The `Least Restrictive' Means


A UNIQUE hearing here in the capital of the nation's largest state pointed up the delicate balance of interests and rights of individuals and private groups as opposed to the responsibility of the state to protect what it sees as the public interest. At issue is an assembly bill that would amend the state penal code under which several parents have recently been charged with felony child endangerment when an infant died under spiritual care and prayer.

Those who rely on these means for healing tend to support this proposed change in the law as consistent with constitutional guarantees of freedom of religion and a recognition by the state that it must exercise great restraint when considering a check on liberties.

The United States Supreme Court, in refusing to review a liability claim against a church and its religious practitioners, recently upheld a Michigan judicial finding that relied on two bases:

It said that religious conduct is permissible, and protected, unless the state can show a ``compelling interest'' in interfering with that conduct; and

It ruled that state action must take the ``least restrictive'' form.

In recent years, the courts have zealously guarded the rights of minorities, including racial and ethnic groups, mental patients, and children with handicaps or special needs.

The US Supreme Court stopped just short of declaring a moratorium on the death penalty in the face of evidence that blacks may be condemned to execution disproportionately more often than whites.

This same court has mandated that children with special needs be given the same mainstream opportunity for education as other youngsters. And this term the high tribunal is examining the constitutionality of denying certain ``due process'' rights to mental patients.

Judges have ruled in the past that those with diminished mental capacity have a right to refuse forced drugging or medication.

What does all this mean?

For one thing, it shows that even a compassionate state may fall into a position of imposing restrictions on certain groups in the name of public good.

There are those who argue that constitutional protection of religious belief is absolute, but that the implementation of faith in daily experience must be regulated by the state. However this is viewed, it is not to say that the state has no interest in protecting individuals, particularly children, from abuse and neglect. The law in a free society has to consider intent and circumstances.

The proponents of Assembly Bill 2325 say that criminal prosecution of parents who conscientiously use spiritual care to heal their children, and fail, is inappropriate punitive action by the state.

Some professional groups challenge reports of spiritual healing as ``anecdotal'' and hence not worthy of recognition. Yet physicians and other professionals often use case histories to make their points. Business schools also employ the case method to teach their students principles of successful management.

Norman Cousins, a professor at the school of medicine at the University of California, Los Angeles, criticizes the tendency of medical doctors and other professionals to disparage an account of a single experience by labeling it an anecdote. ``Despite the aversion of doctors to anecdotes, they frequently draw upon individual experiences,'' he writes in his new book, ``Head First: The Biology of Hope.''

Cousins has aroused the attention of the medical community by drawing a positive link between the mental attitude of seriously ill patients and their ability to recover or experience healing.

Society cannot accept a blanket premise that only medical means can effect recovery from sickness. Medical doctors are often the first to point out the risks of misdiagnosis and mistake.

The state cannot leave unexamined the option of alternatives to medical treatment any more then it can accept stereotypes about ethnic minorities, mental patients, or special-needs children.

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