Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated. Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience. This conference identified the various ways in which law intersects with religion and health care in the United States, examined the role of law in creating or mediating conflict between religion and health care, and explored potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

1.
Law,
Religion,
and
Health
in
America
Harvard
Law
School
May
8,
2015
Jonathan
F.
Will
Associate
Dean
for
Faculty
Development
Associate
Professor
of
Law
Director,
Bioethics
&
Health
Law
Center
Mississippi
College
School
Law
Affiliate
Faculty
–
UMC
Center
for
Bioethics
and
Medical
Humanities
©
2015
Jonathan
F.
Will

2. Cassandra
C
(2015)
— 17-­‐year-­‐old
diagnosed
with
Hodgkin’s
lymphoma
— Refused
chemo
with
estimated
success
rate
of
80-­‐85%
— Death
expected
within
2
years
without
treatment
— Supreme
Court
of
CT
ordered
treatment
over
objection
of
Cassandra
and
her
mother.

3. Cassandra
C
(2015)
— 17-­‐year-­‐old
diagnosed
with
Hodgkin’s
lymphoma
— Refused
chemo
with
estimated
success
rate
of
80-­‐85%
— Death
expected
within
2
years
without
treatment
— Supreme
Court
of
CT
ordered
treatment
over
objection
of
Cassandra
and
her
mother.
— As
of
April
2015,
treatment
successful;
disease
in
remission.

4. General
Aspects
of
Law
of
Medical
Decision-­‐making
— Legal
presumption
that
those
over
the
age
of
eighteen
may
make
decisions
for
themselves,
while
those
seventeen
and
under
may
not;

5. General
Aspects
of
Law
of
Medical
Decision-­‐making
— Legal
presumption
that
those
over
the
age
of
eighteen
may
make
decisions
for
themselves,
while
those
seventeen
and
under
may
not;
— Parents
have
a
constitutional
right
to
make
decisions
on
behalf
of
their
minor
children;

6. General
Aspects
of
Law
of
Medical
Decision-­‐making
— Legal
presumption
that
those
over
the
age
of
eighteen
may
make
decisions
for
themselves,
while
those
seventeen
and
under
may
not;
— Parents
have
a
constitutional
right
to
make
decisions
on
behalf
of
their
minor
children;
— This
parental
right
is
not
unlimited;
parents
are
not
permitted
to
imperil
the
lives
of
their
children;
and

7. General
Aspects
of
Law
of
Medical
Decision-­‐making
— Legal
presumption
that
those
over
the
age
of
eighteen
may
make
decisions
for
themselves,
while
those
seventeen
and
under
may
not;
— Parents
have
a
constitutional
right
to
make
decisions
on
behalf
of
their
minor
children;
— This
parental
right
is
not
unlimited;
parents
are
not
permitted
to
imperil
the
lives
of
their
children;
and
— When
confronted
with
the
situation
where
a
parent
may
not
refuse
life-­‐saving
medical
treatment
on
behalf
of
the
child,
families
have
asserted
that
the
decision
is
being
made
by
a
minor
who
is
mature
enough
to
have
her
own
decision
respected.

8. PresumpBons
— Adults:
presumed
competent
to
make
decisions
for
themselves
— Minors:
presumed
to
lack
the
maturity,
experience,
and
capacity
for
judgment
necessary
to
make
life’s
difficult
decisions
— Parham
v.
J.R.,
442
U.S.
584,
602
(1979).

9. Who
Decides
for
Minors?
— Parents
have
a
fundamental
right
to
raise
their
children
as
they
see
fit.
Troxel
v.
Granville,
530
U.S.
57,
65-­‐66
(2000)
— This
includes
religious
upbringing.
Wisconsin
v.
Yoder,
406
U.S.
205
(1972)
— Parents
have
what
children
lack
in
maturity
and
experience,
and
historically
it
has
been
recognized
that
natural
bonds
of
affection
lead
parents
to
act
in
their
best
interests.
Parham
v.
J.R.
442
U.S.
584,
602
(1979)

10. Prince
v.
MassachuseHs,
321
US
158
(1944)
— Custodial
Aunt
takes
her
niece
out
to
distribute
Jehovah’s
Witness
pamphlets
— Charged
with
violating
State’s
child
labor
laws.
— Aunt
claims
1st
and
14th
Amend.
Rights
in
challenging
the
statute
— Supreme
Court
says
tough
luck

11. Prince,
321
U.S.
at
170
— 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

12. Medical
Context
— What
rises
to
level
of
Prince-­‐like
Martyrdom?
— Life
Threatening
Exception:
State
will
intervene
as
parens
patriae
where
parents’
decision
puts
child’s
life
at
risk

13. Statutory
ExcepBons
— Status:
a
minor
who
is
homeless,
married
or
divorced,
has
borne
a
child,
is
pregnant
or
has
been
pregnant,
has
graduated
from
high
school,
is
living
separately
and
independently,
or
is
a
member
of
the
armed
forces
is
permitted
to
make
medical
decisions.
(like
emancipation)

14. Statutory
ExcepBons
— Status:
a
minor
who
is
homeless,
married
or
divorced,
has
borne
a
child,
is
pregnant
or
has
been
pregnant,
has
graduated
from
high
school,
is
living
separately
and
independently,
or
is
a
member
of
the
armed
forces
is
permitted
to
make
medical
decisions.
(like
emancipation)
— Treatment:
venereal
disease,
drug
or
alcohol
dependency,
sexual
abuse,
mental
health
treatment,
seeking
contraception

15. Statutory
ExcepBons
— Status:
a
minor
who
is
homeless,
married
or
divorced,
has
borne
a
child,
is
pregnant
or
has
been
pregnant,
has
graduated
from
high
school,
is
living
separately
and
independently,
or
is
a
member
of
the
armed
forces
is
permitted
to
make
medical
decisions.
(like
emancipation)
— Treatment:
venereal
disease,
drug
or
alcohol
dependency,
sexual
abuse,
mental
health
treatment,
seeking
contraception
— Nothing
to
do
with
maturity

16. AborBon
— Planned
Parenthood
v.
Danforth:
States
are
not
permitted
to
require
pregnant
minors
to
obtain
parental
consent
— Bellotti
v.
Baird:
If
States
wish
to
require
parental
consent
or
notification,
must
also
provide
judicial
bypass

17. BelloV,
443
U.S.
at
625.
— A
pregnant
minor
is
entitled
to
such
a
proceeding
to
show
either:
(1)
that
she
is
mature
enough
and
well
enough
informed
to
make
her
abortion
decision,
in
consultation
with
her
physician,
independently
of
her
parents’
wishes;
or
(2)
that
even
if
she
is
not
able
to
make
this
decision
independently,
the
desired
abortion
would
be
in
her
best
interests.

18. Mature
Minor
Doctrine
— Theory:
if
a
minor
has
sufficient
competence
to
make
an
autonomous
decision,
that
decision
should
be
respected
as
such.
In
other
words,
mature
minors
are
no
longer
in
need
of
protection
from
their
parents
or
the
State.

19. Are
There
Such
Minors?
— Empirical
research
performed
shortly
after
pregnant
minors
extended
decision-­‐making
authority
in
abortion
context
— Grisso
&
Vierling
(1978);
Weithorn
&
Campbell
(1982);
Scherer
&
Reppucci
(1988)

20. Findings
from
Studies
— Generally
support
early
work
performed
by
Jean
Piaget
— minors
aged
fourteen
and
older
demonstrate
a
level
of
competency
equivalent
to
that
of
adults
— possess
the
cognitive
capability
to
reason,
understand,
appreciate,
and
articulate
decisions
comparable
to
young
adults
— Studies
have
been
critiqued
based
on
white
middle-­‐class
subjects;
narrow
definition
of
competency;
psychosocial
aspects
of
adolescence

21. Cardwell
v.
Bechtol
(Tenn
1987)
— Whether
a
minor
has
the
capacity
to
consent
to
medical
treatment
depends
upon
the
age,
ability,
experience,
education,
training,
and
degree
of
maturity
or
judgment
obtained
by
the
minor,
as
well
as
upon
the
conduct
and
demeanor
of
the
minor
at
the
time
of
the
incident
involved.
Moreover,
the
totality
of
the
circumstances,
the
nature
of
the
treatment
and
its
risks
or
probable
consequences,
and
the
minor’s
ability
to
appreciate
the
risks
and
consequences
are
to
be
considered

22. Ethics
of
Medical
Decision-­‐Making
— Rise
of
Autonomy:
Kantian
respect
for
self-­‐
determination
— Autonomous
Authorization:
personal
self-­‐
governance;
personal
rule
of
the
self
by
adequate
understanding
while
remaining
free
from
controlling
interferences
by
others
and
from
personal
limitations
that
prevent
choice

23. Dennis
Lindberg
(2007)
— 14
Years
Old
diagnosed
with
leukemia
— 70-­‐75%
chance
of
success
with
chemo
+
transfusions
— Agreed,
and
began
chemo,
but
without
transfusions.
— Became
severely
anemic;
persisted
in
refusals
— Religious
leaders/aunt
prevented
him
from
seeing
nonbelievers.

24. Dennis
Lindberg
(2007)
— 14
Years
Old
diagnosed
with
leukemia
— 70-­‐75%
chance
of
success
with
chemo
+
transfusions
— Agreed,
and
began
chemo,
but
without
transfusions.
— Became
severely
anemic;
persisted
in
refusals
— Religious
leaders/aunt
prevented
him
from
seeing
nonbelievers.
— Judge
held
Dennis
to
be
mature
enough
to
make
decision.
— Dennis
died
three
weeks
after
initial
diagnosis.

25. Watch
Tower
Teachings
— avoid
independent
thinking;
— abide
unquestioningly
to
the
tenets
of
the
faith
prescribed
by
the
governing
body;
— independent
thinking
viewed
as
sinful
–
evidence
of
disloyalty
to
God

26. Lessens
from
Canada
— “a careful and comprehensive evaluation of the
maturity of the adolescent will necessarily have to be
undertaken to determine whether his or her decision is
a genuinely independent one.”
— Judges
ought
to
consider:
“whether the adolescent’s
views are stable and a true reflection of his or her core
values and beliefs” as well as “the potential impact of
the adolescent’s lifestyle, family relationships and
broader social affiliations on his or her ability to
exercise independent judgment.”
A.C.
v.
Manitoba
(Director
of
Child
and
Family),
[2009]
2
S.C.R.
181,
at
par.
95-­‐96
(Can.
2009).

27. Jonathan
Will
will@mc.edu
SSRN:
http://ssrn.com/author=1298344
Faculty
Bio:
http://law.mc.edu/faculty-­‐staff/faculty/will/
601.925.7195
151
East
Griffith
St
Jackson,
MS
39201