“The First Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute. The second cannot be.”
—OWEN ROBERTS, ASSOCIATE JUSTICE, UNITED STATES SUPREME COURT
Although the choice to withhold lifesaving medical therapies from children in the name of religion is surprising, more surprising is that citizens, lawmakers, and prosecutors haven’t stepped forward to stop it. It wasn’t always that way. Beginning more than a hundred years ago, the law consistently protected children against religiously motivated medical neglect.
It started with the Peculiar People.
IN THE MID-1800s, John Banyard founded the Peculiar People. Located in Essex, England, the Peculiars took their name from 1 Peter 2:9, which calls the Lord’s followers a royal priesthood, a holy nation, a peculiar people. Like all faith healers, the Peculiar People rejected modern medicine, choosing prayer and anointment instead.
In 1868, Lois Wagstaffe, the fourteen-month-old daughter of Mary Ann and Thomas Wagstaffe, died of pneumonia. Believing she was suffering from teething, the Wagstaffes called on church elders to anoint her with oil. After Lois died, the Wagstaffes were charged with manslaughter because, as noted by a local official, “it was lamentable to think that there should be such a perversion of Scripture with respect to children.”
The law, however, was on the Wagstaffes’ side. According to British common law, “in the absence of a statute declaring it a positive duty upon a parent to call in a medical practitioner, the omission to do so can scarcely be considered negligence so gross and wanton as to be criminal.” After the Wagstaffes were acquitted, several jurors publicly decried the absence of a law to protect children from medical neglect. Their pleas reached the British Parliament. Six months later, the Poor Law Amendment Act was modified to read, “when any parent shall willfully neglect to provide adequate food, clothing, medical aid, or lodging for his child . . . whereby the health of such child shall have been injured . . . [the parent] shall be guilty of an offense.” The state now had a right to prosecute parents who medically neglected their children.
The first test of the new law came in 1875 when a Peculiar named John Robert Downs chose prayer to treat his thirteen-month-old daughter’s scarlet fever. After she died, Downs was charged with manslaughter, convicted, and sentenced to three months in prison. Downs’s imprisonment didn’t change behavior; the Peculiar People continued to deny their children medical care.
In 1882, British citizens saw just how devastating the Peculiar People’s actions could be. During the trial of John and Rachel Morby—whose eight-year-old son, Abraham, had died from smallpox—Rachel explained that she, her husband, and their other children had been “out and about” during their son’s fatal illness. Her admission was in direct violation of smallpox quarantine laws. At the inquest, the coroner asked, “Do you think your creed authorizes you to murder a street full of people?” The jury convicted John Morby of manslaughter.
The most sensational trial of the Peculiar People occurred in 1897 when George Senior’s fourteen-month-old son, Amos, contracted pneumonia. Senior chose prayer and anointment, without success. It wasn’t the first time that a child of George Senior’s had died. It was the sixth. “The Lord gave and the Lord hath taken away,” he explained. Senior was convicted of manslaughter. Then, on December 15, 1898—five days after the court upheld his conviction—Senior’s eight-month-old son, Tansley, died of pneumonia. Confronted with the fact that Senior had now lost seven of his twelve children to illness, the judge sentenced him to four months in prison with hard labor.
The Downs, Morby, and Senior cases opened a floodgate of convictions. During the second half of the nineteenth century, Peculiars were charged, convicted, and imprisoned when their children died from diphtheria, epilepsy, and a variety of other illnesses.
British courts had spoken. Parents who chose to medically neglect their children in the name of God could be convicted of a crime and sent to prison. The most amazing aspect of the British cases wasn’t that they occurred but when they occurred. The Peculiar People were successfully convicted of letting their children die from diphtheria before diphtheria antiserum, from seizures before phenobarbital, and from pneumonia and scarlet fever before antibiotics.
The final and most influential trial of the Peculiars occurred in the early 1920s after Norman Purkiss, the three-year-old son of Louisa and Henry Purkiss, died of diphtheria. The difference between the Purkiss case and the others was that it occurred after diphtheria antiserum had become available. The prosecutor pointed out that parents were “perfectly entitled” to anoint themselves with oil when they were sick, but they weren’t entitled to do the same to their sick children. Two decades later, these words would echo almost verbatim in what would become the single most cited public health case ever argued before the United States Supreme Court.
EVENTS IN THE UNITED STATES soon mirrored those in England.
In the spring of 1901, Emma Judd and her newborn “were lulled into eternity by the prayers of John Alexander Dowie”—a leader of a faith healing sect in Chicago—after they failed to receive medical care during a complicated childbirth. Chicago’s citizens were in an uproar, fueled in large part by the unrepentant arrogance of both Dowie and Emma’s husband, John. Unfortunately, John Dowie hadn’t broken any laws. A local newspaper wrote, “The general opinion among lawyers [is] that the laws as presently shaped are inadequate to cope with this modern evil.”
The Judd case in America paralleled the Wagstaffe case in England. Soon prosecutors, judges, and child advocates targeted Dowie and his followers, eager to prevent them from causing more harm. The most famous politician to rise in defense of children was presidential hopeful William Jennings Bryan, who said, “There should be a limit to so-called religious freedom. And the limit should be reached when folly usurps the throne of the Christian faith.” Bryan’s anger was ironic, given his fervent defense of the Bible during the “trial of the century,” in which John Scopes was accused of teaching evolution in violation of Tennessee state law—a trial that was later immortalized in the play and movie Inherit the Wind.
As had been the case in England, public outcry changed the law. The first test came one year after the death of Emma Judd and her baby.
In 1902, Luther Pierson, a clerk for the New York Central Railroad, chose prayer instead of medical care for his daughter’s pneumonia. Pierson was a member of the Christian Catholic Church, a faith healing group. “All diseases are the devil,” he said, “and it was the devil’s work in this child.” Pierson was confident that “the Almighty would arrest disease if I asked him.” When his daughter died, Pierson blamed himself: “I attribute the child’s death to a lack of faith on my part, and to the fact that I am not pure in the sight of God.” In May 1901, a White Plains, New York, jury found Pierson guilty of criminal neglect. Pierson later took his case to the New York State Court of Appeals, which supported the conviction, writing that Pierson “cannot be excused from punishment for slaying those who had been born to him.”
The Pierson case showed that parents in the United States who chose prayer instead of medicine could be convicted of a crime and sent to prison. “The verdict is of the highest importance,” said J. Addison Young, a Westchester County district attorney, “and means absolutely that these faith curists and others of the same sort must obey the law.” An editorial in the journal, American Lawyer, hailed the verdict as a blow “to all members of the great cult of humbuggery.”
ALTHOUGH THE PIERSON VERDICT was important, the final word on religiously motivated medical neglect won’t be made by local courts, district courts, or state courts; it will be made by the United States Supreme Court. Unfortunately, Supreme Court justices have never ruled on a faith healing case. They have, however, handed down verdicts in many cases involving the First Amendment guarantee to practice religion freely and without restraint. Eight cases have been particularly instructive. The driving principle behind these decisions seems to be that if a religious practice doesn’t hurt society, it’s permitted; if it could hurt society, it’s not.
IN FOUR CASES, Supreme Court justices have not allowed states to regulate religious practices.
In 1963, Adell Sherbert, a Seventh-day Adventist living in South Carolina, was fired from her job as a textile worker. Like all Adventists, Adell didn’t work on Saturdays: a practice inspired by Exodus 20:10: The seventh day is the Sabbath of the Lord thy God; in it you shalt not do any work. Two years after Adell had joined the church, her employer switched from a five-day to a six-day work week, including Saturdays. Because Adell couldn’t work and maintain her faith at the same time, she quit. When she couldn’t find other work, she applied for unemployment compensation, which was denied. The South Carolina Employment Compensation Commission argued that because Adell had quit, she wasn’t entitled to anything. So she took her case to the South Carolina Supreme Court—and lost. The case then went to the United States Supreme Court which, by a vote of 7 to 2, struck down the previous decision, agreeing with Adell that her First Amendment right to practice religion freely had been violated.
IN THE LATE 1960s, Jonas Yoder, Wallace Miller, and Adin Yutzy—Amish parents living in New Glarus, Wisconsin—took their children out of school after the eighth grade, believing that sending them to a local high school would endanger their salvation. Everything their children needed to know, they argued, could be learned on the farm. Their choice, however, was in direct violation of a Wisconsin state law requiring children to attend school until they were sixteen. The case worked its way up to the United States Supreme Court, where justices sided with the parents. But not all were comfortable with the decision. Justice William O. Douglas, worried that his fellow justices had opened a dangerous door, sounded a note of caution: “The power of the parent, even when linked to the free exercise claim of the first amendment, may be subject to limitation if it appears that parental decisions will jeopardize the health or safety of the child.”
IN 2005, AN UNUSUAL alliance between the George W. Bush administration, liberal activists, and conservative religious groups rose in support of five Ohio prisoners who had been prohibited from conducting religious services. Two prisoners were followers of Asatru, a polytheistic Viking religion that reveres Thor; one was a minister of the Church of Jesus Christ Christian, which preaches white supremacy; the fourth was a Wiccan witch; and the last was a Satanist. The United States Supreme Court voted unanimously to support the prisoners’ right to practice their faith unimpeded by the Ohio state correctional system.
PERHAPS THE MOST INTERESTING clash between religious freedom and societal norms took place in Hialeah, Florida, in the late 1980s. In 1954, Ernesto Pichardo arrived in South Florida with the first wave of Cuban exiles, settling in an area of Miami called Little Havana. Ernesto embraced his mother’s belief in Lukumi-Santeria, an ancient religion rooted in Yorubaland, West Africa. Yorubas worship orishas, guardians of human destiny. It was how they worship them that became the problem.
Yorubas believe that in order to remain strong and effective, orishas must eat; otherwise, human lives are in jeopardy. Nothing apparently nourishes orishas better than animal blood. As a consequence, the Santerian calendar is a smorgasbord of animal sacrifices including chickens, goats, roosters, pigeons, ducks, turtles, hens, doves, lambs, rams, and rats. After the sacrifice, animals are eaten according to the saying, “La sangre para el Santo, la carne para el Santero” (“Blood for the Saint, meat for the Santerian”).
By the 1980s, more than fifty thousand Santerians lived in South Florida. In 1987, responding to the growing need for a place of worship, Ernesto Pichardo opened the Church of the Lukumi Babalu Aye in an abandoned car dealership two blocks from Hialeah’s main street and city hall.
Unfortunately for Pichardo, at the time he opened his church, several sensational events involving Santerians had alarmed the American public. In nearby Miami, worshippers had placed animal carcasses on the steps of courthouses—offerings they hoped would bring good luck to those on trial. In New York City, goats’ heads and paper bags filled with bloodied chicken feet appeared in Central Park. In Falls Church, Virginia, police found gutted chickens in a local cemetery. And in Santa Monica, California, pools of blood were found in a parking lot following the ritual sacrifice of three lambs. The religious practices of Santerians further frightened the public when a popular television show, Miami Vice—based on two real-life Miami-Dade detectives—featured haunting episodes about Santeria worshippers. And in 1987, the movie The Believers, starring Jimmy Smits, Helen Shaver, and Martin Sheen, implied that Santerian sacrifices weren’t limited to animals.
As tensions built, Santerians found themselves in court in violation of recently passed health ordinances. The Miami Herald, Washington Post, New York Times, and Los Angeles Times called them “the chicken wars.” It wasn’t long before Ernesto Pichardo’s church in Hialeah was at the center of the controversy.
The city of Hialeah—perhaps best known for a racetrack that features four hundred pink flamingos—consists mostly of Cuban Americans living in small houses and apartments. Confronted with Pichardo’s new church, neighbors got together to shut it down. The lawyer they hired was Alden Tarte. “Santeria is not a religion,” said Tarte. “It is a throwback to the dark ages. It is a cannibalistic, Voodoo-like sect, which attracts the worst elements of society: people who mutilate animals in a crude and most inhumane manner. Ernesto Pichardo is not the kind of guy you want next door.” Pichardo disagreed. “It’s just a continuing process of religious persecution,” he said. Pichardo didn’t have the resources to fight his neighbors. But help was at hand. The Miami chapter of the ACLU agreed to take the case.
On October 5, 1989, Pichardo lost in federal court. Judge Eugene Spellman ruled that “Santeria remains an underground religion and the practice was not, and is not today, socially accepted by the Cuban population.” Spellman estimated that “between twelve thousand and eighteen thousand animals are sacrificed in initiation practices alone.” Pichardo’s lawyer, Jorge Duarte, was appalled by the verdict. “It is a dark day for religious freedom,” he said. “We’ve made criminals out of seventy thousand people in South Florida.” Next, Pichardo appealed Spellman’s verdict to the Eleventh Circuit’s Court of Appeals. Again, no luck. In a tersely worded, one-paragraph opinion, the court upheld Spellman’s verdict. But Pichardo wasn’t finished. On March 23, 1992, the United States Supreme Court agreed to hear the case.
Fifteen months later, Supreme Court justices handed down their ruling. Writing for the majority, Justice Anthony Kennedy chastised city officials for using sanitation ordinances to harass Pichardo’s church. “Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the nation’s essential commitment to religious freedom.” Ernesto Pichardo had won his fight to practice his religion freely. On learning of the decision, Pichardo held a news conference. “This is why we came to the United States,” he said, “because we have freedom of speech and freedom of religion. Animal sacrifice is an integral part of our faith. It is like our holy meal.” Evoking the name of the orisha of thunder and lightning, Pichardo said, “Shango was on our side.”
Two weeks after the verdict, Rigoberto Zamora, a Pichardo supporter, celebrated by performing a public sacrifice. “What before we had to hide,” he said, “now we can do in the open.” With cameras rolling, Zamora sacrificed a ram, three goats, five chickens, two roosters, two pigeons, and two guinea hens. Then he poured the ram’s blood over an altar dedicated to Shango. “We feel different now,” he enthused, “but we have always done this, legal or not.” Unfortunately, the two-hour ceremony didn’t go quite as planned. Because he had used a dull steak knife, Zamora had trouble severing the head of the ram. And he had to kill one of the guinea hens by slamming its head against the floor. Then he ripped off the head of a pigeon with his hands. Media coverage wasn’t kind.
ACCORDING TO THE United States Supreme Court, states do not have the right to limit the religious practices of employees who can’t work on the Sabbath; of parents who choose to home school their children; of prisoners whose religious beliefs include witchcraft, white supremacy, reverence to Thor, and allegiance to Satan; and of people who want to offer the blood of freshly sacrificed animals to appease holy spirits.
IN FOUR INSTANCES, however, Supreme Court justices have allowed states to regulate certain religious rituals.
In the history of public health, no case has been cited more than that which began one night on the streets of Brockton, Massachusetts. In the early 1940s, Sarah Prince, a Jehovah’s Witness, asked her niece, Betty Simmons, to help distribute pamphlets in exchange for voluntary contributions. Betty wasn’t coerced to hand out the reading materials; in fact, she enjoyed it. Unfortunately, Betty’s pamphleteering was in direct violation of a Massachusetts child-labor law that prohibited boys under twelve and girls under eighteen from “selling, exposing, or offering for sale any newspapers, magazines, periodicals or any other articles of merchandise of any description in any street or public place.” The purpose of the statute was to keep children out of potentially dangerous situations. Sarah Prince was convicted of violating this law. Eventually, she took her case to the United States Supreme Court.
During the trial, Prince argued that her niece was exercising her “God-given right and her constitutional right to preach the gospel.” The Court disagreed. In a strongly worded verdict, Justice Wiley B. Rutledge wrote, “The family itself is not beyond regulation in the public interest. And neither the rights of religion nor the rights of parenthood are beyond limitation.” Then, echoing the words of the prosecutor in the case of Peculiar Norman Purkiss, Rutledge wrote, “Parents may be free to make martyrs of themselves, but they are not free in identical circumstances to make martyrs of their children.”
THE SECOND INSTANCE in which the Supreme Court ruled against religious practices was the first case to set limits on the First Amendment. It occurred almost a hundred years before Sarah Prince distributed her religious pamphlets on the streets of Brockton.
In the 1860s, George Reynolds married Amelia Jane Schofield—which wouldn’t have been a problem if he hadn’t still been married to Mary Ann Tuddenham: a fact he didn’t deny. Reynolds, a member of the Church of Latter-day Saints, was arrested for polygamy.
In the early 1800s, no religious group was more vilified than the Mormons. Persecuted in New York and in other East Coast cities, they fled to the Midwest where their founder, Joseph Smith, further inflamed the public by introducing the doctrine of polygamy, which Smith believed paved the way to heaven. To escape further persecution, Smith’s successor, Brigham Young, continued the Mormon migration westward, ending up at the Great Salt Lake Basin in Utah. In 1852, polygamy was officially embraced as a church doctrine. In response, the United States Congress passed a series of statutes forbidding polygamists to serve on juries or vote in federal elections. But Mormons refused to give in. So, in 1862, Congress made polygamy a crime, passing the Morrill Anti-Bigamy Act. During deliberations, Congress relied on the words of Thomas Jefferson who, in his Bill for Establishing Religious Freedom, wrote, “the acts of the body, unlike the operations of the mind, are subject to coercion of the laws.” In other words, people can believe whatever they want; they just can’t do whatever they want.
On October 23, 1874, a grand jury indicted George Reynolds for polygamy. A few months later, Reynolds was convicted and sentenced to two years of hard labor and ordered to pay a five-hundred-dollar fine. Reynolds, refusing to believe he had done anything wrong, took his case to the United States Supreme Court.
In 1878, Supreme Court justices handed down their ruling. Chief Justice Morrison Waite stated, “To permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Under such circumstances, argued Waite, government would exist in name only. Then Waite went even further, taking the plea for religious freedom to its illogical end. “Suppose one believed that human sacrifices were a necessary part of religious worship,” he wrote, “would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed that it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her from carrying her belief into practice?”
George Q. Cannon, a Mormon and a representative of the Utah territory, was angered by the Court’s ruling, saying, “Our crime has been that we married women instead of seducing them; we reared children instead of destroying them; and we desired to exclude from the land prostitution, bastardy, and infanticide. If George Reynolds is to be punished, let the world know that in this land of liberty the law is swiftly invoked to punish religion, but justice goes limping and blindfolded in pursuit of crime.”
THE THIRD INSTANCE in which the Supreme Court allowed states to regulate religious practices occurred in the 1980s. This time, the Court ruled on a religious ritual that violated state drug laws.
Alfred Smith and Galen Black were counselors at a private, nonprofit alcoholism and drug treatment center in Roseburg, Oregon. As a condition of employment, all counselors were asked to refrain from “any and all alcoholic beverages and other mind-altering substances unless prescribed by a physician.”
Smith and Galen were members of the Native American Church, which uses peyote as part of its religious ceremony to “communicate with the Creator and obtain spiritual enlightenment.” Peyote contains the powerful hallucinogen mescalin: a Schedule I drug in the same class as heroin, cocaine, and marijuana. In Oregon, as in many states, the use of Schedule I drugs is a criminal offense. When Smith and Galen were found to have used peyote during a religious ceremony, they were fired from their jobs. When they applied for unemployment insurance, their claims were denied.
The case eventually worked its way up to the United States Supreme Court. Lawyers for Smith and Galen argued that peyote didn’t hurt anyone; that other Schedule I drugs such as marijuana were legal in some states; that illegal trafficking of peyote didn’t exist; and that the use of peyote was an act of worship, similar to the ingestion of wine during communion. Lawyers for the state argued that allowing peyote for religious purposes would make it difficult to enforce existing drug laws, burden the criminal justice system, and allow for religious claims for the use of other psychedelic drugs such as LSD, hashish, and heroin. “State criminal law would become a patchwork of prohibition,” they argued, “covering some people for some drugs, and other people for other drugs.”
Smith and Galen lost their case. Writing for the majority, Justice Antonin Scalia agreed with the Employment Division of Oregon, arguing that the Supreme Court had never held that an individual’s religious beliefs should excuse him from compliance with valid drug laws.
THE FOURTH SUPREME COURT case limiting religious practice was probably the most heart wrenching. The issue at hand, however, was so clear that justices didn’t bother to write a lengthy opinion.
In 1945, following the widespread use of blood transfusions in World War II, Jehovah’s Witnesses officially condemned the practice, likening it to “cannibalism.” Their position ignited a series of high-profile court cases.
In 1952, an infant named Cheryl Linn Labrenz suffered from a disorder that destroyed her red blood cells. Without a blood transfusion, she would surely die. Her mother, a Jehovah’s Witness, argued that the transfusion “would be breaking God’s commandment.” A judge in Cook County, Illinois, appointed a guardian to take over Cheryl’s care and ordered him to consent to a blood transfusion. The Illinois State Supreme Court upheld the ruling.
In 1961, a three-year-old boy named Joseph Perricone suffered a heart condition that required an immediate blood transfusion. His father, a Jehovah’s Witness minister, argued that it violated Biblical scripture. The judge disagreed. Unfortunately, by the time Joseph had received the transfusion, he was too ill to benefit, dying fifteen minutes later. A jury later convicted the Perricones of child neglect. The New Jersey State Supreme Court upheld the conviction.
In 2004, twin sons of Jehovah’s Witnesses Jason and Rebecca Soto suffered a disorder called twin-twin transfusion, when one twin inadvertently transfers much of his blood to the other while still in the womb. As a consequence, the twin who loses blood can became severely anemic. Jason and Rebecca, however, refused a transfusion for their son. The hospital sought and received a court order for temporary custody of both children. The lower court granted the request, and the Nevada State Supreme Court upheld it.
Laws requiring blood transfusions have also extended to children before they’re born. In 1964, a hospital in Neptune, New Jersey, sought a court order to transfuse a woman named Willimina Anderson who suffered from a disorder in which the placenta blocks the exit of the child from the womb. If left unattended, the blockage can cause massive hemorrhaging during the birth process, killing both mother and child. Willimina, a Jehovah’s Witness, refused the transfusion. In this case, Willimina wasn’t making a decision for herself only. The New Jersey State Supreme Court granted the order, stating that it was “satisfied that the unborn child is entitled to the law’s protection.” Willimina’s husband disagreed. “Our religion calls for man to do God’s will,” he said, “yet six men on the Supreme Court of New Jersey have overruled God’s will.”
Perhaps the most unusual case of Jehovah’s Witnesses involved Jesse E. Jones. One evening, Jones, who suffered from a bleeding ulcer, was taken to a Washington, DC, hospital after she had lost a lot of blood. Her husband refused to allow her to receive the blood transfusion needed to save her life. The hospital sought a court order mandating the transfusion. Judge J. Skelley Wright agreed, and Jesse’s life was saved. Unique to this case, Judge Wright appears to have countermanded the Supreme Court’s ruling in the case of Sarah Prince, which stated, “Parents may be free to make martyrs of themselves . . .” Jesse Jones was prepared to martyr herself only; unlike Willimina Anderson, she wasn’t pregnant. She was, however, the mother of a seven-month-old child. The judge ruled that, “The state will not allow a parent to abandon a child, and so it should not allow this most ultimate of abandonments.”
Eventually, the United States Supreme Court weighed in. In 1968, in response to a Washington State Supreme Court ruling that centered on a little boy severely injured in an automobile accident, the justices supported the lower court’s ruling ordering blood transfusions for the children of Jehovah’s Witnesses. The case was so clear that the justices didn’t write a single sentence in support of their opinion, choosing instead to write one word: affirmed.
In four instances, United States Supreme Court justices have ruled that certain religious practices—because they might be detrimental to society—can be regulated by the state. Specifically, states can prevent young children from standing on street corners at night; compel children of Jehovah’s Witnesses to receive lifesaving blood transfusions; prohibit polygamy and its potential for debasement of women and children; and ban the use of a powerful hallucinogen. Although faith healing cases have never come before the United States Supreme Court, one can only imagine that justices would similarly rule that denying children lifesaving medicines is also contrary to the good of society.
THEN, ON JUNE 30, 2014—in what Justice Ruth Bader Ginsburg called “a decision of startling breadth”—the United States Supreme Court broke new ground.
Several years earlier, President Barack Obama introduced the Affordable Care Act, which required all corporations employing more than fifty people to provide minimum essential health coverage, including contraception. Two companies, Hobby Lobby, a chain of craft stores, and Conestoga Wood Specialties, a manufacturer of wood cabinets, balked. While company owners were willing to provide coverage for condoms, diaphragms, sponges, birth control pills, and sterilization surgery, they were unwilling to provide intrauterine devices (IUDs) and morning-after pills, which, because they induce abortions, violate their Christian values.
Before the Hobby Lobby decision, the Supreme Court had considered the religious rights of individuals and religious groups; now, for the first time in history, it was considering the rights of for-profit corporations acting as religious groups. By a vote of five to four, the Supreme Court sided with company owners, arguing that they didn’t have to provide contraception services if they held a “sincere religious belief” that doing so would be wrong.
In a scathing dissent, Ginsburg argued that the Court had just “ventured into a minefield.” Company owners could now impose their religious beliefs on employees who didn’t necessarily share those beliefs. What if companies run by Jehovah’s Witnesses refused coverage for blood transfusions; or Scientologists refused antidepressants; or Muslims, Jews, or Hindus refused medical products containing porcine gelatin, such as anesthetics, intravenous fluids, or pills; or Christian Scientists refused vaccines; or Catholics refused AIDS medications or services for same-sex couples? “The court forgets that religious organizations exist to serve a community of believers,” wrote Ginsburg. “For-profit corporations do not fit that bill.”
The Obama administration was similarly appalled. Josh Earnest, the White House press secretary, said “women should make personal health decisions for themselves, rather than their bosses deciding for them.”
Two other aspects of the Hobby Lobby decision were particularly unsettling. First, the Court had ignored the science. Although executives at Hobby Lobby and Conestoga Wood Specialties had argued that IUDs and the Plan B morning-after pill induce abortions, they don’t. According to research at the Mayo Clinic, National Institutes of Health, and other academic centers, both of these contraceptive devices prevent fertilization, not implantation. Second, and perhaps most disturbing, was the fact that five men on the United States Supreme Court had made a decision for the nation’s women. Dorit Reiss, a professor at the University of California Hastings School of Law, summed it up best. “It’s hard to read this as anything but gendered,” she wrote. “Our monotheistic religions are all the products of times when the equality of women was not at the forefront.”
DESPITE THE LACK OF a specific Supreme Court ruling on faith healing, parents in the United States—beginning in the early 1900s—have been consistently charged, convicted, and sentenced to prison for medically neglecting their children in the name of God. In the mid-1970s, however, the clarity provided by these earlier rulings began to unravel. As a consequence, district attorneys in most states now have a hard time prosecuting parents.
The confusion occurred during the Nixon administration—at a time, ironically, when Americans were most interested in putting an end to child abuse.