Adult Patient Compelled to Take Blood Transfusion Contrary to Religious Belief
Adult Patient Compelled to Take Blood Transfusion Contrar y to Religious Belief
0 This Recent Decisions is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized administrator of St. John's Law Scholarship Repository. For more information , please contact
Part of the Constitutional Law Commons; and the Ethics in Religion Commons
lacked jurisdiction. In Kantrowitz the
appellate division, for the first time, allowed
an examination into the power of a foreign
court to grant a divorce despite the fact that
both parties appeared and submitted
themselves to its jurisdiction. Consequently,
Kantrowitz appears to follow the trend
established in Wood and continued in
The underlying reasons for the failure of
the appellate courts to question the
plaintiff's domicile may be social and pragmatic
ones. There are approximately 250,00031
New Yorkers who have obtained such
divorces. Many have remarried and raised
children in subsequent marriages. To
declare the foreign divorces void would render
the subsequent "marriages" bigamous
unions.3 2 Furthermore, the rights of the parties
under the laws of descent and distribution
would be affected. 33
31 N.Y. Journal-American, Aug. 15, 1963, p. 3,
-'See Williams v. North Carolina (1I), supra
33 See N.Y. DECED. EST. LAW §§ 18, 83.
While the appellate courts have granted
comity to the bilateral Mexican decree, the
lower courts34 have recently tended to apply
strict legal theory by requiring bona fide
domicile as a condition to recognizing the
foreign decree. The result is a state of
confusion wherein reliance cannot be placed
upon even the bilateral decree. An
appellate confrontation with the question of
whether domicile is the sine qua non of
recognition would be desirable. Such a
confrontation appears to be the proper means
by which the prevalent confusion in the area
could be clarified, since the problem is
essentially a judicial one. An alternative
means of clarifying the necessity of domicile
as a condition to recognizing foreign
decrees may be by legislative action, though
this method is unlikely in view of the
judicial character of the problem. Nevertheless,
because of the many social interests
involved, the requirement of domicile is
deserving of some definitive interpretation.
4 Rosenstiel v. Rosenstiel, supra note 17; Wood
v. Wood, supra note 17.
Adult Patient Compelled to Take
Blood Transfusion Contrary
to Religious Belief
The petitioner, a Jehovah's Witness,
refused a blood transfusion that was necessary
to save her life since the consumption of
human blood was violative of her biblical
teachings. The hospital obtained an order
authorizing the transfusion from Judge
Wright of the United States Court of
Appeals for the District of Columbia,1 after
having failed in its attempt in the district
court on the same day. When the petitioner
requested a rehearing, the Court, in a five to
four decision, ordered the petition denied
and held that the question had become moot
since the petitioner had received the
transfusion and had subsequently recovered.
Ap1 Application of the President and Directors of
Georgetown College, 331 F.2d 1000 (D.C. Cir.
plication of the President and Directors of
Georgetown College (D.C. Cir. Feb. 3,
Courts have often been called upon to
resolve conflicts between the constitutional
guarantee of religious freedom3 and the
power of the state to protect the general
welfare of its citizenry. In Reynolds v.
United States,' a conviction for bigamy was
upheld despite the fact that the illegal
marriage was encouraged by the defendant's
religious beliefs. As overt acts may be
prohibited for the protection of society, the
state may also require affirmative acts which
may be opposed to certain religious beliefs.
Thus, in City of Manchester v. Leiby, ' an
ordinance required anyone who wanted to
distribute literature in a public place to
wear an identification badge which was
contrary to the tenets of the petitioner's
religion. The court upheld the ordinance as
being a valid and constitutional exercise of
police power. In the interest of general
welfare, therefore, the state may regulate the
conduct of its citizens, even when contrary
to an individual's religious beliefs, 6 but such
restriction can be justified "only to prevent
grave and immediate danger to interests
2 This case is not officially reported, but is
available as an appendix to the petition for certiorari
to the United States Supreme Court, printed and
distributed by The Watchtower Bible and Tract
Society of New York. The petition was denied on
June 15, 1964.
3U.S. CONST. amend. 1.
4 98 U.S. 145 (1878).
117 F.2d 661 (1st Cir.), cert. denied, 313 U.S.
f The Supreme Court of the United States has
held that freedom of religion involves both
"freedom to believe and freedom to act. The first is
absolute, but, in the nature of things, the second
cannot be. Conduct remains subject to regulation
for the protection of society." Cantwell v.
Connecticut, 310 U.S. 296, 303-04 (1940).
which the state may lawfully protect.' ' 7
In addition to guarding the welfare of
society in general, the state, as parens
patriae, specifically protects the welfare of
children. For the protection of the health
and welfare of children it may pass laws
which cannot be abrogated by a parent's
religious beliefs.8 In addition, the state may
consider the religious beliefs of a parent
when awarding custody of a child."
The authority of the state to compel
medical treatment emanates from two primary
sources: the state as parens patriae and as
protector of the general welfare. When
considering the medical welfare of minors, "the
state has the power to take permanent or
temporary custody of children under its
powers of parens patriae for the purpose of
seeing that they receive needed medical
treatment.""' Courts may appoint special
guardians for children who need blood
transfusions in order to live, and the
statutes which sanction this practice are not
violative of the parents' rights guaranteed
by both the first and fourteenth
amendments.' However, where a mother,
other7West Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624, 639 (1943).
8 Prince v. Massachusetts, 321 U.S. 158,
rehearing denied, 321 U.S. 804 (1944).
9 Courts may consider religious beliefs as
preventing proper medical care for the child. E.g.,
Battaglia v. Battaglia, 9 Misc. 2d 1067, 172 N.Y.S.2d
361 (Sup. Ct. 1958); Derr v. Derr, 148 Pa. Super.
511, 25 A.2d 769 (1942). For a comprehensive
discussion of religion as an element in
determining the custody of children, see Annot., 66
A.L.R.2d 1410 (1959).
10 Note, Medical Aid for Children without
Parental Consent, 13 Wyo. L.J. 88, 93 (1958); see also
39 AM. JUR. Parentand Child § 46 (1942).
11 E.g., People ex rel. Wallace v. Labrenz, 411 111.
618, 104 N.E.2d 769, cert. denied, 344 U.S. 824
(1952); Morrison v. State, 252 S.W.2d 97 (Mo.
App. 1952); State v. Perricone, 37 N.J. 463, 181
A.2d 751 (1962).
wise a suitable parent, objected to an
operation for her child because she thought it
might result in his death, a court of equity
refused to take custody of the latter.' 2 In
the recent New Jersey case of Anderson v.
Fitkin Memorial Hosp.,13 a pregnant woman
was compelled to take a blood transfusion
and, in addition, a special guardian was
appointed for the protection of the unborn
child. Where the medical treatment is not a
necessity, but will correct a condition
affecting the child's psychological well-being as
well as his future welfare, the court may
leave the decision to the child with proper
guidance and without parental
interference ' 4
Aside from the protection of children, the
state may require medical treatment on the
basis of its general welfare power. In the
case of Jacobson v. Massachusetts,'5it was
held that individuals may be compelled to
take smallpox vaccinations although they
believed that spiritual and not medical
means were required under God's
command. It has since been determined that
compulsory vaccination may be made a
prerequisite to admission into public schools,
whether or not the regulation is passed
during an epidemic.' 6 A requirement that each
12"In re Hudson, 13 Wash. 2d 674, 126 P.2d 765
N.Y. Times, June 18, 1964, p. 1, col. 4.
'4 In re Seiferth, 127 N.Y.S.2d 63 (Child. Ct.
1, 197 U.S. 11 (1904).
16 During an epidemic: e.g., Vennegut v. Baun,
188 N.E. 677 (Ind. 1934); City of New Braunfels
v. Waldschmidt, 109 Tex. 302, 207 S.W. 303
(1918). No epidemic existing: e.g., Sadlock v.
Board of Educ., 137 N.J.L. 85, 58 A.2d 218
(1948); State ex rel. Dunham v. Board of Educ.,
154 Ohio St. 469, 96 N.E.2d 413, cert. denied,
341 U.S. 915 (1951).
student of a state university have an x-ray
examination for the detection of tubercular
infection has been held valid.t 7 Likewise,
compulsory hospitalization and isolation of
tubercular patients has been upheld on the
ground that the resulting health advantages
to the public outweigh the restriction on
freedom of religion.' In regard to blood
transfusions for adult patients, however, the
New York Supreme Court has recently held
that there is no basis for compelling such
treatment if the adult is competent and "the
individual who is the subject of that medical
decision has the final say." 19
In the instant case, Judge Wright viewed
the issue as justiciable and his act of
issuing the original order as authorized, since
he felt that a refusal to judicially determine
the question would result in a legal vacuum.
The learned judge believed his order was
sanctioned by statutory law in that it was
decreed pursuant to the power of an
appellate judge to issue an injunction or order
"appropriate to preserve the status quo.' -0
He argued that by preserving the patient's
life the order prevented the issue from
becoming moot because of the death of the
patient. However, Judge Washington, in his
concurring opinion, stated that the question
became moot upon the expiration of the
order which occurred when the patient
The dissenting judges held that the order
issued by an individual judge was
unauthor17 State ex rel. Holcomb v. Armstrong, 39 Wash.
2d 860, 239 P.2d 545 (1952).
Is Moore v. Draper, 57 So. 2d 648 (Fla. 1952).
11,Meadowbrook Hosp. v. Dilgard (N.Y.
Supreme Court, Nassau County, Oct. 1, 1962); this
case is not officially reported, but is available as
an appendix to the petition for rehearing in the
20 FED. R. Ctv. P. 62(g).
izcd since by statute-' such a determination
could be made only by a separate division
consisting of three judges, or by the court
en banc. They contended that the provisions
authorizing the issuance of necessary or
appropriate writs2 2 and declaratory
judgments- 3 did not justify the order, because
they referred to the powers of courts and
not of individual judges. Furthermore,
they maintained that the original action
presented no justiciable controversy, since "the
affirmative enforcement of a right growing
out of a possible moral duty of the hospital
toward a patient does not seem to meet the
standards of justiciability. ' 2 4 The argument
that the status quo could be maintained only
by issuing the order was refuted by Judge
Miller, who stated that it
completely changed the status quo ante by
granting fully and finally all of the relief
sought, thus disposing of the matter on its
merits. This fact is confirmed, perhaps
unwittingly, by the majority's order denying
the petition for rehearing en banc, which
implicitly relies on mootness. 25
In the past, state interference with
freedom of religion had been sustained because
it was necessary to protect the public from
communicable diseases or protect the
welfare of children, who were not mature
enough to make critical determinations.
This decision, however, appears to provide
judicial precedent for compelling blood
transfusions without reference to the general
welfare or the right of the state as parens
patriae.Previously, courts had implied that
adults could not be restricted in their choice
2128 U.S.C. § 46(b) (1958).
22 28 U.S.C.§ 1651(a) (1958).
2 28 U.S.C. § 2201 (1958).
24 Application of the President and Directors of
Georgetown College (D.C. Cir. Feb. 3, 1964).
concerning medical treatment unless society
was endangered. The Supreme Court of the
United States has upheld a statute for the
protection of the health of children by
Parents may be free to become martyrs
themselves. But it does not follow they are
free, in identical circumstances, to make
martyrs of their children before they have
reached the age of full and legal discretion
swehlveens.t2h1ey can make that choice for
themEven in the Anderson 2 case, the
courtordered blood transfusion to a pregnant
woman was justified specifically by the
state's power as parenspatriae.In addition,
two well-known medical authorities
expounded the doctrine that a power based
solely on parens patriae cannot be used to
restrict adults. They stated, "a patient has
the right to withhold his consent to
lifesaving treatment. ' 28 However, the reasoning of
the instant case is in opposition to this
premise, and it appears that in the District
of Columbia a patient is no longer free to
be a martyr himself.
The mootness argument, heavily relied
on by the majority in the principal case,
provides a convenient expedient for the
courts to avoid the issues involved. 21 Once
a court-ordered medical treatment is
admin(Continued on page 239)
26Prince v. Massachusetts, supra note 8, at 170.
27 Anderson v. Fitkin Memorial Hosp., N.Y.
Times, June 18, 1964, p. 1, col. 4.
25 STETLER & MORITZ, DOCTOR AND PATIENT AND
THE LAW 141 (4th ed. 1962). C. Joseph Stetler is
General Counsel and Director of the Legal and
Socio-Economic Division of the American
Medical Association; Alan R. Moritz is the Director of
the Institute of Pathology at Western Reserve
29 But it has been stated that where illegal activity
is voluntarily discontinued, the courts may
nevertheless issue an injunction to prevent its