Adult's Right to Resist Blood Transfusions: A View through John F. Kennedy Memorial Hospital v. Heston
Adult's Right to Resist Blood Transfusions: A View through John F. Kennedy Memorial Hospital v. Heston
James F. Hoover
AN ADULTS RIGHT TO RESIST BLOOD TRANSFUSIONS: A VIEW
THROUGH JOHN F. KENNEDY MEMORIAL HOSPITAL V. HESTON
May an adult Jehovah's Witness be compelled against his religious beliefs
to submit to a blood transfusion considered medically necessary to save his life?
The case decisions involving administration of blood to Jehovah's Witnesses have
struggled to resolve complex questions involving legal, medical and religious
issues into a simple answer.
Jehovah's Witnesses do not object to receiving medical aid or undergoing
surgery. They take full advantage of the technology offered by the medical
sciences with the single exception of blood transfusions which they decline for
religious reasons.' A fundamental principle adhered to by the Jehovah's
Witnesses is that the receiving of a blood transfusion is a serious violation of the law
of God for which transgressors will be called upon by God to account for and
be punished for their sins.2
A conflict of interests ultimately resulting in litigation arises when members
of the medical profession deem it necessary to transfuse blood to a Jehovah's
Witness for the purpose of saving his life, and the Jehovah's Witness refuses to
consent. At this point, doctors, hospitals, and even spouses have sought court
orders authorizing the administration of a blood transfusion.
Parents of children needing blood transfusions have refused to give the
necessary consent. The courts have consistently authorized the transfusions' based
on the grounds that the parents, despite their religious objections, have the duty,
evolving from the "law of nature, as well as common law"4 to provide adequate
medical treatment for the well-being of their child. The Supreme Court observed
in Princev. Massachusetts5 that:
[t]he right to practice religion freely does not include liberty to expose the
. . . child to ... ill health or death .... 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 when they can make that choice for themselves.0
If medical science requires a blood transfusion to preserve the life of a child,
the child may not be deprived of his right to live because of his parents' religious
objections.7 The state has the duty to ensure that the helpless child's right to
survive is protected until the child is able to care for himself.8
The court decisions concerning orders sought to administer blood to adult
Jehovah's Witnesses have reached varied conclusions. The outcome of a
decision has depended upon the particular factual circumstances of the case,
each court giving different weight to different considerations.9 These cases fall
into two general categories: those involving parents of minor children, and those
which do not.
Every court which has faced a parent of a minor refusing to accept a
lifesaving transfusion has ordered the transfusion despite the parents' objections.
Judge Skelly Wright in Application of President and Directors of
Georgetown Co." granted an emergency writ authorizing the administration of blood to
a Jehovah's Witness to preserve her status quo pending a hearing on the issues
of the controversy. In granting the emergency writ Judge Wright considered,
inter alia, the question of the hospital's potential liability1 and the welfare of
a seven-month-old child who would be abandoned by his mother if she died-the
"most ultimate of voluntary abandonment."' 2
The legal reasoning in Georgetown convinced a New York judge,
approached by a husband seeking a court order authorizing a blood transfusion for
his wife, a mother of six, to sign the order in Powell v. Columbian Presbyterian
Medical Center." In United States v. George, 4 a federal district court also relied
upon the rationale of Georgetown in ordering blood to be administered to a
father of four children. Emphasis was given by the federal court to the doctor's
interest in transfusing the blood. 5
The Supreme Court of New Jersey sustained an order compelling a blood
transfusion in Raleigh Fitkin-PaulMorgan Mem. Hosp. v. Anderson,8 where a
woman, 32 weeks pregnant, had refused to consent. The court ordered the
transfusion "because the welfare of the child and the mother are so intertwined and
inseparable that it would be impracticable to attempt to distinguish between
them .. .""
On the other hand, in the decisions not involving parents of minors, the
courts have been reluctant to order a transfusion. A New York court in Matter
of Erickson v. Dilgard8" declined "to make any order directing that blood be
7 Battaglia v. Battaglia, 9 Misc. 2d 1067, 172 N.Y.S.2d 361 (1958).
8 Id.; State v. Perricone, 37 N.J. 463, 473-74, 181 A.2d 751, 757-58, cert. denied, 371
U.S. 890 (1962).
9 For example, United States v. George, 239 F. Supp. 75
2 (D. Conn. 1965
) gave great
consideration to the interest of the doctor in giving the transfusion, an interest not considered
at all in In re Estate of Brooks 32 Ill.2d 361, 205 N.E.2d 435 (1965).
10 441 F.2d 1000 (D.C. Cir. 1964), rehearing en banc denied, 331 F.2d 1010 (D.C. Cir.
1964), cert. denied, 377 U.S. 978 (1964).
11 Id. at 1009.
12 Id. at 1008.
13 49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965).
14 239 F. Supp. 752, 753-54 (D. Conn. 1965).
15 Id. at 754.
16 42 N.J. 421, 201 A.2d 5
) cert. denied, 377 U.S. 985 (1964).
17 Id. at 423, 201 A.2d at 538.
18 44 Misc. 2d 27, 252 N.Y.S.2d 705 (1962).
administered" 19 to an adult. The Illinois Supreme Court, in In re Estate of
Brooks,2" held that to force an adult Jehovah's Witness to accept a blood
transfusion against his religious objections was an interference with his basic
The most recent court to be approached with an application for an order to
force an adult Jehovah's Witness without children to receive blood was the
Supreme Court of New Jersey. The New Jersey court in John F. Kennedy
Memorial Hospital v. Heston22 held, contrary to Erickson and Brooks, that an
adult may be compelled to submit to a blood transfusion necessary to save his life
notwithstanding his religious tenets which forbid such transfusions.
Heston passed over Erickson as an exception to case law23 and specifically
rejected the result reached in Brooks because the Illinois court had failed to
expressly consider the state's interest in sustaining life and the interests of the
medical profession in caring for its patients. 2" The opinion of the Supreme Court
of New Jersey must be critically analyzed to determine whether or not it properly
resolved the problems facing the judiciary in deciding whether or not to compel
an adult Jehovah's Witness, without dependent children, to receive a blood
II. The Facts of Heston
Defendant, Delores Heston, age 22 and unmarried, was admitted to plaintiff
hospital having been seriously injured in an automobile accident. The doctors'
prognosis was that Miss Heston would expire unless an operation was performed,
necessitating the administration of whole blood. Miss Heston and her mother,
defendant Jane Heston, were both alerted to the situation, but neither would
consent to the blood transfusion because of their religious beliefs as Jehovah's
Witnesses. Jane Heston on her daughter's behalf executed a release for the
hospital and medical staff from any liability arising from the defendants' desire
not to have any blood transfused.
Subsequently, plaintiff applied to the superior court law division for an
order appointing a temporary guardian to Miss Heston with authority to consent
to the blood transfusion needed to preserve her life. The order was granted and
blood was administered during surgery saving Miss Heston's life.
Thereafter, defendants moved to vacate the order contending, inter alia, that
Miss Heston's religious freedom as guaranteed by the first amendment had been
violated. The trial court declined to vacate and on appeal the Supreme Court
of New Jersey affirmed2 5 and held that an adult may be compelled to submit to
19 Id. at 28, 252 N.Y.S.2d at 706.
20 32 Ill.2d 361, 205 N.E.2d 435 (1965).
21 Id. at 374, 205 N.E.2d at 443.
22 58 N.J. 576, 279 A.2d 670 (1971).
23 Id. at 583, 279 A.2d at 673.
24 Id. at 584, 279 A.2d at 674.
25 The controversy became moot at the giving of the transfusion. The Supreme Court of
New Jersey heard the appeal because the public importance of the issue warranted a decision.
Id. at 579, 279 A.2d at 671; State v. Perricone, 37 N.J. 463, 469, 181 A.2d 751, 755, cert.
denied, 371 U.S. 890 (1962); In re Estate of Brooks, 32 Il1.2d 361, 364, 205 N.E.2d 435,
a blood transfusion necessary to save his life notwithstanding his religious tenets
which forbid such a transfusion."
III. The Suicide Analogy to Resisting Blood Transfusions
Chief Justice Weintraub, speaking for the New Jersey court, stated that there
was no constitutional right to choose to die as evidenced by the fact that
attempted suicide was a crime at common law27 and had remained so under New
Jersey law.2" However, contrary to the law of New Jersey, attempted suicide in
most jurisdictions is no longer a crime. Only four states2" presently prohibit it
and England, where the crime originated, has abolished it.20 Further, the use
of the crime of attempted suicide as a basis for compelling blood transfusions to
Jehovah's Witnesses has been challenged on two grounds, first that an act of
misthat the requisite intent to attempt suicide is lacking. 2
feasance should be distinguished from the nonfeasance of inaction"' and, second,
The concepts of misfeasance and nonfeasance are primarily used in the
areas of tort 2 and criminal 4 law. No liability is imposed for nonfeasance unless
there was a duty to take affirmative action. The ensuing argument is that refusal
of a blood transfusion is not attempted suicide since the moral law does not impose
an affirmative duty to use technical medical surgery to prolong one's existence."
Additional resistance to the suicide analogy has been made through the
proposition that a Jehovah's Witness, in passively allowing death by refusing the
transfusion, lacks the intent to commit suicide.2 " Death is not the objective of the
refusal but an unwanted consequence.3 ' Any intention to seek death would be
negated by the fact that the patient voluntarily came to the hospital seeking aid.
A reference by the defendants in Heston to the difference between actively
seeking death and passively submitting to it"8 was disregarded by the court as
being "merely verbal," saying "[I]f the State may interrupt one mode of
selfdestruction, it may with equal authority interfere with the other."39
The conclusion drawn by the court in Heston is in line with Georgetown in
which Judge Wright's opinion suggested that a person may not be allowed to
refuse a lifesaving transfusion in a jurisdiction where attempted suicide was
illegal.40 He felt that "[o]nly quibbles about the distinction between misfeasance
and non-feasance, or the specific intent necessary to be guilty of attempted suicide,
could be raised against this ... conclusion." 4'1
A position contrary to that taken in Heston and Georgetown was expressed
in Erickson. Here the New York court did not accept the argument "that as a
practical matter the patient's decision not to accept blood is just about the taking
of his own life." 4 2 The New York court also disagreed with the argument "that
it is in violation of the Penal Law to take one's own life."4 If attempted suicide
is not unlawful, Georgetown maintained that "the refusal of necessary medical
aid... whether equal to or less than attempted suicide, must be conceded to be
Even assuming that refusal of a blood transfusion is tantamount to attempted
suicide, the right of a Jehovah's Witness to choose death over a transfusion may
nevertheless be maintained through proper consideration of the three
classifications of suicide:" justifiable, excusable, and culpable, the first two classes being
clearly defensible. A father losing his life by dashing in front of a train to save
his child commits justifiable suicide. Yet, this act of self-killing would not be
prosecuted under a law against suicide for it doesn't fall into the traditional
category of culpable suicide. This is true even though the father took affirmative
action when he knew death was certain to follow. Quite possibly society not only
would justify his death but also praise him for his heroic deed. The question
is whether or not a Jehovah's Witness may justifiably save his spiritual being.
An eloquent summary of the difficulty in applying the suicide analogy was
given by Judge Wright in Georgetown when he stated:
The Gordian knot of this suicide question may be cut by the single fact
that Mrs. Jones did not want to die. Her voluntary presence in the hospital
as a patient seeking medical help testified to this. Death, to Mrs. Jones, was
not a religiously commanded goal, but an unwanted side effect of a religious
scruple... Mrs. Jones wanted to live. 48
IV. The Limitations on Religious Freedom
The New Jersey court went on to enunciate that the first amendment's free
39 58 N.J. at 581-82, 279 A.2d at 673.
40 331 F.2d at 1008.
41 Id. at 1009; but see In re Estate of Brooks, 32 Ill.2d 361, 205 N.E.2d 435 (1965), in
which affirmative action is distinguished from passive "action" Id. at 368, 373, 205 N.E.2d at
42 44 Misc. 2d at 28, 252 N.Y.S.2d at 706.
44 331 F.2d at 1008.
45 R. PErKINS, CRImrNAL LAW 82 (2d ed. 1969). Justifiable suicide is a heroic act of
selfsacrifice. Excusable suicide is an accidental self-killing.
46 331 F.2d at 1009.
exercise of religion clause did not establish a constitutional right to refuse a blood
transfusion." In Cantwell v. Connecticut" the Supreme Court held, per Justice
Roberts, that the first amendment right of the free exercise of religion "embraces
two concepts---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 protection of society."' Thus, while the state "cannot interfere with
mere religious belief and opinions [it] may with practices."5' To hold otherwise
would place religious beliefs in a position superior to the state's sovereign
authority, making each citizen an independent lawmaker.5 It would permit under the
sanction of individual liberty any religious practice, however immoral or
dangerous to others, if based on sincere religious beliefs.5" Though it is readily seen that
religion may not be used as a legal instrumentality for justifying unreasonable
infringements on public interests, it is not clearly delineated as to when the
government may intervene.
The Supreme Court in Reynolds v. United States5" relied on Thomas
Jefferson's Act for the Establishment of Religious Freedom in Virginia54 in
developing a standard defining the extent of religious freedom. The Court ruled that
the government should only interfere "when [religious] principles break out into
overt acts against peace and good order."5 The Court clarified this guideline in
declaring that the state could only "reach actions which were in violation of social
duties or subversive of good order." (Emphasis added.)5 6
This "peace and good order" test still prevails under various forms as the
legal justification for limiting external manifestation of religious beliefs. Variant
examples have been: "paramount necessity" to protect the community in
selfdefense;5" "paramount societal interest" ;58 "[o]nly the gravest abuses,
endangering paramount interests";5" "clear and present danger,"' 0 and, "compelling state
interest."'" These phrases reiterate the value that Reynolds placed on the free
exercise of religion.
47 58 N.J. at 580, 279 A.2d at 672.
48 310 U.S. 296 (1940).
49 Id. at 303.
50 Reynolds v.United States, 98 U.S. 145, 166 (1878).
51 Id. at 167.
52 Ford, supra note 31, at 224.
53 98 U.S. 145 (1878).
54 The court quoted at length from Thomas Jefferson's preamble to the Act for the
Establishment of Religious Freedom in Virginia:
[ihat to suffer the civil magistrate to entrude his powers into the field of opinion,
and to restrain the profession or propagation of principles or supposition of their ill
tendency, is a dangerous fallacy which at once destroys all religious liberty, "it is
declared," that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against peace and good
order. In these two sentences is found the true distinction between what properly
belong to the church and what to the State. Id. at 163.
56 Id. at 164.
57 Jacobson v.Massachusetts, 197 U.S. 11, 27 (1905).
58 McBride v.McCorkle,44 N.J. Super. 468, 479, 130 A.2d 881, 886 (1957).
59 Sherbert v. Verner, 374 U.S. 398, 406 (1963).
60 Prince v. Massachusetts, 321 U.S. 158, 167 (1944); In re Estate of Brooks, 32 Ill.2d
361, 373, 205 N.E.2d 435, 44
61 Sherbert v. Verner, 374 U.S. 398, 403 (1963); Winters v. Miller, 306 F. Supp. 1158,
; John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 584, 279
A.2d 670, 674 (1971).
The Supreme Court of New Jersey in its decision thought "compelling state
interest" to be the appropriate test while specifically rejecting the "clear and
present danger" test utilized in Brooks. 2 This latter standard has been criticized
as being a substitute for the analysis and balancing of interests required to reach
a rational and intelligent decision.63 The New Jersey court, however, conceded
that it couldn't be said with confidence that Brooks, which allowed an adult
Witness to refuse a lifesaving blood transfusion, would have had a
different outcome using the "compelling state interest" criterion, as the Illinois
court had not expressly considered what the New Jersey court felt to be
"compelling state interests," namely, the state's interest in sustaining life and the
interests of the hospital and medical personnel under the circumstances. 4
"Compelling state interest," could be more properly called "compelling public interest,"
as it was in a New York federal court decision, 5 correctly putting the emphasis
on the adjective "public" to hopefully eliminate the possibility of the state being
arbitrary and capricious in determining the essential nature of a "compelling
Whatever "test" is applied the premise is that "[t]here are manifold restraints
to which every person is necessarily subject for the common good. On any other
basis organized society could not exist with safety to its members." 6 The
justification for state interference with religious practice is predicated on the urgent
consideration of public welfare-the protection and promotion of the health, safety
and morals of its citizens.6" The Supreme Court has asserted that "liberty itself,
the greatest of all rights . . . is only freedom from restraint under conditions
essential to the equal enjoyment of the same rights by others."6
Witness then is free to practice his religious tenets as long as he does not interfere
with or deny equally important rights of others.
In balancing the rights of society, as enforced by the state, against the
individual's freedom to exercise religious beliefs, the courts have upheld statutes
against polygamy,6" snake handling,7 and enforced compulsory vaccinations,7 1
fluoridation of water,7 2 and the wearing of motorcycle helmets."' The rationale of
these decisions has been that the police power of the state was properly imposed
in light of public health, welfare or morals. The Supreme Court of Illinois made
the analysis in Brooks that "[t]hose cases which have sustained governmental
action as against the challenge that it violated the religious guarantees of the
First Amendment have found the proscribed practice to be immediately
deleterious to some phase of public welfare, health or morality." 7'4
The refusal of a blood transfusion, though necessary to save an individual's
life, generally does not constitute an immediate and direct threat to the safety,
well-being or health of others.7 ' Nevertheless, the Supreme Court of New Jersey,
seemingly going beyond the public defense concept in finding that the state had
a "compelling interest" in sustaining life itself, authorized force directed at
protection of an individual from his own inaction.
The prevailing theory prior to Heston was that intervention of religious
practice was warranted only to protect society. Illustrative are the vaccination
cases7 1 which have compelled medical treatment against communicable disease.
If the health of society becomes endangered through the indifference of an
individual to his own health, the state may intervene. The objective is protection of
society not the individual. Congress has specifically decided that an individual
properly quarantined from the public may not be compelled to be treated for
communicable disease. Whether a religiously motivated refusal of a necessary
blood transfusion is a constitutionally protected right will turn on whether there
is a valid public interest in saving the individual's life.
The state's "compelling interest" in an individual's life has been the subject
matter of court decisions involving statutes requiring motorcycle riders to wear
helmets. The statutes have been held constitutional on the grounds that they
bear a reasonable and substantial relationship to public safety, health and
welfare.7 Two New Jersey cases have dealt with such a statute. A defendant's
argument that the purpose of the legislation was to protect the individual
motorcyclist and not the general public was rejected in State v. Krammes9 where it was
held that the statute bore a "real and substantial relationship to highway safety""
in general. This decision reaffirmed State v. Mele8l in which the New Jersey
court reasoned that the statute was clearly distinguishable from a hypothetical
statute requiring automobile drivers to wear seat belts, a statute which would be
"clearly . . . directed only at the individual and not at the general public. 8 s2
168, 166 S.E.2d 49 (1969); State v. Odegaard, 165 N.W.2d 677
; State v.
Krammes, 105 N.J. Super. 345, 252 A.2d 223 (App. Div. 1969), cert. denied, 54 N.J. 257,
253 A.2d 800 (1969); State v. Mele, 103 N.J. Super. 353, 247 A.2d 176 (Hudson County Ct.
74 32 Ill.2d at 372, 205 N.E.2d at 441-42.
75 The state under the doctrine of parens patriae may order blood to be administered to a
child over the objections of the parent, supra note 3, or to the parents of a child. Application of
President and Directors of Georgetown Co., 331 F.2d 1000, 1008 (D.C. Cir. 1964); see Winters
v. Miller, 306 F. Supp. 1158, 11
67 (E.D.N.Y. 1969
76 Cases cited note 71 supra.
77 D.C. CODE ANN § 6-119i (1939).
78 Cases cited note 73 supra.
79 105 N.J. Super. 345, 252 A.2d 223, (App. Div. 1969), cert. denied, 54 N.J. 257, 254
A.2d 800 (1969).
81 103 N.J. Super. 353, 247 A.2d 176 (Hudson County Ct. 1968).
82 Id. at 355-56, 247 A.2d at 178.
Krammes and Mele would appear to adhere to the proposition that there must
be an interference with the general public welfare to justify state intervention with
an individual's rights.
A North Dakota Supreme Court decision, State v. Odegaard83 upheld a
helmet statute because the helmet protected not only the rider but also the welfare
of the public.8" In its dictum the court stated that the statute might be
constitutional even if the helmet protected only the rider, but a legitimate state interest
was in fact shown by the court-the preventing of persons from becoming public
charges after the result of brain damage.8 5
Brooks mentioned that the state confronted with a dying parent, a situation
such as existed in Georgetown, might have an overriding interest in the welfare of
a parent in preventing children from becoming wards of the state.8" The focus
is on the children, a valid state interest, not the adult.
On the other hand, the rationale of the public charges argument has been
refuted on the basis that it would allow the state to regulate every aspect of an
individual's life for his protection, causing all limitations on police power of the
state to disappear. 7
The state's interest in preventing public charges did not exist under the facts
of Heston as Miss Heston had no children to abandon upon her death.
The preservation of human life has been called one of society's most
important interests, deserving protection of the law against those who would refuse
medical treatment for religious reasons. The Supreme Court of New Jersey
would accept this proposition, but an analysis of other decisions shows an
uneasiness in the legislatures and courts in dealing with self-preservation."
The cases which purportedly deny an individual the right to expose himself
to danger of death actually put the emphasis on the protection of the public from
either economic or physical harm. The prevailing view is that an individual is
at liberty to do as he pleases as long as he does not unduly infringe on the rights
Two state court decisions have found helmet statutes unconstitutional for
having no reasonable relationship to public health, safety and welfare. 0 The
state was said to have no legitimate interest in protecting the motorcyclist from
himself.8 ' In contrast, Heston permitted the state to protect a hospital patient
from her refusal of a blood transfusion. The refusal of a blood transfusion does
not generally endanger the state's interest in the community's well-being. Heston
apparently found a "compelling state interest" in sustaining life for its own sake
as a cog in the state machine.92
In balancing the scales to determine whether or not the state interest is truly
compelling, consideration must also be given to the rights and interests of the
Jehovah's Witnesses. Though freedom of religious belief has absolute protection
while freedom of religious practice may be curtailed, a major difficulty lies in the
fact that actions are but manifestations of belief. The act cannot be severed from
the motives that prompt it. Religion, therefore, much more than mere state of
mind, is a life style which commands a certain relationship between man and
the things external to him.93 A Jehovah's Witness forced to receive a blood
transfusion prohibited by his religious tenets is effectively denied the right to pursue
his religious beliefs-his ultimate pursuit. The religious practice of a Jehovah's
Witness necessarily demands the utmost in governmental protection against
A Jehovah's Witness has the freedom to subscribe to religious beliefs,
practices and values which are unique to his religious faith. The view of the
Supreme Court as expressed in Board of Education v. Barnette94 is that the
freedom to differ with society is not limited to things that do not matter much.
"That would be a mere shadow of freedom. The test of its substance is the right
to differ as to things that touch the heart of the existing order."9 A court may
consider the religious principles of Jehovah's Witnesses to be erroneous and
foolish, especially those regarding blood transfusions, but in the absence of a
"grave and immediate danger to interests which the State may lawfully protect"
it is powerless to intervene.99 As the Illinois Court observed in Brooks:
Courts may decide whether the public welfare is jeopardized by acts done
or omitted because of religious belief; but they have nothing to do with
determining the reasonableness of the belief. That is necessarily a matter of
individual conscience. There is hardly a group of religious people to be
found in the world who do not hold to beliefs and regard practices as
important which seem utterly foolish and lacking in reason to others equally
wise and religious; and for the courts to attempt to distinguish between
religious beliefs or practices on the ground that they are reasonable or
unreasonable ... would inevitably result in the end of religious liberty. There is
not a religious persecution in history that was not justified in the eyes of those
engaging in it on the ground that it was reasonable and right and that the
persons whose practices9 7were suppressed were guilty of stubborn folly hurtful
to the general welfare.
The court went on to say that an individual may refuse to act for religious reasons
as long as the "refusal to act is not directly harmful to society.""8
A fundamental concept of our American heritage is that minority groups
92 See Dodge, The Free Exercise of Religion: A Sociological Approach, 67 MicH. L. Rnv.
679, 721-22 (1969).
93 Milhollin, The Refused Blood Transfusion: An Ultimate Challenge for Law and Morals,
10 NATURAL L.F. 202, 205 (1965).
94 319 U.S. 624 (1943).
95 Id. at 642.
96 Id. at 639.
97 32 I1l.2d at 373-74, 205 N.E.2d at 442.
have a right to promulgate their ideas; the state may not interfere on the basis
that the majority rules. To make public policy a mere function of the majority's
will is to ascribe to the notion that "might makes right." '9 No court decision has
mentioned the role of politics as an influence in its determination of the bounds
of religious freedom, but, it must be noted that the beliefs of both the Roman
Catholics and the Christian Scientists are such as to cause their adherence to
forsake lifesaving medical treatment, 00 yet, without opposition. Have these two
religious groups gained rights through favorable public opinion that the politically
hapless Jehovah's Witnesses have not?'0" One author feels that "[i]f every
second or third voter believed his very salvation depended upon 'abstaining from
blood,' there would be little chance that any elected government would oppose
The court may not, though motivated by good intentions, pass independent
moral judgment on the Jehovah's Witness' decision. Thomas Jefferson's
preamble to the Act for Establishment of Religion in Virginia had been relied upon
in part by the Supreme Court in Reynolds and the Illinois decision of Brooks.
In it Jefferson warned that religious freedom was destroyed when the judge "will
make his opinion the rules of judgment, and approve or condemn the sentiments
of others only as they shall square with or differ from his own.""' 3 Justice
Brandeis in the same light warned that "[e]xperience should teach us to be most
on our guard to protect liberty when the Government's purposes are beneficient.
... The greatest dangers to liberty lurk in insidious encroachments by men of
zeal, well meaning but without understanding."'0 " Judicial restraint is necessary
to prevent the judge from becoming a moral arbiter "roaming at will in pursuit
of his own idea of beauty or of goodness,"'0 5 which could only result in an
unwarranted invasion of a Jehovah's Witness' rights.
Judge Berger (now Chief Justice Berger) in reference to forced blood
transfusions to Jehovah's Witnesses, adhered to the opinion that some areas of
enormous public concern are beyond the control of the judiciary.0' 9 His opinion
was founded on an additional consideration favorable to the Jehovah's Witnesses'
freedom to refuse transfusions-the "right to be let alone," first enunciated by
Justice Brandeis' dissent in Omstead v. United States.' The "right to be let
alone" is not specifically enumerated in the Constitution. However, Justice
Goldberg in Griswold v. Connecticut' stated that there is a penumbra of fundamental
rights protected from governmental infringement that exists alongside those rights
99 Ford, supra note 31, at 223.
100 How, Religion, Medicine and Law, 3 CAN. B.J. 365, 370-74; Milhollin, supra note 93,
101 See 2 A. STOKES, CHURCH AND STATE IN THE UNITED STATES 325 (1950).
102 Milhollin, supra note 93, at 213.
103 VA. CODe ANN. § 57-1 (1950).
104 Justice Brandeis' frequently cited dissent in Omstead v.United States, 277 U.S. 438,
105 Application of President and Directors of Georgetown Col., 331 F.2d 1010, 1017 (D.C.
Cir. 1964) (Berger, J., dissenting).
106 Id. at 1018.
107 277 U.S. 438, 478 (1928).
108 381 U.S. 479 (1965).
specifically mentioned.' Griswold, by establishing a right of marital privacy,
demonstrated a willingness to include the "right to be let alone."" 0
Further, it is well said that the right to choose to die for one's religion is
included in the "right to be let alone-the most comprehensive of rights and the
right most valued by civilized men.""' Judge Berger believed that the "right to
be let alone" justified refusal of medical treatment at great risk." 2 The right to
choose to die for one's religious beliefs is not a novel concept. For centuries of
religious persecutions Christians had not only been allowed to die for their faith,
but had been forced to die. Existence itself must at times be risked in the
pursuance of a higher or more transcendental purpose to render its essence
meaningful."' A court of justice is neither empowered nor competent to say that earthly
life is such that "an individual cannot through moral conscience rise above it."" 4
Every man must be free to decide for himself what values are worth dying for.
To hold otherwise is to ignor the words of Justice Harlan, speaking for the
Court in Prince v. Massachusetts,"' that adults "may be free to become
V. The Interest of the Medical Profession
The Supreme Court of New Jersey striving to find a "compelling state
interest" for transfusing blood to Delores Heston weighed the interest of the
hospital and its staff." 7
One aspect of the medical profession's interest in administering blood to
Miss Heston was respect for its creed and conscience."' One case prior to Heston
had expressly dealt with the doctor's conscience in regard to giving blood
transfusions to Jehovah's Witnesses. This was United States v. George,"' the
Connecticut federal district court decision which had relied upon the rationale of
Georgetown in ordering a blood transfusion for a Jehovah's Witness."2 George
gave additional consideration to the physician's conscience and professional oath.
The federal court maintained that a patient who voluntarily submitted to and
insisted upon medical care was not justified "even in the name of free religious
exercise""' to require the physicians to ignore the mandates of their conscience
and "dictate ... a course of treatment amounting to medical malpractice.""'
In the words of the court: "[t]he patient may knowingly decline treatment, but
he may not demand mistreatment.""1' Similarly, in Heston it was said that a
doctor should not be asked to operate under the "strain of knowing" that a
medically required transfusion would not be given.124 At first glance both Heston
and George appear to be authority for the proposition that the doctor's conscience
under the circumstances deserves protection at the expense of the patient's moral
conscience. But keeping the doctor's conscience clear is not the foremost
concern of the court. The main objective is to avoid liability for medical malpractice.
The hospital and its staff upon the admission of a patient become legally
responsible for his proper care. Both George and Georgetown maintained that
the hospital and doctors' rights had been subjected to the possibility of an
impermissible infringement through exposure to risk of criminal and civil liability."'
Although patients in both cases had executed releases of liability, neither court
could say with any certainty that the releases would in fact absolve the parties
from all civil and criminal liability.12
Heston implied another serious, but possible, consequence facing the
hospitals and doctors. The court said that "the failure to use a simple established
[medical] procedure" under the circumstances would be malpractice in the eyes
of the medical profession "however the law may characterize that failure because
of the patient's private convictions." 2 7 This suggests that a doctor, though not
legally liable for malpractice, risks losing his license to practice medicine. Under
New Jersey law, the doctor's license could be revoked or suspended if the State
Board of Medical Examiners found that he was "guilty of gross malpractice or
gross neglect in the practice of medicine which has endangered the health or life
of any person."12 This places the doctor in the dilemma that he may possibly be
held liable not only for neglecting to administer the blood but also for
administering the blood without the patient's consent.
The common law principle of inviolability of the body gives the patient the
final say in medical decisions. 29 Treating a patient without consent is a battery
whether or not the treatment was medically beneficial. In the situations
concerning the Jehovah's Witnesses, this right to protection of bodily integrity is
enhanced by the patient's religious convictions.
The question is whether under this individualistic philosophy the right of a
competent adult, without minor children, to withhold his consent to lifesaving
treatment is paramount to the societal interests in preserving him. 2 Ericksonand
124 58 N.J. at 582, 279 A.2d at 673.
125 239 F. Supp. at 754; 331 F.2d at 1009.
126 Georgetown stated that a release executed by a patient in extremis could not be relied
upon by doctors to avoid criminal prosecution as death resulting from the lack of medical care
was manslaughter in the District of Columbia. 331 F.2d at 1009 n.18. George would not go
so far as to say that a release signed by both a coherent rational patient and his wife would
absolve attending doctors of all civil and criminal liability. 239 F. Supp. at 754. Contra,
Application of President and Directors of Georgetown Col. 331 F.2d 1010 (1964). Judge
Berger (now Chief Justice) dissenting said the risk of economic liability in Georgetown was
unsupported. He added that possible moral duty of the hospital towards the patient was not
justifiable. Id. at 1015-16.
127 58 N.J. at 582, 279 A.2d at 673.
128 N.J. STAT.ANN. § 45:9-16 (1937).
129 Pratt v.Davis, 224 Ill3.00, 79 N.E. 562 (1906); Schloendorff v.Society of New York
Hospital, 211 N.Y. 125, 105 N.E. 92 (1914); Rolater v. Strain, 39 Okla. 572, 137 P. 96
(1913). For a discussion of the consent required from patient see Powell, Consent to
Operative Procedures, 2 MD. L. REv. 189 (1961); Smith, Antecedent Grounds of Liability in the
Practiceof Surgery, 14 RocKY MT. L.Rav. 233 (1942).
130 See note 31 supra.
Brooks have answered in the affirmative, which answer has been reinforced by
the dicta of other cases.'' The conclusion in Erickson was that:
it is the individual, who is the subject of a medical decision, who has the
final say and. . . this must be necessarily so in a system of government which
gives the greates3t2possible protection to the individual in the furtherance of
his own desires.'
The right to withhold consent has an exception.
Under the doctrine of
parens patriae3' ' the state has been allowed to make medical decisions for infants
and incompetents acting as their guardian. Blood transfusions have been given
both to children over the objections of the parents.. and also to the parents
themselves under the rationale of protecting the children from abandonment."'
Delores Heston was 22 years old, unmarried and not pregnant, 8' parens patriae
could only be applied to her under the state's power of guardianship over
The mental condition of Delores Heston was a question of substantial import
at both the trial and appellate court levels. The lower court had been "called
upon to resolve the key issue of whether the defendant Delores Heston was
physically and/or mentally competent to formulate an informed opinion in order
to give a refused consent to a blood transfusion."'" 7 The holding of the trial court
131 Powell, supra note 130; Smith, supra note 130. But see Winters v. Miller, 306 F. Supp.
Where the ability of the patient to choose his type of treatment is unquestioned,
because his mental capacities have been unimpaired, he is allowed to choose the
scope of the treatment, even to the extent of refusing medically necessary blood
transfusions. (Emphasis added.)
Id. at 1167. The court distinguished Erickson and Brooks from Raleigh and Georgetown on
the basis of the public interest in the dependent children cases. Id. at 1167; Natason v. Kline,
186 Kan. 393, 350 P.2d 1093 (1960).
Anglo-American law starts with the premise of thoroughgoing 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 lifesaving surgery or
other medical treatment. (Emphasis added.)
350 P.2d at 1104; Wood v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962).
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 lifesaving surgery or other
medical treatment. (Emphasis added.)
377 P.2d 520 at 524; Ford, supra note 31, at 221.
132 44 Misc.2d at 28, 252 N.Y.S.2d at 706.
133 Parens Patriae refers to the right and duty of the sovereign to protect any person who
is under a disability, e.g., a child or incompetent adult.
134 People v. Labrenz, 411 111. 618, 104 N.E.2d 769 (1952) ; Morrison v. State, 252 S.W.2d
97 (Mo. Ct. App. 1952) ; State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962), cert. denied,
371 U.S. 890 (1962); Hoener v. Bertinato, 67 N.J. 571, 171 A.2d 140 (Juv. Ct. 1961); In re
Santos, 16 App. Div. 2d 755; 227 N.Y.S.2d 450 (1962); 552 (1933); In re Clark, 90 Ohio L.
Abs. 21, 185 N.E.2d 128 (C.P. 1962).
135 Application of President and Directors of Georgetown Col., 331 F.2d 1000 (D.C. Cir.
1964) Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 5
), cert. denied, 377 U.S. 985 (1964); see United States v. George, 239 F. Supp. 75
); Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.Y.S.2d
136 Brief for Defendant at 2; brief for Plaintiff at 2, John F. Kennedy Memorial Hospital
v. Heston, 58 N.J. 576, 279 A.2d 670 (1971) [hereinafter cited as brief for Plaintiff].
137 Brief for Plaintiff at 10.
in response was "that she was not physically able to give or refuse consent to a
blood transfusion."' 3
On appeal directly to the Supreme Court of New Jersey the
plaintiffrespondent hospital reaffirmed its basic contention that Miss Heston had been
medically incompetent, thereby giving the state the authority to protect her right
to live. 3 The plaintiff in its brief distinguished Erickson and Brooks from the
instant case in that Delores Heston had been declared incompetent whereas
Erickson and Brooks dealt with adults who had competently withheld consent. 4
The defendant in return argued that Delores Heston not only was competent but,
also, that a procedural error existed in the determination of her competency. 41
The competency issue was the basis of both the trial court's decision and the
plaintiff's argument for affirmance. However, the New Jersey court avoided the
issue competency and referred to Delores Heston's mental condition only through
implication. In stating the facts of the case the court mentioned that on Miss
Heston's admission to the hospital she was "then or soon became disoriented or
incoherent,"' 4 2 the very words the trial court relied upon in finding Miss Heston
incompetent.'43 The court added that she "presumably could not" have executed
a release of liability, another suggestion of incompetency.'
Rather than affirming or reversing on the incompetency issue, the New
Jersey court made its analysis of the right to die for religious beliefs. Considering
prior case decisions, especially Brooks and Erickson, only George and
Georgetown's consideration of the doctor's interest provided any reasonable argument,
aside from incompetency, for finding a "compelling state interest" in transfusing
blood to an adult Jehovah's Witness without child over his objections. But, this
argument loses its persuasiveness as authority since no action for malpractice in
omitting to administer blood to a Jehovah's Witness has, to date, been brought
against a hospital or its staff.
Furthermore, it must be remembered that the doctor's interest was only one
of the factors determinative of the outcome in Georgetown and George (relying
138 Brief for Defendant at 96a.
139 Plaintiff's first argument was that:
the physical and mental condition of . . . Delores Heston, was such, that she was
unable to formulate an informed opinion, and the passing of many hours in such a
critical state had so reduced her to a state of shock, that she was not physically or
mentally able to rationally give or refuse consent to a blood transfusion. (Emphasis
Brief for Plaintiff at 9.
Plaintiff's second argument was that since Delores Heston was incompetent to make a
rational decision whether or not to consent to the transfusion, that the court authorization of
the transfusion was in protection of her right to live. Brief for Plaintiff at 13-21.
Plaintiff's final argument was "that defendant's right to a jury trial as to the issue of
mental incompetency under N.J.S.A. 3A:6-35 . . . is not applicable to a life and death
emergency situation." Brief for Plaintiff at 22.
140 Brief for Plaintiff at 18-19, 20.
141 Brief for Defendant at 9, 10, 15. Delores Heston herself gave a statement that she was
"not incoherent" and knew what she was doing. Id. at 7a.
142 58 N.J. at 578, 279 A.2d at 671.
143 The trial court relied on the physician's statements in finding that Miss Heston was "not
physically able to give or refuse consent." Brief for Defendant at 88a-91a, 96a-97a. Four
physicians and six registered nurses gave affidavits repeatedly using the words "disoriented" and
"incoherent," to eplain that Delores Heston was not competent at the time it was determined
that she needed a transfusion. Brief for Defendant at 21a-30a.
144 58 N.J. at 578-79, 279 A.2d at 671.
upon Georgetown). These two decisions were also deeply concerned with the
preservation of a parent's life for the well-being of a child, proper use of parens
patriae-an important factual distinction from
Heston, the same distinction
which was made in Brooks.'4 5
The only possible compelling public interest in giving Delores Heston a
blood transfusion was protection of an incompetent adult.
Judicial guidelines must be established for objectively resolving the true
legal issues which confront courts in blood transfusion cases.14
The court must be
able to reach its decision quickly; time is of the essence. The emotional influences
as seen in Georgetown and Powell are to be avoided. 47
If an adult Jehovah's Witness has competently withheld his consent to all
blood transfusions, there appears to be no legal justification for complete denial
of his right to refuse a transfusion. At best this right is subject only to limited
infringcment under the circumstances of a paramount societal interest. The right
of a child to survive and be cared for by his parents until capable of making his
own value judgment in regard to transfusions is such an interest. 4
interest in avoiding liability for malpractice is not such an interest since it is more
of a theoretical than persuasive argument.
Generally, protection of an incompetent adult is a compelling public interest
since he is as helpless as a child in caring for himself. But there is a danger of
abusing this use of parens patriae.
Often the adult's physical condition has already deteriorated to the state of
medical incompetency before a transfusion is determined to be necessary.'4 9 Also,
it is possible for medical personnel to wait until the patient is incompetent in
order to apply for a court order on that basis. 5 ' Either situation will effectively
negate the adult's right to competently refuse the transfusion.
The proper approach in solving this problem
was taken in Brooks by
145 32 Ill.2d at 369, 372-73, 205 N.E.2d at 440, 442.
146 An attempt to establish definite guidelines was made by the Jehovah's Witnesses of the
state of Washington. They brought a class action including minors and adults for the purpose
of declaring their rights and permanently enjoining all doctors and hospitals in the state of
Washington from administering blood transfusions to the plaintiffs in the future. The action
was dismissed as to all defendants. Jehovah's Witnesses in State of Wash. v. King County
Hosp., 278 F. Supp. 4
88 (W.D. Wash. 1967
), af'd, 390 U.S. 598 (1968), rehearing denied,
391 U.S. 961 (1968).
147 Both courts were unwilling to let any desiring to live but refusing blood on a religious
basis die. In the words of Judge Markowitz in Powell this is expressed in saying:
How legalistic minded our society has become, and what an ultra-legalistic maze
we have created to the extent that society and the individual have become enmeshed
and paralyzed by its unrealistic entanglements!
I was reminded of "The Fall" by Camus, and I knew that no release-no
legalistic absolution - would absolve me or the Court from responsibility if I,
speaking for the Court, answered "No" to the question, "Am I my brother's keeper?"
This woman wanted to live. I could not let her die!
49 Misc. 2d at 216, 267 N.Y.S.2d at 452.
148 Supra note 3.
149 For example, in the event of a serious injury resulting from an accident, the patient will
often be in severe shock before arrival at the hospital.
150 64 MIcH. L. REv. 554, 559 (1966). This was contended to be the factual situation in
Heston. Brief for Defendant at 9-10.
withheld, not at the time the transfusion was deemed medically necessary.' 5'
determining the competency of the patient at the time the consent was initially
How would this procedure have affected Delores Heston? For six years she
had carried a card in her wallet which expressed and explained her desire not to
receive blood.5" 2 This fact taken together with the affidavits of her mother, her
minister, and herself'5 3 left no doubt that she had competently withheld her
consent to all blood transfusion prior to her accident.
If Delores Heston was com
petent to withhold her consent, there was no compelling state interest in giving
her a transfusion.
1 The Jehovah's Witnesses believe that a blood transfusion is "eating blood" which is prohibited by the Bible in Leviticus 17:10, Acts 15 : 28 - 29 and other biblical quotations . In re Estate of Brooks 32 Ill.2d 361 , 362 - 63 , 205 N.E.2d 435 , 437 ( 1965 ). For an expanded discussion of their religious beliefs concerning blood transfusions see Ford, Refusal of Blood Transfusions by Jehovah's Witnesses, 10 CATHi . LAW. 212 , 213 - 14 ( 1964 ); How, Religion, Medicine and Law 3 CAN. B. J . 365 , 367 - 70 ( 1960 ).
2 In re Estate of Brooks, 2 Ill.2d 361 , 362 ; 205 N.E.2d 435 , 436 - 37 ( 1965 ).
3 People v . Labrenz , 411 Ill. 618 , 104 N.E.2d 769 ( 1952 ), cert. denied, 344 U.S. 824 ( 1952 ); Morrison v . State , 252 S.W.2d 97 (Mo . Ct. App. 1952 ); State v . Perricone , 37 N.J. 463 , 181 A.2d 751 , cert . denied, 371 U.S. 890 ( 1962 ); Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson , 42 N.J. 421 , 201 A.2d 537 , cert . denied, 377 U.S. 985 ( 1964 ). Additional cases are listed in Note, Compulsory Medical Treatment and the Free Exercise of Religion, 42 IND . L.J. 386 , 391 n. 31 ( 1967 ).
4 People v . Pierson , 176 N.Y. 201 , 211 , 68 N.E. 243 , 246 ( 1903 ).
5 321 U.S. 158 ( 1944 ).
6 Id . 166 - 170 .
26 58 N.J. 576 , 279 A.2d 670 ( 1971 ).
27 State v. Carney , 69 N.J.L. 478 , 480 , 55 A. 44 , 45 (Sup. Ct. 1903 ).
28 "Any person who attempts to commit suicide is a disorderly person." N.J. STAT . ANN. § 2A: 170 - 25 .6 ( 1937 ). Thz validity of this statute was attacked in Penney v . Municipal Court of Cherry Hill , 312 F. Supp . 938 (D. N .J. 1970 ) (action was dismissed for lack of jurisdi-tion) .
29 N.J. STAT . ANN. § 29 : 170 - 25 .6 ( 1937 ) ; 21 OKLA . STAT. ANN. tit. 21 § 812 ( 1958 ); S.D. CODE 22-16- 38 ( 1967 ) ; WASH . REV. CODE § 9.80.020 ( 1961 ).
30 English Suicide Act , 9 and 10 Eliz . 2, c. 60 ( 1961 ).
31 Ford, Refusal of Blood Transfusion by Jehovah's Witnesses, 10 CATH . LAW. 212 , 225 ( 1964 ) ; see 9 UTAH L . REv . 161 , 166 - 67 ( 1964 ); contra, Note. Unauthorized Rendition of Lifesaving Medical Treatment , 53 CALIF. L. REv. 860 , 869 - 71 ( 1965 ).
32 Note, Compulsory Medical Treatment: The State's Interest Re-evaluated, 51 MINN . L. REv. 293 , 303 - 04 ( 1966 ).
33 W. PROSSER , HANDBOOK OF THE LAW Or TORTS §§ 28 . 34 (3d ed. 1964 ).
34 See People v. Beardsley , 150 Mich. 206 , 113 N.W. 1128 ( 1907 ).
35 Ford, supra note 31, at 225; Cunningham, Indicated Blood Transfusions and the Adult Jehovah's Witness: Trial Judge's Dilemma, 2 VALPARAISO UNIv . L. REV. 55 , 80 , saying: It would be no consolation to know that science and medicine were advanced at the cost of deprivation of so precious a thing as one's religious liberty . And it would be sad in the extreme if a trial judge failed to protect a person's religious liberty because he mistakenly believed that the threatened refusal was absolutely immoral .
36 Supra note 32.
37 Application of President and Directors of Georgetown Col., 331 F.2d 1000 , 1009 (D.C. Cir . 1964 ), rehearing en banc denied, 331 F . 2d 1010 (D.C. Cir . 1964 ), cert. denied, 377 U.S. 978 ( 1964 ).
38 Brief for Defendant at 8-9 , John F. Kennedy Memorial Hospital v. Heston , 58 N.J. 576 , 279 A.2d 670 ( 1971 ) [hereinafter cited as brief for Defendant] .
62 58 N.J. 576 , 584 , 279 A.2d 670 , 674 ( 1971 ).
63 44 Tax. L. REv . 190 ( 1965 ).
64 58 N.J. at 584 , 279 A.2d at 674.
65 Winters v. Miller , 306 F. Supp . 1158 (E.D.N .Y. 1969 ).
[ A] limitation on religious practices is proper when there is a compelling public interest which conflicts with the individual's private religious interest. In such circums'tances the government may protect and promote the general health, safety and welfare of its citizens . ... Id. at 1169.
66 Jacobson v. Massachusetts, 197 U.S. 11 , 26 ( 1905 ).
67 Id.; In re Estate of Brooks, 32 Ill.2d 361 , 372 ; 205 N.E.2d 435 , 441 - 42 ( 1965 ); State v . Betts , 21 Ohio Misc. 175 , 180 - 81 ; 252 N.E.2d 866 , 870 ( 1969 ).
68 Jacobson v. Massachusetts, 197 U.S. 11 , 26 - 27 ( 1905 ).
69 Reynolds v. United States , 98 U.S. 145 ( 1878 ).
70 Hill v. State , 38 Ala. App. 623 , 88 So . 2d 880 (Ct . App. 1956 ); Hardin v . State , 188 Tenn. 17 , 216 S.W.2d 708 ( 1948 ); Lawson v . Commonwealth , 291 Ky. 437 , 164 S.W.2d 972 ( 1942 ); State v . Massey , 229 N.C. 734 , 51 S.E.2d 179 ( 1949 ), appeal dismissed sub nom ., Bunn v. North Carolina , 336 U.S. 942 ( 1949 ). The snake handling cases concerned religious rituals involving the handling of poisonous snakes "in such manner as to endanger the public health, safety and welfare . " Id. at 734 , 51 S.E. 2d 179.
71 Zucht v. King , 260 U.S. 174 ( 1922 ); Jacobson v . Massachusetts, 197 U.S. 11 ( 1905 ) ; Mountain Lakes Bd . of Education v. Maas , 56 N.J. Super . 245 , 152 A.2d 394 ( App. Div . 1959 ), aff'd, 31 N.J. 537 , 158 A.2d 330 ( 1960 ), cert. denied, 363 U.S. 843 ( 1960 ).
72 Baer v. City of Bend , 206 Ore. 221 , 292 P.2d 134 ( 1956 ).
73 Bogue v. Faircloth , 316 F. Supp . 486 (S.D. Fla . 1970 ); State v . Anderson , 275 N.C.
83 165 N.W. 2d 677 (N.D . 1969 ).
84 Id. at 680.
85 Id. at 679.
86 32 Ill.2d at 369 , 205 N.E.2d at 440.
87 Note, ConstitutionalLaw - Police Powers- Michigan Statute Requiring Motorcyclists to Wear ProtectiveHelmets Held Unconstitutional, 67 Mica. L. REy. 361 , 364 - 65 ( 1968 ).
88 Note, Compulsory Medical Treatment and the Free Exercise of Religion , 42 IND. L.J. 386 , 396 ( 1967 ).
89 State v. Eitel, 227 So. 2d 489 , 491 (Fla. 1969 ).
90 Motorcycle Assn . v. State Police , 11 Mich. App. 351 , 158 N.W.2d 72 ( 1968 ); State v . Betts , 21 Ohio Misc. 175 , 252 N.E.2d 866 ( 1969 ).
91 Motorcycle Assn . v. State Police , 11 Mich. App. 351 , 158 N.W.2d 72 ( 1968 ); State v . Betts , 21 Ohio Misc. 175 , 252 N.E.2d 866 ( 1969 ).