Justification by faith.

n June 1997 a sixteen-year-old girl named Shannon Nixon began to I feel ill. Her parents belonged to the Faith Tabernacle Church, one of a number of American sects which believe that illness should be treated spiritually rather than medically. Accordingly, the Nkons prayed for Shannon and took her to be anointed at their church. Shannon reported that she felt better and that the spiritual treatment had gained her her victory-her recovery. Before long, however, Shannon again felt ill. She became weaker and weaker and then fell into a coma. A few hours later she died. An autopsy revealed that she had succumbed to diabetic acidosis. Shannon’s parents were charged with involuntary manslaughter and endangering the welhe of a child. A jury found them gurlty, and the judge sentenced them to prison for two and half to five years and fined them $1,000.1 The Nixons’ case merits attention not because it sets an astonishing new precedent, but because in its ordinariness it represents several continuing developments in a problem with which the law has had a prolonged and perturbed history. It is standard doctrine that parents have a duty to provide their children the medical care they need. Parents who breach this duty may ordinarily be judged to have “abused or neglected” their child, they may be subject to criminal penalties, and the state may step in to protect the child, even to the extent of terminating the parents’ legal relationship with the child. States have long intervened to secure medical care for children who are seriously ill but whose parents refuse to provide them medical care, even if the parents are motivated by their religious beliefs. The first amendment to the Constitution, of course, protects the “free exercise” of religion. Doesn’t this mean that parents who deny their children medical care for religious reasons can prevent the state from overriding their decision to be more concerned for their children’s immortal souls than for their children’s temporal bodies? The conventional answer to that question is no, not least because of the Supreme Court‘s decision in Prince II. Massachweta.2 In an often-quoted passage, it said, “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Suppose, however, that-as easily happenethe state does not find out that a child is being denied treatment until the child has died. The usual rule here is that i f a child dies because the parents have withheld medical care, the parents may be held criminally liable for the death. Nevertheless, where parents have refused medical treatment for their children for religions reasons, the Fncerns that animate the first amendm&t might lead us not to invoke the criminal law against them. \Furthermore, prosecutions of these parents is notoriously difficult. The parents’ failure to provide medical care must be identified as the cause of death, a prosecutor must decide to prosecute, a jury must decide to convict, a judge must decide to sentence, and an appellate court must decline to use any of the numerous devices at its disposal to reverse the conviction. It is thus not so surprising that for many years there were no reported appellate court opinions upholding homicide convictions of parents whose children had died because they had been given spiritual rather than medical care (although some parents were convicted of charges less than homicide). In recent years, however, this tacit compromise has been disturbed by two conflicting developments. On one hand, most states have adopted statutes that exempt religiously motivated parents from some of the effects of child protection laws. On the other hand, the number of homicide prosecutions of parents whose children have died after their parents treated them spiritually appears to have increased, and opinions upholding homicide convictions in these situations have begun to appear. Nixon illustrates why these two trends seem to conflict and why the new statutory exemptions raise problems for homicide prosecutions. To understand the case, we need to look carefully at the Pennsylvania exemption at issue. The commonwealth’s Child Protective Services Act (the CPSA) provides that if a county child protection agency