CHAIN THE DOGMA

OregonLive - The Oregonian June 21, 2009

by Steve Mayes | The Oregonian

OREGON CITY -- Ava Worthington died surrounded by loved ones who believed their prayers would heal the young child.

As the 15-month-old girl struggled to breathe, church members anointed her with oil and pleaded with God to provide a cure. But Ava died March 2, 2008, of bronchial pneumonia and a blood infection. Antibiotics could have saved her life, the state medical examiner's office said.

Her death was more than a tragedy, according to Clackamas County prosecutors, it was a crime. Ava's parents, Carl and Raylene Worthington, are scheduled for trial beginning Tuesday on charges of manslaughter and criminal mistreatment.

The Worthington case will be the first time anyone in Oregon has been prosecuted under a 1999 law passed in response to an extraordinary number of child deaths involving the Worthingtons' church, the Followers of Christ in Oregon City. The law eliminated religion as a defense in most cases of medical neglect.

Across the country, advocates for religious freedom, parental rights and child safety will be watching. TruTV, formerly known as Court TV, plans to cover the trial.

"This will be the test for the new law in Oregon," said Shawn Peters, a University of Wisconsin at Madison teacher and an expert on law and religion.

For nearly a decade after Oregon cracked down on faith-healing deaths, there were no verified cases of Followers of Christ children dying from medical neglect. Then last spring the faith-healing controversy rocketed back into the headlines.

Four months after Ava died, her 16-year-old uncle, Neil Beagley, died of complications from an untreated urinary tract blockage. Beagley's parents, also members of the Followers of Christ church, are scheduled for trial in January on charges of criminally negligent homicide.

"It shows how these cases continue. The cycle continues unbroken," said Peters, author of "When Prayer Fails: Faith Healing, Children and the Law."

The Worthington trial will touch on some profound questions. When does a child's welfare outweigh religious freedom? When does the state's responsibility to safeguard children trump parental rights? Perhaps the most haunting question is this: What kind of parent stands by while a child writhes in pain or suffers a lingering death?

"Part of what makes these cases so tragic is that the parents are doing what they think is best for their children," Peters said. "There is no criminal intent."

Religious freedom

The Worthingtons maintain that the state and federal constitutions give them the right to care for their children according to their religious beliefs. Their lawyers have established the Worthington Defense Fund and are soliciting donations to defend those rights.

On Saturday, the church issued a statement through attorney Steven B. Ungar that addressed the church's position: "Family autonomy is a deeply respected value and tradition in our country, as is religious freedom. Both are reflected in a myriad of laws at every level. And while the government traditionally has a say in some decisions involving parent and child, criminally charging the Worthingtons under these circumstances violates the Constitution and is an abuse of power."

Prosecutors say religious and parental rights do not give the Worthingtons the right to endanger the life of a child.

On that point, the law favors the state.

Nationally, courts have ruled that states may override parents and require medical treatment, such as dental work or tonsillectomies, for young children. Some courts have limited the state's right to intervene to cases where the child's life is threatened.

"The vast majority of cases from around the country hold that the state does have the power to punish parents for withholding medical treatment that would have saved a child's life," said Charles F. Hinkle, a Portland attorney who specializes in constitutional issues and has consulted with the Worthingtons' attorneys.

No Oregon appellate court has ruled that religious freedom is absolute.

"Defense lawyers typically wave the First Amendment or the Constitution around, claiming there's some sort of constitutional right at stake, even though there isn't," said Greg Hamilton of the Northwest Religious Liberty Association, an organization dedicated to protecting religious freedom. "God uses human beings to create remedies and to work with prayer in one hand and medical science in the other."

A recent Wisconsin case again tested these constitutional boundaries.

Two weeks after Ava died, an 11-year-old Wisconsin girl, Kara Neumann, died from an undiagnosed diabetic attack. Neumann's parents, who tried to heal the girl with prayer, argued that their constitutional right to religious freedom protected them from criminal charges

Judge Vincent Howard rejected the Neumanns' argument and ordered them to stand trial. "The free exercise clause of the First Amendment protects religious belief but not necessarily conduct," Howard said in his ruling.

The girl's mother was convicted last month of second-degree reckless homicide. The father goes to trial next month.

The Followers

The Worthington case has opened a window on the Followers of Christ church.

The Followers never grant media interviews, but church President Fred Smith briefly discussed the church's approach to healing the sick in a recent court hearing. "We believe in Jesus Christ ... and he tells you to anoint them with oil and pray for them. So that's what we believe in."

The church's reliance on spiritual healing over medical treatment stems from a passage in the Book of James: "Is any sick among you? Let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord. And the prayer of faith shall save the sick, and the Lord shall raise him up; and if he have committed sins, they shall be forgiven him."

Former church members say those who seek medical care are shunned, but Smith told the court that the rejection of secular medicine is not absolute. "It is definitely not encouraged, but it is not forbidden," Smith said. "If someone uses a doctor, that person is not tossed out of the church."

The church finds few allies among mainstream Christian churches, which often fund entire hospital networks.

"I am a strong supporter of the religious freedom of the family, including the freedom to raise children very different from the norm, but I have always drawn a line when the health of a child is seriously at risk," said Stephen L. Carter, a Yale Law School professor who has written about the role of religion in politics.

"The reason is not that I think the parents are wrong in their beliefs -- the state has absolutely no business saying so or even hinting so -- but because the cost of potential error is so high," Carter said.

Medical neglect

Traditionally, authorities have been reluctant to intervene in family health decisions except in the most extreme cases of medical neglect. But through infrequent trials, courts have sharpened the boundary between secular and spiritual law.

In 1996, a Linn County Circuit Court jury convicted Loyd Hays of criminally negligent homicide. Hays, a member of a church similar to the Followers of Christ, relied on divine healing to cure his 7-year-old son, who died from leukemia. The father was sentenced to five years' probation.

Hays appealed his conviction. He argued that it was impossible for him to pinpoint the moment his conduct shifted from permissible to criminal and claimed that such distinctions violated his First Amendment right to freedom of religion.

The Oregon Court of Appeals upheld the conviction, saying, "Once a reasonable person should know that there is a substantial risk that the child will die without medical care, the parent must provide that care, or allow it to be provided, at the risk of criminal sanctions if the child does die."

A large part of the Ava Worthington case will be assessing the parents' actions in light of the severity of their daughter's symptoms and condition. An autopsy showed the girl suffered from a blood infection, pneumonia and a large, benign cyst on her neck that had never been medically addressed.

In a pretrial hearing, defense attorneys tried to ban the introduction of autopsy photos as evidence in the Worthington trial. But Clackamas County Circuit Judge Steven Maurer ruled that they will be allowed. The raw images provide vital evidence that investigators and medical experts need to illustrate their testimony, he said.

By all appearances, Carl and Raylene Worthington are law-abiding parents who deeply grieve the loss of their daughter. But under Oregon law, they could each receive more than six years in prison if convicted.

Regardless of the outcome, the next few weeks will add to their painful burden. As they mourn the loss of one child and look forward to another -- Raylene Worthington appears to be at least five months pregnant -- their lives will be on public display.

In the statement issued Saturday, the church emphasized the emotional toll of the case: "This prosecution compounds and prolongs the Worthington's grief. ... The Worthingtons will never stop loving or missing their daughter and the Followers of Christ congregants grieve with them."

It is a sad case all around, said Carter, the Yale law professor.

"I feel for the Worthingtons, who have already suffered tremendously," Carter said. "It is painful to see them punished afresh for doing what they thought right, but, when the life of a child is at stake, it is difficult to see what else the state can do."

-- Steve Mayes;

stevemayes@news.oregonian.com

This article was found at:

http://www.oregonlive.com/clackamascounty/index.ssf/2009/06/trial_in_death_of_infant_raise.html