In re Green

• Decision Date: 28 June 1972
• Citation: 292 A.2d 387,448 Pa. 338
• Parties: In re Ricky Ricardo GREEN. Appeal of Ruth GREEN.
• Court: Pennsylvania Supreme Court

292 A.2d 387

448 Pa. 338

In re Ricky Ricardo GREEN. Appeal of Ruth GREEN.

Supreme Court of Pennsylvania.

June 28, 1972.

Elliot B. Platt, Community Legal Services Philadelphia, for appellant.

J Shane Creamer, Atty. Gen., Harrisburg, Dante Mattioni, Deputy Atty., Gen., Michael Minkin, Asst. Atty. Gen., Philadelphia for appellee, Dr. Robert W. Saunderson, Jr.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

The Director of the State Hospital for Crippled Children at Elizabethtown Pennsylvania, filed a 'petition to initiate juvenile proceedings' under The Juvenile Court Law, Act of June 2, 1933, P.L. 1433, § 1 [448 Pa. 340] et seq., as amended, 11 P.S. § 243 et seq., which sought a judicial declaration that Ricky Ricardo Green (hereinafter 'Ricky') was a 'neglected child' within the meaning of the Act and the appointment of a guardian. After an evidentiary hearing, the Court of Common Pleas, Family Division, Juvenile Branch, of Philadelphia dismissed the petition. On appeal, the Superior Court unanimously reversed and remanded the matter for the appointment of a guardian. Green Case, 220 Pa.Super.Ct. 191, 286 A.2d 681 (1971). We granted allocatur.

Ricky was born on September 10, 1955, to Nathaniel and Ruth Green. He lives with his mother as his parents are separated and the father pays support pursuant to a court order. Ricky has had two attacks of poliomyelitis which have generated problems of obesity and, in addition, Ricky now suffers from paralytic scoliosis (94% Curvature of the spine).

Due to this curvature of the spine, Ricky is presently a 'sitter,' unable to stand or ambulate due to the collapse of his spine; if nothing is done, Ricky could become a bed patient. Doctors have recommended a 'spinal fusion' to relieve Ricky's bent position, which would involved moving bone from Ricky's pelvis to his spine. Although an orthopedic specialist testified, 'there is no question that there is danger in this type of operation,' the mother did consent conditionally to the surgery. The condition is that, since the mother is a Jehovah's Witness who believes that the Bible proscribes any blood transfusions which would be necessary for this surgery, ^[1] she would not consent to any blood transfusions. Initially, we must recognize that, while the operation would be beneficial, there is no evidence that Ricky's life is in danger or that the operation must be performed immediately. Accordingly, we are faced with the situation of a parent who will not consent to a dangerous operation on her minor son requiring blood transfusions solely because of her religious beliefs.

By statute, a 'neglected child'--'a child whose parent . . . neglects or refuses to provide proper or necessary . . . medical or surgical care' ^[2] --may be committed 'to the care, guidance and control of some respectable citizen of good moral character . . .' ^[3] appointed by the court. The guardian appointed by the court may, with the court's approval, commit the child to a 'crippled children's home or orthopaedic hospital or other institution' for treatment. ^[4] Thus, it has been held that a child whose parent views smallpox vaccination as 'harmful and injurious' may be considered a 'neglected child.' Marsh's Case, 140 Pa.Super.Ct. 472, 14 A.2d 368 (1940). Cf., In re Rinker, 180 Pa.Super.Ct. 143, 117 A.2d 780 (1955). On the other hand, In re Tuttendario, 21 Pa.Dist. 561 (Q.S.Phila.1912), held that surgery on a seven-year-old male to cure rachitis would not be ordered over the parents' refusal due to fear of the operation. While these statutes could be construed to cover the facts of this appeal, we cannot accept the Commonwealth's construction if it abridges the Free Exercise clause of the First Amendment.

Almost a century ago, the United States Supreme Court enunciated the twofold concept of the Free Exercise clause: 'Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.' Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244 (1878). Accord, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Cantwell v. Connecticut, 310 U.S. 296, 303--04, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). Thus, it was stated in Prince v. Massachusetts, 321 U.S. 158, 166--67, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944): 'But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637. And neither rights of religion nor rights of parenthood are beyond limitatiion. Acting to guard the general interest in youth's well being, the state as Parens patriae may restrict the parent's control by requiring school attendance (footnote omitted), regulating or prohibiting the child's labor (footnote omitted) and in many other ways (footnote omitted). Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds (footnote omitted). The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (footnote omitted). The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction.'

On the other hand, the United States Supreme Court recently stated, 'to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.' Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). 'The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.' Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963). Without appearing callous, Ricky's unfortunate condition, unlike polygamy, vaccination, child labor and the like, does not pose a substantial threat to society; in this fashion, Pierce and its progeny are readily distinguishable.

When dealing with Adults requiring medical attention who voice religious objections, other jurisdictions have come to varying conclusions depending, in large measure, upon the facts of each case. See, generally, Annot., 9 A.L.R.3d 1391 (1966). Some courts have found medical treatment to be properly ordered by the public authority despite the adult's religious beliefs when his or her life hangs in the balance. Thus, it was held in Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000 (C.A.D.C.1964), rehearing denied, 331 F.2d 1010, cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964), that a blood transfusion could be ordered for an adult Jehovah's Witness whose life was immediately endangered. While a similar result was reached in United States v. George, 239 F.Supp. 752 (D.C.Conn.1965), that court dissolved the order several days later when the patient was no longer In extremis and could decide whether the allow further necessary transfusions. The Supreme Court of New Jersey likewise ordered blood transfusions for a pregnant Jehovah's Witness in order to save the life of the mother and unborn child. Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985, 84 S.Ct. 1894, 12 L.Ed.2d 1032 (1964). Cf., Collins v. Davis, 44 Misc.2d 622, 254 N.Y.S.2d 666 (1964). On the other hand, the Illinois Supreme Court reversed an ordered blood transfusion where the emergency patient had no children and notified the doctor beforehand that blood transfusions violated her religious beliefs. In re Brooks' Estate, 32 Ill.2d 361, 205 N.E.2d 435 (1965). See, also, Nemser Petition, 51 Misc.2d 616, 273 N.Y.S.2d 624 (1966); Erickson v. Dilgard, 44 Misc.2d 27, 252 N.Y.S.2d 705 (1962).

Turning to the situation where an adult refuses to consent to blood transfusions necessary to save the life of his infant son or daughter, other jurisdictions have uniformly held that the state can order such blood transfusions over the parents' religious objections. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952); Morrison v. State, 252 S.W.2d 97 (C.A.Kansas City, Mo., 1952); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962); Hoener v. Bertinato, 67 N.J.Super. 517, 171 A.2d 140 (1961); In re Santos, 16 A.D.2d 755, 227 N.Y.S.2d 450, appeal dismissed, 232 N.Y.S.2d 1026 (1962); Application of Brooklyn Hospital, 45 Misc.2d 914, 258 N.Y.S.2d 621 (1965); In re Clark, 21 Ohio Op.2d 86, 185 N.E.2d 128 (C.P.Lucas 1962). Cf., Mitchell v. Davis, 205 S.W.2d 812 (Texas C.C.A.1947). See, generally, Annot., 30 A.L.R.2d 1138 (1953). The fact that the child was over twenty-one made no difference to the New Jersey Supreme Court in John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670 (1971), which ignored the mother's religious objections.

In a somewhat different posture, the United States District Court for the Western District of Washington entertained a class action brought on behalf of all Jehovah's Witnesses in the...