (1912). If the patient
is delirious and refuses treatment, and the family refuses to consent, the doctor and hospital
are normally absolved from civil liability. See Littlejohn v. Arbogost, 95 Ill. App. 605 (1901).
140 The courts should consider the true desires of patients, particularly if they have expressed
opposition to a particular medical procedure prior to their entrance into the hospital or prior
to becoming non compos sui.
"I But see Note, Compulsory Medical Treatment and the Free Exercise of Religion, 42 IND.
L.J. 386, 403 (1967); Calif. Comment, supra note 2, at 864-65.
42 See text accompanying notes 71-76 & note 76 supra.
1 Parenspatriae has been described as follows:
next of kin. It has long been held that this power extends to incompetent
adults as well.' This concern of the state has nothing to do with socialistic
principles, but rather with a concern for benefit to the individual.14 It must
be noted that the power of parenspatriaehas never been exercised for the
benefit of competent adults. An Illinois court refused to extend the
doctrine to adults for conduct which does not endanger "clearly and
presently, the public health, welfare or morals.""' Certainly society's concern
for individual life is deep, for a number of reasons. Is this interest so great,
however, that it should outweigh the right of a competent adult to refuse
some lifesaving medical procedure? This is the basic constitutional
question and one that can be solved only by a balancing process, not by an
extension of the doctrine of parens patriae.
In cases where the courts have ordered medical treatment of adults by
extension of the parens patriaedoctrine, there were either unborn or minor
children involved. 4 The Georgetown can be criticized for extending the
parens patriae beyond its intended limits. Moreover, to allow a court to
order treatment whenever a previously objecting patient becomes non
compos mentis because of his illness may prove extremely dangerous
for human rights. As was previously noted, if a patient had objected
before losing consciousness, the court could simply wait until he is
sufficiently incapacitated and then base its determination to authorize
treatment on incompetency-a complete abuse of parenspatriaeand a
circumvention of the patient's right to refuse treatment. Clearly, "[tihe purpose
of parens patriaeis to provide a vehicle for the court to physically protect
the child and not to protect a parent so that he can in turn provide for his
child.' ' 48 This seemed to be the view of the Supreme Court in the Prince
decision.14 In any event, parens patriae should be limited to subsidiary
This parens patriae jurisdiction is a right of sovereignty and imposes a duty on the
sovereignty to protect the public interest and to protect 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.
Johnson v. State, 18 N.J. 422, 430-31, 114 A.2d 1, 5 (1955), cert. denied, 350 U.S. 942 (1956).
See 64 MICH. L. REv. 554, 555 n.5 (1966).
" Note, Medical Aid for Children Without ParentalConsent, 13 Wyo. L.J. 88, 89 (1959).
Contra, How, Religion, Medicine and Law, 3 CAN. B.J. 365, 385 (1960).
I"In re Brooks Estate, 32 Ill2.d 361, 205 N.E.2d 435 (1965). The use of parens patriaewas
also rejected in Winters v. Miller, 446 F.2d 65 (2d Cir. 1971), wherein the court noted that
the alleged incompetence of a woman in no way altered previously held religious views.
"I See Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C.
Cir.), cert. denied, 377 U.S. 978 (1964); Raleigh Fitkin-Paul Morgan Mem. Hosp. v.
Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964).
"' Note, Compulsory Medical Treatment: The State's Interest Re-evaluated, 51 MINN. L.
REv. 293, 301 (1966).
"' "Parents may be free to become martyrs themselves. But it does not follow that they are
intervention on behalf of incompetents and not extended to competent
Since the issue of mandatory lifesaving procedures for adults should
not be determined by extension of the doctrine of parenspatriae,it must
be resolved by the balancing of individual rights and the public interest.
The public interest argument proposes that the state has an interest in the
life of each member which is sufficient to outweigh the right of an
individual to refuse treatment. The basic constitutional question which must be
addressed and answered involves the balancing of these interests. There
are no rights which exist in se et per se, but only those which society
recognizes in the individual in the face of the coercive force of government:
Consent to surgery is required to protect the patient's right of personality
against unwanted touching, inviolability of the person being a cardinal right
vouchsafed to the individual by our social and legal philosophy. Under this
individualistic philosophy, the right of the individual to die of disease or
injury, at his election, is paramount to the social interest in preserving him
by compulsory surgery.151
What social benefit would be more valuable than the individual's freedom
of choice or right to determine what will happen to his body? The right to
self-determination in cases of nonconsent to treatment is even clearer than
that right as it was recognized in Roe v. Wade, 5 ' where the interest of the
state in potential human life gave it the power to prohibit abortion in the
second and third fetal trimesters, and thereby restricted the right of the
woman over her own body. In many cases where medical treatment is
refused, the interests of minor or unborn children are not involved. At
most, the social interest approach can be used to limit the right to refuse
treatment, but not to deny it entirely. Thus, among the public interests
to be considered, the most important is that of the competent adult patient
himself. The interests of the medical community, hospitals, minor and
unborn children, all must be balanced against the interests of competent
adults to arrive at an equitable resolution of this difficult legal question.
free, in identical circumstances, to make martyrs of their children before they have reached
the age of full and legal discretion when they can make that choice for themselves." 321 U.S.
158, 170 (1944).
1"See cases discussed in Cawley, CriminalLiability in FaithHealing, 39 MINN. L. REV. 48,
" Smith, Antecedent Grounds of Liability in the Practiceof Surgery, 14 ROCKY MT. L. REv.
233, 236 (1942).
152 410 U.S. 113 (1973).
The Omission- Commission Distinction
One of the most troubling distinctions maintained by some
commentators is that between passivity and active intervention. Some consider
this distinction to be "nonsense,"'' 3 but such a description is surely an
exaggeration. The moral situation of one who fails to take affirmative
action to keep himself alive is quite different from that of one who actively
seeks death, especially when the measures refused are artificial surgical
procedures. It is one thing for the state to impose an affirmative duty to
take certain minimum measures to stay alive. Such requirements are
reasonable and, in fact, are imposed by most safety laws. But it is another
theory of jurisprudence which would empower the state to impose on
citizens an affirmative legal duty to make use of highly developed medical
techniques in order to prolong life. What would be the limitations of such
a principle? Could such a duty be imposed by state officials, and, if it
could, what procedures could be mandated and which not? To kill oneself
is one thing. Not to avail oneself of surgery is quite another. In the latter
case there certainly is no active intent to die, as there is in cases of
suicide. 54 The mere presence in medical facilities of those persons who refuse
certain treatment attests to their strong desire to live, though they may
not wish to live if they must sacrifice deeply held moral and religious
principles. The tradition of sacrificing one's life for strongly held beliefs
dates back to Socrates, to St. Thomas More. To call this "suicide" is
certainly to lack moral sensitivity.
The distinction between active and passive acts must be maintained,
else there would be no way of distinguishing the public policy against
suicide from that of preventing interference by hospitals with the wishes
of their patients. The fact remains that suicide produces death by an
affirmative act of the individual, while the death of a patient who refuses
treatment is not directly willed, desired, or actively brought about in any
way. It is simply allowed to transpire. Perhaps this distinction is too subtle
for a pragmatic judiciary, but it does have some foundation in reality and
should not be ignored.
The Sanctity of Life
The term sanctity of life is used to express the traditional interest of
the state in protecting the life of its citizens in the face of suicide or other
foolish or irrational acts. The term is hopelessly vague and stems from the
Judeo-Christian influence on our legal system. Legal definitions of the
'' Calif. Comment, supra note 2, at 868.
' "In suicide there is a conscious purpose to bring about death . 9 UTAH L. REV. 161,
166 (1964); accord,26 MONT. L. REV. 95, 100 (1964); 44 TEXAS L. REV. 190,194 (1965); 18 VAND.
L. REV. 772, 775 (1965).
term are rather nebulous and are primarily contained in cases involving
suicide. It has been argued that protection of the individual's life is itself
a strong societal interest,'5 and that religious convictions cannot be
permitted to limit this interest. This concept has always been difficult to
express, and perhaps after Roe v. Wade it is no longer a viable legal
concept. At the very least, this whole concept is in a great state of flux. The
utilitarian view of life would simply emphasize the effect of the
individual's death upon others in society in terms of grief, shock, or despair,'5
while the moral point of view would stress the sacredness of human life and
its unique value to society. Authors as diverse as Aristotle and Aquinas
argued against all forms of self-destruction.'57 The present trend away from
criminal sanctions for suicide and attempted suicide does not stem from a
diminished respect for life, but from the realization that such sanctions are
unjust and do not serve as deterrents.' 8 But the positive duty of the state
to prevent suicide is difficult to express precisely because it is so
fundamental to any rational legal system.' 5 In Reynolds, the court stated in
dictum that it is within the power of government to prevent a religious
suicide.'60 Such a conclusion simply restates the problem of the
omissioncommission distinction.'"' The final argument against permitting suicide
is philosophical: once the principle of the sanctity of life is abandoned,
there can be no definition of the right to life save that which is dependent
on personal taste. The Roe v. Wade decision could be seen as simply one
more step down this road.'62
"ISee N. ST. JOHN-STEVAS, THE RIGHT TO LIFE 43 (1963); Calif. Comment, supra note 2; 33
FORDHAM L. REV. 513 (1965).
,' N. ST. JOHN-STEVAS, THE RIHT TO LIFE 64 (1963).
T. AQUINAS, SUMMA THEOLOGIA, Ia = lisa, q. 59, art. 3; ARISTOTLE, NICOMACHEAN ETHics
V. xi. 1-3; N. ST. JOHN-STEVAS, THE RIGHT TO LIFE 43 (1963).
"I At least one state still prohibits attempted suicide by statute. OKLA. STAT. ANN. tit. 21, §
Many commentators use an a minori ad majorem form of argument:
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.
Note, Compulsory Medical Treatment and the Free Exercise of Religion, 42 IND. L.J. 386,
401 (1967). The fact is that where death is simply and purely intended, the state will
intervene. Many decisions have upheld such state action. In cases involving compulsory medical
treatment, however, there is another fundamental issue involved, the patient's basic religious
,,o98 U.S. at 166. Yet, an affirmative act of suicide undertaken for religious reasons would
not be illegal in many states today.
" Physicians have been held privileged to render emergency aid to a patient unable to give
consent regardless of the subjective wishes of the patient. See Jackovach v. Yocom, 212 Iowa
914, 237 N.W. 444 (1931).
"I See N. ST. JOHN-STEVAS, THE RIGHT TO LIFE 64 (1963).
When compared with the problem of preventing death by compulsory
medical treatment of competent adults, the problem of suicide is
exacerbating. Although there are statutes prohibiting suicide, there have never
been any statutes prohibiting refusals of necessary medical techniques.
The problem becomes ever more acute for the law as medical science and
technology prolong the life span of individuals. Many commentators argue
that both pure suicide and refusals of treatment are species of suicide and
therefore the state has a serious interest in preventing both since every
citizen makes a valuable contribution to society. It is also argued that most
people who attempt suicide are temporarily incompetent and irrational,
and there is good reason not to allow such an individual freedom of
choice.'63 Adults refusing lifesaving medical procedures, however, are
generally not incompetent or irrational. Suicide requires a specific, intentional
act rather than a passive refusal of treatment."' Yet, if it is clear that the
patient will die without treatment, then the problem of finding a state
interest has been reached; only then does the balancing process begin.6 5
In any case, the analogy of a refusal of medical treatment to suicide has
not proven convincing. As one commentator noted, where there is no
statute making attempted suicide illegal, "the refusal of necessary medical aid
• . . must be conceded to be lawful."'6 6
Rather than seeking a solution to the presence or absence of an
antisuicide statute, it is better to look to such decisions as Prince, where the
Court reiterated its position on the balance between religious freedom and
public welfare.6 7 As Justice Murphy stated, the state should not interfere
with religious activities unless the threat to the public is "grave,
immediate, and substantial."6' 8 Thus, in the case of a patient refusing medical aid,
there is no way to avoid the balancing process and the ultimate conclusion
that the patient's beliefs should be respected.
Another way of stating the issue is to inquire whether the individual
has a constitutional right to die. Like all individual rights, the right to die
would have to be limited if the patient's refusal of aid was injurious to
society or to a third person owed a duty by the patient, of if the patient
a See generally L. DUBUN, SUICIDE 144 (1963); PERKINS, CRIMINAL LAw 67-68 (1957).
"' In some cases where medical treatment is refused, the specific intent required for suicide
is negated by the fact that the patient voluntarily came to the hospital seeking aid. See 26
MoNT. L. REV. 95, 99-100 (1965).
" When it is not certain that the patient will die, or where the necessary treatment involves
a high degree of risk or is of questionable medical value, the decision should always be left to
the patient. In every such case, of course, it should be clear that the patient is competent.
Cawley, Criminal Liability in Faith Healing, 39 MINN. L. REV. 48, 68-69 (1954), concludes
that a religiously motivated refusal of medical aid would not constitute attempted suicide.
" Id. at 68.
", 321 U.S. at 158.
Id. at 175 (Murphy, J., dissenting).
was incompetent. The issue must be approached by attempting to
establish an injury to others that would outweigh an accepted common law
right. Moreover, additional arguments for a qualified right to die or be left
alone can be based on the ninth amendment and the famous comment of
Justice Goldberg in his concurring opinion in Griswold v. Connecticut:6'
The language and history of the Ninth Amendment reveal that the Framers
of the Constitution believed that there are additional fundamental rights,
protected from governmental infringement, which exist alongside those
fundamental rights specifically mentioned in the first eight amendments.' 0
The right to a natural death with dignity may fall within the domain of
this amendment. There must be evidence that the patient is competent to
make such a decision, that no emergency exists, and that the patient has
no legal duties to third parties. Then, under circumstances which ensure
that an impetuous judgment has not been made, the wishes of the patient
should be respected. Such would not amount to legal approval of
euthanasia or mercy killing-it would only establish the right to refuse medical
assistance in a present crisis or for a future one. Viewed thusly, the right
to die is included in the right to privacy."' In the words of one
[I]t will be submitted that the burden of proof is upon the state to establish
that the individual does not have the right involved under the Ninth
Amendment, and that the burden of proof is not upon the individual to establish
his right under the Amendment. In other words, the individual does have the
right involved under the Ninth Amendment unless the state can prove that
he does not."'
It is difficult in this area of evolving medical procedures and the law
to come to any firm answer to the original question posed by this Article:
Can the state, through its police power, force an objecting, competent
adult, to accept lifesaving medical aid? The answer must be found through
a balancing process in order to safeguard both the important interests of
the state and the fundamental right of religion, the right of
selfdetermination, and the conscience of the individual. Thus, it is evident
that, at most, the individual has only a qualified right to refuse treatment
in the light of his obligations to third parties, to the medical profession (if
he voluntarily sought out their aid) and to himself. Opponents of this right
rely upon the rather vague notion of the "importance of the individual's
life to the welfare of society."'7 Advocates of this right often cite it as
"incorporated in the constitutional rights of freedom of religion and
privacy.""' The reality of the matter is that, at least to date, there seems to
be no clearly accepted social interest which will justify complete denial of
a competent adult's right to refuse lifesaving medical help. It is, of course,
reasonable to impose basic limits on the exercise of this right. Until an
overriding social interest is clearly shown, a judge .must either skillfully
find injury to third persons or simply respect the wishes of the competent
In other words free exercise is not only a "fundamental" constitutional
right, but the state has the burden of pleading and proving a compelling
state interest when this right is sincerely and objectively invoked. It is
submitted that the state must and should fail in this endeavor in a case
involving refusal of medical services by a competent adult, unless children
or other dependents are directly involved. Enough is known of child
psychology to allow the state to establish the trauma of "this most ultimate
of voluntary abandonments" and to thereby meet its burden. Other than
this unique case, no interest of society seems so great as to overcome the
right to religiously motivated refusal of medical aid by competent adults.
The constitutional issues must be squarely faced by the Supreme Court,
which, freed from the emotional atmosphere of an emergency room, can
assess the crucial questions raised in this ever growing area of law.
,7Calif. Comment, supra note 2, at 862.
,T,Note, Compulsory Medical Treatment: The State's Interest Re-evaluated, 51 MINN. L.
REv. 293 (1966).