Developing Amish medical neglect case in New York

There are reports coming out of Watertown, New York, that an Amish couple are squaring off with child protection authorities over their purported medical neglect of their son. One-year old Eli Hershberger apparently suffers from a potentially fatal condition known as Tetralogy of Fallot. Open heart surgery might correct the condition, but the boy's parents, Barbara and Gideon Hershberger, are refusing to consent to it, apparently on religious grounds. WYNF-TV, the local Fox affiliate, has an account of the case available here.

Because my last two books have been about the Amish and the law (The Yoder Case) and religion-based medical neglect of children (When Prayer Fails), I have a particular interest in this case, and I will be following its development closely.

The Cleveland Clinic (whose guidelines I quote directly below) provides a nice, straightforward summary of the Amish stance toward medical treatment -- one that squares with my understanding. Obviously, these beliefs/practices can vary from community, but there are some general rules of thumb:

• "The Amish believe in folk medicine. . . They believe that a higher level of medical science is simply not necessary. However, they also believe that good health (mental and physical) is a gift from God, and needs to be taken care of. They believe that medicine helps, but God heals.
• "The Amish are very careful medical consumers. If an Amish person is seeking medical treatment, it indicates that it is an emergency or a very important concern.
• "The Amish religion does not forbid its people to seek modern medical care. When necessary, the Amish can have surgical procedures, dental work, anesthesia, or blood transfusions. Organ transplants are permitted, except for the heart. The Amish believe the heart is the soul of the body. (Exception: Pediatric patients who have not been baptized can receive a heart transplant.)"

So it seems that the sticking point for the Hershbergers is not medical care per se, but rather invasive treatment for the heart. From what I have read about Tetralogy of Fallot -- a condition that includes a hole in the ventricles -- this could be a significant initial procedure, possibly followed by subsequent surgeries to complete the repair.

It thus appears that there is a legitimate religious liberty issue claim being raised here by the parents: to treat their son's heart surgically, they will have to violate one of the tenets of their religious faith. However, that interest will have to be balanced against the state's interest in safeguarding the health and welfare of the child. In cases of this type, the latter usually prevails; generally, the courts will err on the side of preserving the life of the child.

At first blush, it seems that a key issue in the case will be the seriousness of Eli's ailment, and his chances for survival without surgery. The more dire the prognosis, the more likely the court will be to force his parents to consent to treatment.

Analysis of Beagley case in The Oregonian

I've expanded and developed some of my analysis of the legal issues at play in the Beagley faith-healing case in Oregon. It appears as an 0p-ed in today's Oregonian, accessible here.

I've reviewed some of the relevant case law in Oregon, and I'm just not yet convinced that there is a "mature minor" doctrine recognized in the state, and that it would be applicable in this case. In my Oregonian piece, I quote a 2006 juvenile court decision in which the court found that "the law in this state is that somebody under the age of 18 is a minor and therefore does not have the legal capacity to make this kind of a medical decision." Coming from a lower court, this is not binding judicial precedent, but it seems to indicate that prosecutors would not be blocked from filing charges against Beagley's parents.

Religion News Service interview

Earlier this week, I had the good fortune to speak with Religion News Service's Kevin Eckstrom about the recent faith healing cases in Oregon and Wisconsin. That conversation is part of RNS's weekly "Ten Minutes With . . ." series, and it's accessible here.

Another faith healing death in Oregon

The Oregonian is reporting that yet another youngster in the Followers of Christ Church has died after failing to receive conventional medical treatment. Sixteen-year old Neil Jeffrey Beagley of Oregon City -- the uncle of Ava Worthington, who perished earlier this year from religion-based medical neglect -- died earlier this week from complications from a blockage in his bladder. The state's deputy medical examiner, who reviewed the findings of Beagley's autopsy, has said that the condition could have treated fairly easily, had the youngster been seen by a physician. The paper's full account of Beagley's death is available here.

It's unclear whether charges will be filed against Beagley's parents in this case. At issue is ORS 109.640, which reads as follows: "A minor 15 years of age or older may give consent to hospital care, medical or surgical diagnosis or treatment by a physician licensed by the Oregon Medical Board, and dental or surgical diagnosis or treatment by a dentist licensed by the Oregon Board of Dentistry, without the consent of a parent or guardian." From their public comments, it appears that authorities in Oregon might interpret this statute broadly to mean that Beagley had the right to control all of his medical treatment and thereby refuse medical treatment on his own.

I haven't had time to study this particular law very closely, but my first reaction is that it would not necessarily preclude prosecution of the parents. First, the law seems clearly intended to make the benefits of medical treatment more available to minors; it would seem backwards to interpret it as a means of making that treatment less available to them. Second, nowhere does the statute mention that minors are competent to decide that they should not receive medical treatment. The legislature could have explicitly drafted the law that way, but it did not.

The arguments that already percolating in this case remind me somewhat of Commonwealth v. Nixon, a Pennsylvania case that involved a 16-year old girl who died from untreated diabetes. The parents in that case (who were charged with involuntary manslaughter) argued that Shannon was a "mature minor" capable of choosing her own best course of treatment -- which she determined to be prayer. The Supreme Court of Pennsylvania found that argument to be insufficient, and the parents' convictions were allowed to stand.

Pennsylvania law, like that in Oregon, creates create "specific exceptions to the general rule of incapacity," as the state high court put it. (The age mentioned in the relevant Pennsylvania laws is higher, though: 18 and up.) But the court found in Nixon that "the statutes do not . . . show a legislative intent that any minor, upon the slightest showing, has capacity either to consent to or to refuse medical treatment in a life and death situation." In its opinion, the court cited another Pennsylvania case (Commonwealth v. Cottam), which held that "even if [the minor victims] were considered mature enough to freely exercise their religious beliefs, it does not dispel [the parents'] duty while the children are in their care, custody, and control to provide them with parental care, direction and sustenance."

I don't want to suggest, however, that Nixon is exactly analogous to the emerging Beagley case in Oregon. The circumstances of the deaths are comparable, but I'm still not entirely sure if the relevant laws are.

Columbus Dispatch article on faith healing cases

Meredith Heagney of the Columbus Dispatch has written an insightful article on the latest faith healing prosecutions. Her reporting can be found here.

Protect Children or Religious Freedom?

I've also written a new piece tying together the legal issues raised by recent faith healing cases and the ongoing dispute involving members of the FLDS in Texas. Published by "On Faith," which is run jointly by The Washington Post and Newsweek, it is available here.

When Prosecutors Grapple With Prayer

I've recently contributed another piece on faith healing and the law to "Sightings," which is distributed by the Martin Marty Center at the University of Chicago Divinity Center. It can be accessed here.

Court-appointed attorney for Dale Neumann

Dale Neumann, facing charges of second-degree reckless homicide charges for his alleged role in the death of his daughter on Easter Sunday, will not have to pay for his legal representation. On Wednesday, May 7, Marathon County Circuit Court Judge Vincent Howard ruled that Neumann lacked the financial resources to fund an adequate legal defense to the felony charges, which stem from Neumann’s decision to treat his daughter’s fatal illness with prayer instead of secular medicine.

Up to this point, Neumann and his wife, Leilani, had been represented by Wausau attorney Gene Linehan. Citing the defendant’s apparently tenuous finances, Howard appointed Wausau attorney Jay Kronewetter to replace Linehan in representing Dale Neumann. (Kronewetter has yet to accept the appointment.)

The indigency hearing before Howard provided a revealing glimpse of the Neumanns’ finances. Of particular note were their assets, which include two separate homes in Marathon County and two vehicles.

In his testimony, Dale Neumann stated that he and his wife purchased a home in the town of Weston (located a few miles southeast of Wausau) in September 2005. That residence cost $290,000, he testified. Two years later, in the fall of 2007, the couple refinanced their mortgage on that home and purchased a second home in Weston at a cost of $310,000. (For the area, these were relatively expensive homes. According to one estimate, the median value of houses in Marathon County in 2005 was $133,000.)

Marathon County Corporation Counsel Scott Corbett told the court that the Neumanns currently possess about $110,000 of equity in the two properties. Roughly half of that has been applied toward the property bond that the judge previously had imposed on the couple.

For all of these assets, the Neumanns appear to be cash-poor – and this is primarily why Howard determined that Dale Neumann merited a court-appointed attorney. Neumann told the court that the couple had only $86 in their personal savings account in Wisconsin, as well as $25 in another account in California. They also possess $1,500 in a business checking account, he testified.

Howard’s decision to appoint counsel for Neumann might have been based on the defendant’s reported income, which has been negligible since he and his wife began operating their business, Monkey Mo Coffee. He testified that neither he nor his wife had reported income in 2007 from the coffee shop.

"This Was a Test of Faith"

Thanks to the recent release of reports assembled by the Everest Metro Police Department, a more complete picture is emerging of the religious and cultural milieu of Dale and Leilani Neumann, the Weston, Wisconsin, parents who recently were charged with second-degree reckless homicide for their alleged role in the death of their 11-year old daughter. Though still fragmented and incomplete, this picture provides some clues as to the development of the couple’s religious doctrines and practices, particularly as they relate to the power of prayer to heal sickness or injury.

Police reports shed light, for instance, on the Neumanns’ relationship with Randall and Althea Wormgoor, the couple who ultimately called 911 in a failed effort to save Kara Neumann’s life on Easter Sunday. What Randall Wormgoor told police in the aftermath of Kara’s death illuminates the genesis of the Neumanns’ religious beliefs, and how those beliefs raised serious concerns among even their closest friends.

On March 24, 2008, the day after Kara’s death, the Wormgoors met with Dennis Halkoski, a detective in the Everest Metro Police Department. It seems unlikely that police seriously considered pursuing criminal charges of any kind against the couple; they apparently were unaware of the seriousness of Kara’s illness until her final moments alive, and at that point they took aggressive action to save her life by calling 911, a step that the Neumanns themselves were unwilling to take. Police interviewed the couple primarily to obtain additional background on the conduct of Dale and Leilani Neumann in the period leading up to the girl’s death.

Randall Wormgoor explained to Halkoski that he and his wife met the Neumanns a few years earlier, when both families lived in the Modesto, California, area, where they were active in the charter school movement. At around that time, Wormgoor apparently was at loose ends, professionally and financially; he took a leave of absence from his job as a social worker and put the family’s home up for sale. After meeting the Wormgoors, Dale Neumann moved his family to Wisconsin and purchased the Monkey Mo Coffee shop in the village of Weston, located just outside the city of Wausau. Neumann eventually approached Randall with a business proposition: if they followed the Neumanns’ lead and moved their family to Wisconsin, the Wormgoors could manage a second Monkey Mo location. Although the dates remain murky, the couple apparently took Neumann up on the offer in December of 2007. Randall Wormgoor told police that he and his wife had worked for and trained with the Neumanns – without pay – for approximately two months early in 2008. They also lived in a property owned by the Neumanns.

It wasn’t all business; there was a distinctly religious dimension to their relationship as well, Wormgoor told police. The Neumanns led a Bible study group that met at the coffee shop, and, perhaps not surprisingly, the Wormgoors became involved in it. This was not a large gathering – Wormgoor counted five participants beyond him, his wife, and the Neumanns – and it does not seem that it adhered to the tenets or practices of any particular “organized” church. (Many observers of the Neumann case have scoffed at the alleged lack of religious legitimacy of this kind of Bible-study gathering, but it represents a relatively common occurrence among Christians who are dissatisfied with mainstream churches.)

Both the religious and commercial dimensions of the Wormgoors’ relationship with the Neumanns soured relatively quickly. Approximately two months after his family’s arrival from California, Randall Wormgoor had “sought to break ties with the Neumanns,” in large part because he had realized “that his business philosophy and that of Dale Neumann clashed and also . . . their religious beliefs clashed,” according to the police report. The Neumanns’ beliefs on the origins of sickness, and of the proper treatment of it, were of particular concern to Wormgoor. In the words of police report, “one of the things that did concern him that was mentioned at the bible studies by Dale Neumann . . . is that Mr. Neumann stated that physical illness in an individual was due to sin and the only way to cure that illness was to ask for forgiveness and to pray that God would cure you from that illness.”

Even though there was a breach between the families, Leilani Neumann called Althea Wormgoor on Easter Sunday to discuss Kara’s worsening condition. According to the police report, Leilani told Althea on that date that Kara “had been weak and tired and showed symptoms of an illness for approximately three weeks.” The Neumanns were concerned about their daughter that they had summoned the Wormgoors to their home for a prayer session. Adhering steadfastly to their religious beliefs, the Neumanns resolved not to rely on medical treatment, even though it appeared that Kara’s condition was deteriorating. “Both Randall and Althea Wormgoor said that it was quite obvious that the Neumanns had no intention of seeking medical help for their daughter,” in the words of the police report, “and that this was a test of faith for the Neumanns and that through prayer would be healed.”

When they arrived at the Neumanns’ home on Easter Sunday, the Wormgoors – putting aside their recent theological and business differences – acceded to Kara’s parents’ wishes and prayed for her recovery. But, after observing the girl themselves and hearing more about her illness from her parents, they quickly determined that such treatment through prayer would not be sufficient to restore her health. After Kara stopped breathing, it was Randall Wormgoor, not the girl’s parents, who dialed 911 to summon emergency medical personnel.

"People of faith"

Last week, Marathon County Circuit Court Judge Vincent Howard issued a gag order to all of the parties directly involved in the prosecution of Dale and Leilani Neumann, the Weston, Wisconsin, parents who were charged with second-degree reckless homicide for their alleged roles in the death on Easter Sunday of their 11-year old daughter, Kara. With the Neumanns no longer able to speak publicly about their case, police reports continue to provide perhaps the best window into how the couple’s religious ideology and practices, particularly those relating to healing, shaped their response to Kara’s fatal illness.

Among the documents publicly released last week were reports from the Everest Metro Police Department, which conducted extensive interviews as part of its investigation of Kara’s death. The summary of the Captain Scott Sleeter’s interview with Dale Neumann is especially revealing. In it, Neumann describes how he and his wife are “people of faith” who turned to the Christian scriptures rather than secular medicine when Kara fell ill with what proved to be diabetic ketoacidosis.

Sleeter interviewed Dale Neumann on the evening of March 23, just hours after Kara’s death. The girl’s passing apparently had not shaken Neumann’s belief in the healing power of prayer. “Neumann made the point several times throughout the interview that he and his family do not need any traditional medical intervention, nor do they ‘believe’ in it,” Sleeter wrote in his summary. “Neumann said his family never gets sick and if they [did], prayer and God will heal them.” Neumann’s faith in God’s ability to vanquish illness was so strong that when Kara expired, he believed “God was going to bring [her] back to life,” according to Sleeter.

In the interview, Neumann recounted for the police captain the events leading up to Kara’s death. He acknowledged that the girl had seemed a “little weak and slower” than normal in the weeks leading up to Easter Sunday, but he said that he had chalked up her discomfort to the onset of puberty rather than a serious illness. Even as late as Saturday, March 22 – the day before her death – Kara’s condition hadn’t struck Neumann as being especially serious; nothing about it had raised a “red flag,” he told Sleeter in the interview. (It should be noted that other documents released by the Everest Police Department last week seem to contradict this claim. According to those documents, on March 22 the Neumanns sent an urgent email about their daughter’s condition to Unleavened Bread Ministries, and the message bore the subject line: “Help our daughter needs emergency prayer!!!”)

In his interview, Neumann said that he had even felt hopeful about Kara’s condition on Easter Sunday, the day of her death. Early in the day, he believed that the girl was getting “better,” and that her breathing was improving. But Kara’s condition deteriorated as the day progressed; she became uncommunicative and was unable to ingest water. When Sleeter heard Neumann describe the girl’s condition, he suggested that she had become unconscious, but Neumann resisted that description, saying instead that his daughter merely had been “in sleep mode.”

However it might have been described, Kara’s condition had been serious enough that Neumann had summoned Randall and Althea Wormgoor, with whom the Neumanns had worked and worshipped in a small prayer group. There had been a breach between the families over religious beliefs: as Sleeter described it, Neumann himself admitted that they “were not in complete agreement with theological points of view.” (In a separate interview with police, Randall Wormgoor said that this dispute was grounded primarily in his reluctance to acceptance the Neumanns’ view that sickness resulted from sin and should be treated with prayer in lieu of secular medicine.) Putting aside this disagreement, the Wormgoors came to the Neumanns’ house and immediately insisted that Kara needed emergency medical attention. They placed a 911 call, but it was too late; the girl already was dead by the time EMS personnel arrived.

Recounting these events for police apparently did little to shake Dale Neumann’s belief that prayer was more effective than medicine. Toward the end of his report of his interview, Skeeter noted, “Neumann told me that given the same set of circumstances with another child he would not waiver in his faith and confidence in the healing power of prayer.”

Faith healing in an electronic age

Now that the Marathon County District Attorney, Jill Falstad, has charged them with second-degree reckless homicide, a clearer picture is beginning to emerge of Dale and Leilani Neumann, the Weston, Wisconsin, couple whose 11-year old daughter, Kara, died on Easter Sunday. Thanks to the public release of portions of the police investigation into the Neumanns’ activities in the days leading up to Kara’s death, we know more about how their intense religious beliefs led them to eschew medical treatment and turn to prayer.

One particularly interesting aspect of the police reports is what they reveal about how Christian religious healing traditions have adapted to the electronic age. Like most devout individuals who turn to prayer to treat illness, the Neumanns took their cue in part from a passage in the Epistle of James that says of those confronted with illness: “They should call for the elders of the church and have them pray over them, anointing them with oil in the name of the Lord. The prayer of faith will save the sick, and the Lord will raise them up; and anyone who has committed sins will be forgiven” (5: 13-15). The Wisconsin couple apparently followed this admonition by turning to the information superhighway.

Among the materials publicly release this week were email messages exchanged between the Neumanns and individuals connected with Unleavened Bread Ministries, an internet-based ministry interested in exploring, as its Web site explains, “end-time revelations for America and the world.” On March 22, 2008, a day death before Kara’s death, Dale Neumann apparently sent an urgent email to obtain the telephone number of David Eells, the ministry’s leader. The subject of line of the email reflected the Neumanns’ mounting sense of urgency: “Help our daughter needs emergency prayer!!!!” The body of the message indicated that the couple sought from Eells “agreement in prayer over our youngest daughter, who is very weak and pale at the moment with hardly any strength.”

In a subsequent public statement, Eels revealed the extent of his communications with the couple, and was quick to downplay his influence over them. “Dale and Leilani Neumann from Wisconsin contacted one of our elders to ask that I (David Eells) call them to pray for their daughter. That elder got in touch with me Saturday evening and I called the Neumanns,” Eells wrote. “To my knowledge this was the first time I had spoken to them other than by a few emails over the last few years and posting a testimony on our site from their ministry. It has been reported that they are ‘under’ our ministry but they have had their own coffee house ministry for a few years in which they share the Gospel and we are glad of their work in The Lord.”

Eels has disavowed exerting much influence over the Neumanns, but he has highlighted their concern for their daughter and fervently endorsed their approach to healing. In his statement, Eels asserted: “They seem to be a very loving family who want to walk in the steps of Jesus, as do we. When I called they shared concern for their daughter, Kara, who had started getting sick in just the last day or so (not as is reported for the last 30 days). They asked me to pray and agree with them in prayer, basically because she appeared pale and listless (not a quote). They did not seem overly concerned because they had had healings before. This is not an unusual kind of request to us. I and our elders and prayer ministers are used to praying for the sick and have seen many healed by our Lord.”

Also disclosed in the police reports was the text of an email from Bill Rowe, who has been identified separately as the moderator of Unleavened Bread’s online Bible study. Responding to the Neumanns’ earlier request for emergency prayer for Kara, Rowe offered a detailed prayer that referenced several passages from the Christian scriptures, including the oft-quoted section of James. “We add our faith to Dale’s and Leilani’s and command Kara to be healed,” he wrote. “We command that spirit of infirmity to loose Kara now, leave her body, leave her home, and go back from where it came and stay there.” Rowe closed by noting: “The supplication of a righteous man availeth much in its working.”

As the prosecution progresses, it seems likely that the Neumanns and their supporters will continue to rely on the internet – this time to drum up support (and perhaps financial backing) for their defense. Unleavened Bread Ministries already has established a Web site (www.helptheneumanns.com) devoted to touting both the legal and spiritual justifications for the couple’s actions. “This family had every right, by law and by Biblical principle, to pray for a healing and not seek medical attention. That is not murder,” the site asserts. “They loved their daughter and were only seeking to do as God teaches in His word. God tells us by faith we are healed.”

Due process of law and the Neumann case

On Monday, Marathon County District Attorney Jill Falstad made one of the toughest decisions of her professional life. Appearing before a throng of reporters in Wausau, she announced that her office would be charging Dale and Leilani Neumann with second-degree reckless homicide for their roles in the death of their daughter, Kara, an eleven-year old who had succumbed to diabetic ketoacidosis on Easter Sunday. The Neumanns had committed that crime, Falstad asserted, by treating the girl’s grave condition with prayer rather than the medicine almost certainly would saved her life.

Thus ended weeks of speculation regarding the Neumanns’ legal fate. As many observers had pointed out, Falstad might have faced significant hurdles in court if she had chosen to charge the couple under Wisconsin’s child abuse statute, which contains a provision that seems to specifically shield from prosecution parents who address their children’s illnesses or injuries with “treatment through prayer.” In other states, similar stipulations have completely derailed criminal prosecutions of devoutly religious parents like the Neumanns. Faced with that potential barrier, Falstad turned to the state’s second-degree reckless homicide statute, which merely requires her to show that the couple “recklessly cause[d] the death” of their daughter. (If found guilty of that charge, they face up to 25 years in prison and fines up to $100,000.)

It would be premature, however, to say that the basic legal issues in the Neumann case have been resolved. If anything, in fact, they promise to get still more complicated, in part because courts in Wisconsin appear to have never ruled in a similar case involving faith healing, children, and the law.

The Neumanns might argue in court that the charges violate their right – protected by both the state and federal constitutions – to freely practice their religion. If comparable cases in other states can serve as any guide, this claim is unlikely to give them much legal traction: in cases stretching back to the late 19th century, a variety of courts have held that an individual’s right to religious liberty is not absolute, and that it can be outweighed by the state’s interest in protecting others or maintaining public order. In cases involving children and faith healing, courts generally have found that the state’s interest in protecting the welfare of children is paramount.

A much more promising line of defense for the Neumanns might spring from the concept of “due process of law,” which is guaranteed by the Fifth and 14th Amendments of the U.S. Constitution. They could argue that, in effect, Wisconsin’s laws are too confusing for the average layperson to understand because one part of the criminal code (the child abuse statute) appears to explicitly protect spiritual healing practices while another (the second-degree reckless homicide law) does not. Which measure were they supposed to follow? And in which circumstances?

Unlike the religious liberty argument, this claim has proven effective in several other states, including Minnesota. In 1990, prosecutors there tried a similar end-run around a religious-healing exemption, and three different courts (the trial court, the state court of appeals, and the state supreme court) ruled against them. The courts held that that the laws “provided ‘inexplicably contradictory’ definitions of prohibited behavior so as to violate due process requirements,” as one of the judicial opinions issued in the case put it. Because it’s from another state, the precedent in that case (State v. McKown) isn’t directly applicable in Wisconsin, but it almost certainly will be referenced by the Neumanns as courts here try to untangle the legal issues in their case. So too will be a similar case from Florida known as State v. Hermanson.

But this due process argument is by no means an air-tight defense for the Neumanns. Courts in other jurisdictions, most notably California, have rejected it. The rulings in these cases have found that there is no real conflict between the potentially applicable statutes, and that an average person would not be confused by them.

Although these legal matters remain cloudy, one thing seems certain: the Neumann case will not be resolved quickly. And, given the profound legal and ethical issues involved, perhaps that’s a good thing.

Experts cite possible defenses in Neumann case (updated)

Among those of us who closely track these kinds of cases, there seems to be a consensus that there might be a viable legal defense for Dale and Leilani Neumann, the Wisconsin couple recently charged with second-degree reckless homicide for their alleged roles in the death of their daughter, Kara, on Easter Sunday.

On Thursday, May 1, the Milwuakee Journal Sentinel published a story on this. Bill Glauber wrote:

Under Wisconsin statutes involving physical abuse of a child, parents are shielded from abuse or neglect claims if the sole reason for bringing charges is "because he or she provides a child with treatment by spiritual means through prayer alone for healing . . . "

No such shield exists under charges of homicide.

Yet, because parents can be shielded in child abuse cases, the Neumanns could claim they are being denied their constitutional right to due process.

That defense is not unusual, according to Shawn F. Peters, a University of Wisconsin-Madison teacher and author of "When Prayer Fails: Faith Healing, Children and the Law."

"They can say, 'Which law were we supposed to follow?' " Peters said. "On one hand, one part of the code says spiritual healing is permissible, but on the other hand, under second-degree reckless homicide, it's not permissible."

Peters said there have been several cases over the years in other states with very similar circumstances and conflicts.

"Courts have come down on both sides," he said. "Some cases, that claim worked. And in other cases, it has not worked."

In one case, Minnesota courts dismissed manslaughter charges against a couple and a Christian Science practitioner on grounds of due process. The state had a child neglect statute that allowed parents to rely on spiritual treatment for their children. The couple's 11-year-old son died of untreated diabetes as he received spiritual treatment.

Peters said it was unlikely the Neumanns would stake the case on a First Amendment right to freedom of religion.

"I think the due process argument is much better legally," he said. "Most people (among the general public) would say they're not being charged under a child abuse statute, so that statute shouldn't matter. But it does. It's still looming out there."

The Wausau Daily Herald reported on Tuesday, April 29, in a story written by Bob Mentzer, that scholars Marci Hamilton and James Dwyer also see potential hurdles for prosecutors. According to the Wausau paper:

An apparent contradiction in Wisconsin criminal law could provide the basis of Dale and Leilani Neumann's legal defense against homicide charges in the death of their 11-year-old daughter, Kara.

Kara died as a result of untreated diabetes when her parents chose to pray for her recovery rather than seek medical treatment. Wisconsin's criminal code includes a legal exemption for "treatment through prayer" that appears to conflict with the statute under which District Attorney Jill Falstad will bring charges today. According to legal experts and people who have studied faith healing cases, the Neumanns' legal defense is likely to hinge on this conflict.

"They're going to be arguing that there wasn't enough clarity in the law, so that the parents could not conform their conduct to the law," said Marci Hamilton, a constitutional law scholar in New York and the author of "God vs. the Gavel," a book about religious freedom and the law.

Though most states have some form of a legal exemption, Wisconsin's law is unusual in that it is a part of the criminal code rather than being confined to civil law.

"The (parents') claim is stronger in Wisconsin, where the exemption is in the criminal code," said James Dwyer, a law professor at The College of William and Mary in Virginia, who has written about faith healing and the law. "Among those types of claims ... I'd say this one is relatively strong."

Overall, Dwyer said courts in other states have been "about 50-50" in accepting this type of legal argument.

Some courts "have just denied the claim, saying parents should be on notice that they can't let their child die," Dwyer said.

Shawn Peters, a University of Wisconsin-Madison instructor who studied faith healing cases for his book "When Prayer Fails," called the legal hurdles faced by Falstad "significant."

"There hasn't been a case like this in Wisconsin, so in some ways they're operating without a clear legal road map," Peters said.

Parents charged in Neumann faith-healing case

The district attorney of Marathon County, Wisconsin, announced today that the parents of Kara Neumann will be charged with second-degree reckless homicide, a felony punishable by up to 25 years in prison.

In her press conference, the DA, Jill Falstad, acknowledged that she was essentially blocked from charging the couple under the state's abuse and neglect laws because they contain provisions that explicitly protect parents who treat their children with prayer rather than medical or surgical treatment. The reckless homicide statute contains no such caveats.

The Neumanns' attorneys almost certainly will seek to have the charges dismissed on the grounds that their right to due process of law has been violated. They probably will argue (in effect) that Wisconsin law is contradictory, and thereby unfair, in that conduct protected under one part of the law (the child abuse statute) apparently is not protected under another part of the law (the reckless homicide statute).

There isn't much precedent in Wisconsin for this defense, but it has proven very effective in some other jurisdictions, including Minnesota. In 1990, prosecutors there tried a similar end-run around a religious-healing exemption, and three different courts (the trial court, the state court of appeals, and the state supreme court) ruled against them. The courts all ruled that (as one opinion put it) that the laws "provided 'inexplicably contradictory' definitions of prohibited behavior so as to violate due process requirements." The precedent in that case (State v. McKown) isn't directly controlling in Wisconsin, but it almost certainly will be invoked by the defendants. To find the appeals court's ruling in that case, see 461 N.W. 2d 720.

(Please note that this Minnesota case is not the civil suit made famous in Lundman v. McKown, although they involved the same defendants. The "inexplicably contradictory" ruling was in the criminal matter.)

Neumann case on "Upfront with Mike Gousha"

I had the chance to appear on WISN-TV's "Upfront with Mike Gousha" in a program that aired on various stations statewide on Sunday, April 27. Mike and I discussed the Neumann case, and the district attorney's then-pending decision on bringing charges. A clip of the broadcast is available here.

More on Wisconsin law and Neumann case

Earlier this week I published a brief piece for the Wausau Daily Herald examining the legal issues raised by the Neumann case. It is available here.

Worthingtons create Web site

Carl and Raylene Worthington, the Oregon parents recently charged in the faith-healing death of their daughter, Ava, have created a Web site aimed at rallying support for their defense. (It is available here.) The site (launched at a press conference on April 17) provides some interesting information, including a copy of the indictments issued against the couple.

Article for Newsweek/Washington Post "On Faith"

A decent summary of my book When Prayer Fails: Faith Healing, Children, and the Law was published on the "On Faith" site in January (before the Oregon and Wisconsin faith healing cases broke into the news). The piece is posted here.

Appearance on "Freethought Radio"

I discussed recent faith healing cases on "Freethought Radio," hosted by the Freedom From Religion Foundation's Annie Laurie Gaylor. A podcast of that discussion is available here.

Discussion of Neumann faith healing case on Wisconsin Public Radio

On Wednesday, April 16, I was asked to discuss the legal and cultural issues surrounding the Kara Neumann case (from Weston, Wisconsin) on the "Ideas Network" of Wisconsin Public Radio. That broadcast has been archived here.