Parens Patriae.

The legal principle of parens patriae ("father of the country") operates in cases involving children. The principle refers to the government's duty to act on behalf of a child or mentally ill person. The phrase refers to the "state" as the guardian of minors and incompetent adults and is based on a concept rooted in common law and royal prerogatives. The British Constitution specified that the king in his capacity of "parens patriae" was the universal trustee.

The Decision of the Massachusetts Court
Massachusetts v. David and Ginger Twitchell

The courts have had to weigh conflicting interests, legal precedents, religious tenets and state laws in cases involving sick children, parents who reject conventional medical care because of religious convictions and the state's parens patriae role. In Massachusetts v. David and Ginger Twitchell, the court of appeals overturned the original judgment. The Supreme Judicial Court of Massachusetts based its decision on a state law, remanding the case (i.e., sending it back to the lower court with instructions that allowed for another trial). Read the details of Massachusetts v. David and Ginger Twitchell to see why there are no easy decisions in these cases.

In the first trial, Massachusetts v. David and Ginger Twitchell (1990, Mass.), the state of Massachusetts won. The court determined that the state's interest in protecting children overrode the parents' rights to exercise their religious beliefs. Parents may not endanger their children. Although the Twitchells could have received up to 20 years in prison, the judge placed them on 10 years' probation. They were ordered to take their three remaining sons in for periodic medical checkups with a licensed pediatrician.

The Twitchells appealed the verdict. In the second trial in 1993, Commonwealth v. David R. Twitchell, the Supreme Judicial Court of Massachusetts found " the judgments must be reversed, the verdicts must be set aside, and the cases remanded for a new trial, if the district attorney concludes that such a prosecution is necessary in the interests of justice."

During the original criminal trial, medical authorities said there must have been symptoms, such as fever, vomiting, and severe pain, which would have signaled serious illness. They also testified that corrective surgery for Meckel's diverticulum (the bowel obstruction) has a high success rate.

During his son's illness, David Twitchell had consulted with an official of the Christian Science Church for guidance. The church's "Committee on Publication" in each state is composed of one person whose duty is to explain Christian Science to the community and to give advice to practitioners. After consulting with the Committee on Publication, David Twitchell read a church publication concerning the legal rights and obligations of Christian Scientists in Massachusetts. In it, the General Law of Massachusetts was quoted: "A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a recognized church or religious denomination by a duly accredited practitioner thereof." (G.L. c. 273, 1, as appearing in St.1977, c. 848, 2.)

In the appeal of the Twitchell verdict, lawyers argued that the Massachusetts law passed by the state legislature in 1971 shielded Christian Science parents from charges.

Cases involving ill children, religious convictions and government intervention

  • In the early 1900s in Pennsylvania, despite religious objections, several parents were found guilty of manslaughter for failure to provide their children with medical treatment.
  • Prince v. Massachusetts (1944), a case involving Jehovah's Witness parents, focused on child labor vs. free exercise rights. In their decision, the Supreme Court justices confirmed the right of the government to protect children, even in cases involving religious convictions of their parents:

    "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. Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent's supervision may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case." Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

  • In 1967 a group of Jehovah's Witnesses went to court to fight a state statute that allowed the courts to order medical treatment, including blood transfusions, for children without parental consent. Jehovah's Witnesses believe that the act of receiving blood or blood products prevents a person from resurrection and everlasting life after death. The Jehovah's Witnesses argued:
    1. They have the right to exercise their religious convictions without government intervention,
    2. They were being denied the right to family privacy,
    3. They were being denied equal protection under the law since the state protects the religious liberty and parental rights of all other citizens and other religions,
    4. They have a deep sense of responsibility to their family; thus, they have the right to decide what medical treatment they will accept for their children. The state's highest court concluded that religious freedom does not include the freedom to expose children to ill health or death. The state has a right to intervene.

Similar cases involving other religious affiliations are found in most states.

The 1990 case of Oregon v. Smith, the infamous peyote case, the justices included in their deliberation whether the "compelling interest" test should apply to laws involving child neglect, compulsory vaccination and child labor:

If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S., at 606, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from compulsory military service, see, e. g., Gillette v. United States, 401 U.S. 437 (1971), to the payment of taxes, see, e. g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e. g., Funkhouser v. State, 763 P. 2d 695 (Okla. Crim. App. 1988), compulsory vaccination laws, see, e. g., Cude v. State, 237 Ark. 927, 377 S.W. 2d 816 (1964), to social welfare legislation such as child labor laws, see Prince v. Massachusetts, 321 U.S. 158 (1944), animal cruelty laws, see, e. g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F. Supp. 1467 (SD Fla. 1989 . The First Amendment's protection of religious liberty does not require this.

Employment Div. v. Smith, 494 U.S. 872, 890 (1990).