This week TruTV is reprising the 2008 Oregon trial of Carl and Raylene Worthington for criminal negligence in the death of their 22-month-old daughter (from pneumonia). The Worthingtons are “Followers of Christ,” a religious sect that practices faith-healing and eschews medical treatment.

TruTV is covering this as a “religious-freedom vs. child welfare” issue. I, however, see it as another case of our twisted family law system.

Oregon Laws

Apparently, in the late 1990s an Oregon law protecting people’s right to practice faith-healing when it comes to children was struck down. I understand the impulse: the state wanted to protect children, who by definition cannot make their own medical-treatment choices.

What troubles me about the Worthington prosecution isn’t the religious-freedom implications, though. Clearly, society cannot let a person justify all sorts of bad behavior under the guise of religious practices. We can’t permit female circumcision, for example. Freedom of religion, like freedom of speech, is not absolute.

Before I proceed, I would also like to point out that Oregon is one of the few states permitting assisted suicide (under its Death with Dignity Act). (I will return to this in a moment.)

I would also ask you to keep in mind the ongoing Garrido investigation near San Francisco, California – a situation in which a man enslaved and murdered children with impunity for about 20 years. Since “a man’s home is his castle” in California, as in most states, I assume Oregon’s laws concerning privacy and domesticity also respect a family’s privacy to this extent. And if one of the Worthingtons themselves had died at home for lack of medical treatment, no charges would have been brought (or would they?).

Death with Dignity

In one way I suppose I agree with TruTV about the religious-freedom implications of the Worthington case:  I do not want the government to tell me what to think or believe. The Worthingtons ought to have the right to believe they must trust God and demonstrate that trust by refusing medicine. Death comes to us all – most of us can’t choose the time of our death.

In Oregon, the Death with Dignity law attempts to enable some people to choose the time of their deaths. Apparently the legislature there concluded that the relationship between doctor and patient is a private one in which the state should not interfere. If a patient and a doctor agree that an illness is terminal, the patient should be able to end the suffering.

I wonder: Would the Worthingtons have been charged with crimes if they had found a pediatrician who would examine their child and then tell them the prognosis for recovery with and without medical treatment – but then who respected their right to choose no treatment? Would this consultation have been privileged? Would the physician have lost his or her license?

How is this different from assisted suicide? Well, first of all it was a child whose life was at stake, someone who could not make a decision for herself.

But how many seriously ill people also seek suicide when their judgment is clouded by pain or pain-killers? How often do family members ask doctors to “pull the plug” on comatose people who also cannot make a decision for themselves?

A Child’s Death

Who is ultimately responsible when a child dies, either in a home or in a hospital? Is it the parents?

Had the Worthingtons hospitalized their child for pneumonia treatment, would they have been guaranteed that the child would survive? According to the World Health Organization, the answer is NO. Even in the US, the CDC reports the infant mortality rate is increasing, apparently due to poor prenatal care and low birth weight. (Surely no one is going to mandate prenatal care for pregnant women. Some women don’t even know when they’re pregnant. I think I even saw a TruTV show about young women who gave birth without realizing they were pregnant – girls who gave birth in the high school restroom, for example.)

Given the Worthington’s beliefs concerning doctors, I’m guessing they used the services of a midwife in their home to birth the child. And apparently midwives do not require licenses in Oregon. So, I also assume they used the services of a midwife from their congregation, in other words, a midwife who did not have training in issues of prenatal care and nourishment. Consequently, I suspect that the child was very small at birth, a contributing factor to her inability to survive the pneumonia. (The lump on her throat did not apparently kill her, and the photos TruTV broadcast of this smiling child do not show a large lump; instead it looks like fat. While the lump may have constricted her trachea, it isn’t clear that the lump’s size was completely observable.)

So, what I don’t understand is how the State of Oregon can permit unlicensed midwives to practice but still hold parents responsible for children’s deaths. What happens when a midwife presides over a stillbirth or a “blue baby?” Is someone prosecuted then?

The sad fact is that children die, even when they are loved and cared for to the best of their parents’ ability. Children run into the street and are hit by cars. Children fall from tree branches and break their necks. Children die of the flu. Children even die in hospitals while under a doctor’s care.

The State of Oregon must have been aware of the Followers of Christ. It must have known there were children among the congregation. It must have issued a birth certificate when the Worthingtons’ baby was born. But, instead of intervening in the family in advance of the illness, the state waited until the child died and then charged the parents with manslaughter.

This is my mantra: American authorities always fail to intervene in high-risk family situations.

When tragedies occur the state’s attorneys swoop down – but only after the fact, even when there’s clear evidence that vulnerable people are being mistreated by their putative caregivers.

The problem is the law.

Privacy Rights

Above all other rights, Americans value their privacy rights. It doesn’t matter where you stand in the spectrum of political opinion, every citizen understands that privacy is fundamental to all the rights in the Bill of Rights (thanks again to Cornell University’s excellent website). (BTW: There is no expressed right to privacy in the Constitution.) BTW: Oregon’s Dept. of Human Services also has a very strict policy concerning privacy of their “clients.”

I am no different. I value my privacy. The problem I have – and we all have – is balancing respect for privacy with justice.

How many times do we have to see the aftereffects of state-mandated protection of adult privacy rights? Isn’t that what Oregon’s midwife law is all about, protecting an adult’s right to give birth without a doctor?

How can it be possible that a man in California could abduct little girls, rape them, enslave them, and force them to bear his children? If he hadn’t decided to spill the beans himself, no one would ever have done a thing about Garrido. Law enforcement was several times alerted to Garrido’s criminal behavior, but no one ever asked for permission to enter the home and look around. In several instances, there was “probable cause,” but law enforcement still did nothing. (At least once, a woman charged him with rape but he was never arrested, and at least once neighbors complained about young girls living in Garrido’s back yard.)

How can a state justify assisted suicide but punish people who avoid doctors? How hypocritical for the State of Oregon to permit people to practice their religion and produce children who are doomed to endure childhood illnesses and then try to throw the parents in jail!

What’s My Answer?

I’m afraid I have to say that freedom of thought, speech, and religion is so important that I think the state must never interfere in the practice of religion unless it violates the law or the rights of someone else.

In this case, there is no right to medical care only a right not to go to a doctor. Children have no rights under the Constitution. Children are only “protected by the law” from intentional harm. There is no requirement other than that parents do not intentionally maltreat their children.

If a parent doesn’t want their child to have braces on their buck teeth, that’s their right. If a parent doesn’t want their child to eat meat, they don’t have to feed their children meat. If a state objects, the state can provide information about the possible consequences of the way the parents are raising their children, but a state should not try to mandate parental behavior when it is within reason. I realize some people believe that religion is inherently unreasonable, but the fact is that a belief system is the product of rational thought, even when it is erroneous.

However, a state should license midwives and ensure that they know how to advise women on proper prenatal nutrition and how to birth a child without traumatizing the baby, thus causing lifelong problems. The state should work with religious leaders to prepare training and licensing programs that do not infringe on religious beliefs.

State health agencies should be aware of families that do not wish to use medicine. Children in those families should be known. If possible, physicians should have limited access to those children with parental permission, and they should tell the parents when they detect a serious health problem in a child. Only if the parent is fully informed can the parent make a decision about the child’s health. There is no evidence that the Worthingtons knew their child would die.

Unfortunately, I think I have to say that if a parent decides not to give medical treatments to a child – knowing the risks – we have to leave the family alone. There is no law mandating medical treatment. Even the AMA claims a physician’s right to deny treatment.

The line between state-mandated religion and freedom is too thin. I don’t think any American would want children to be entirely under state control even if it is supposedly “for their own good,” because each American defines “good” differently.

The best we can do is educate citizens and help them to make wise decisions about their children’s welfare.

The Worthington Jury

The Worthingtons should never have been indicted. If indicted, a judge should have dismissed the charges. A key component of any crime is intent, and there is absolutely no evidence of intent to harm the child. On the contrary, these parents demonstrated nothing but love for their child and their God. The trusted in God.

If the case had been brought before a jury, at the conclusion of the prosecution case when the defense petitioned the judge to dismiss the charges, that’s what the judge should have done.

A jury should never, never have been asked to decide this case. Any juror is going to side with the state. We all feel responsible for children. We fear for children.

Or do we? How often do teachers keep their mouths shut when they see that their students are victims of abuse? How often would you be willing to call the cops on a neighbor you suspected of abuse? Wouldn’t you be afraid of a lawsuit?

American law doesn’t know what to do to protect children. The solution is not in the courts.