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GREEN APPEAL (06/28/72)

decided: June 28, 1972.


Appeal from order of Superior Court, Oct. T., 1971, No. 908, reversing order of Court of Common Pleas, Family Court Division of Philadelphia, No. 174612, in re Ricky Ricardo Green.


Elliot B. Platt, for appellant.

Michael Minkin, Assistant Attorney General, with him Dante Mattioni, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Roberts and Mr. Justice Pomeroy join in this dissent.

Author: Jones

[ 448 Pa. Page 339]

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, ยง 1

[ 448 Pa. Page 340]

    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"*fn2 -- may be committed "to the care, guidance and control of some respectable citizen of good moral character. . . ."*fn3 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.*fn4 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. Superior Ct. 472, 14 A.2d 368 (1940). Cf., In re Rinker, 180 Pa. Superior 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."

[ 448 Pa. Page 342]

    the power of the State to control, even under regulations of general applicability." Wisconsin v. Yoder, 406 U.S. 205, 220 (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 (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 (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 to 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 (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

[ 448 Pa. Page 344]

    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); Santos v. Goldstein, 16 A.D. 2d 755, 227 N.Y.S. 2d 450 (1962), 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 State against certain physicians and hospitals in that State. The relief requested was a declaration that a "dependent child" statute similar to our own was ...

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