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Baylor University, Waco, TX – An essay
entitled, Jehovah's Witnesses, Blood Transfusions, and the Tort of
Misrepresentation, found in the Autumn
issue of Baylor University’s prestigious Journal of Church and State,
published December 13, 2005, exposes the vulnerability of Jehovah’s
Witnesses’ religious organization to massive claims for compensation
because of the religion’s misrepresentation of the medical risks of
blood transfusions.
This milestone essay critically examines one of the religion’s main
publications for teaching their children and new recruits about their
blood beliefs, How Can Blood Save Your Life? The peer-reviewed essay
details many misrepresentations of medical facts, which the religion
partly relies on to support its blood prohibition, thus denying its
members from making fully informed medical decisions.
* The misrepresentation of secular facts;
* The misrepresentation of historians’ writings;
* The amplified medical risks of accepting a blood transfusion;
* The misrepresentation of blood’s necessity and the medical alternatives
to blood transfusion;
* The organization’s current blood policy misrepresents the scope of
allowed blood products; and *The organization’s blood policy contains
contradictions about autologous blood transfusions.
If members of the religion do consent to a blood transfusion, they are
shunned by the entire community of Jehovah's Witnesses including close
family members.
The essay examines the State’s power to protect its citizens by allowing
followers and their families to pursue legal action against a religion
when it misrepresents secular facts which harmed the followers, and
suggests possible avenues to apply the tort of misrepresentation to
the Watchtower Bible and Tract Society, Jehovah's Witnesses' corporate
organization, and who publishes Jehovah’s Witnesses’ literature.
The effect of these misrepresentations leaves both Jehovah’s Witness
members, and medical staff treating them, ill-advised and Jehovah’s
Witness patients more likely to suffer harm.
According to Jehovah’s Witnesses’ sources, thousands of Jehovah’s Witness
children have died around the world because they refused blood transfusions;
the number of Jehovah’s Witness adult deaths has never been released,
but for every child’s death there are likely to be many adult deaths.
There are therefore a massive number of potential litigants.
The 38-page essay, entitled, "Jehovah’s Witnesses, Blood Transfusions,
and the Tort of Misrepresentation," is being translated into a number
of languages, including Polish, Norwegian, French, Spanish, Portuguese,
Swedish, Italian, German, and Russian. This important essay was written
by attorney Kerry Louderback-Wood after her own mother, who was a Jehovah’s
Witness, died in January 2004 obeying her religion’s blood ban.
-- End --
Excerpt 1 from "Jehovah's Witnesses, Blood
Transfusions, and the Tort of Misrepresentation.
A state can intrude, however, either directly or through allowing tort
action, in the right to exercise religious beliefs provided the state’s
action can meet a four-part test:
1. Government must have an important or compelling state interest.
2. The “burden of expression must be essential to further” this interest.
3. The “burden must be the minimum required to achieve” this interest.
4. The measure must apply to everyone, not just the questioned religion.[2]
Government intervention into religious exercise through meeting this
test is rooted in legal precedent. In Reynolds v. U.S., one of the first
decisions limiting religious freedom, the Supreme Court upheld a law
criminalizing polygamy because of the state’s compelling interest in
protection of the family unit.[3] Additionally, courts are now willing
to allow aggrieved citizens to sue their church if it misrepresented
a secular fact.[4] For example, one court has held a religious organization
liable for misrepresenting its use of donated funds.[5]
Similarly, the Catholic Church became engulfed in a flood of tort law
suits following revelations that some of its priests sexually abused
minors and that the church allowed known sex-offender priests to continue
their posts.[6] ......
One of the primary cases dealing with a religious organization’s misrepresentations
is Molko v. Holy Spirit Association for the Unification of World Christianity
(“Unification”).[7] The California Supreme Court held that ex-followers
could sue the church for fraud in its deceptive recruitment practices.
..... The California Supreme Court, however, held that the church’s
deceitful recruitment practices were unprotected, religiously-motivated
conduct and therefore subject to court scrutiny.[8] The court stated
that holding a religious organization liable for misrepresentations
is the best solution, as it does not implicate either the church or
its members’ right to associate or worship, or force them to perform
acts contrary to their religious belief. [9] The court concluded that
allowing tort relief for misrepresentations only closes “one questionable
avenue” for recruiting members.[10] The court reasoned that opening
religious organizations to traditional tort liability protects persons
from being harmed and is nondiscriminatory since it applies equally
to religious and non-religious groups.[11]
Excerpt 2
Courts are frequently called upon to order transfusions for children
of Jehovah’s Witness parents.[19] In its legal information section entitled
“You Have The Right to Choose, ” the pamphlet informs parents that courts
recognize parents’ rights to make medical decisions for their children:
In 1979 the U.S. Supreme Court stated clearly: “The law’s concept of
the family rests on a presumption that parents possess what a child
lacks in maturity, experience, and capacity for judgment required for
making life’s difficult decisions . . . Simply because the decision
of a parent [on a medical matter] involves risks does not automatically
transfer the power to make that decision from the parents to some agency
or officer of the states.”—Parham v. J.R.[20]
The same year the New York Court of Appeals rules: The most significant
factor in determining whether a child is being deprived of adequate
medical care . . . is whether the parents have provided an acceptable
course of medical treatment for their child in light of all the surrounding
circumstances. This inquiry cannot be posed in terms of whether the
parent has made a ‘right’ or a ‘wrong’ decision, for the present state
of the practice of medicine, despite its vast advances, very seldom
permits such definitive conclusions. Nor can a court assume the role
of a surrogate parent.—In re Hofbauer[21]
While these quotes are not in themselves inaccurate, the Society does
not inform its readers that these particular cases do not involve minors
of Jehovah’s Witnesses who need immediate, life-saving blood transfusions.
Rather, Parham v. J.R. deals with the parents’ wish to obtain psychiatric
help by civilly committing an uncontrollable minor contrary to the minor’s
objections.[22] Moreover, the relevant facts in Parham did not involve
the parents’ refusal to accept medical treatment on religious grounds.
Indeed, concurring Justice Stewart wrote that a state would have constitutional
grounds to preempt the parent’s decision, and defended this position
by referring to a seminal case against a Jehovah’s Witness parent who
mandated that her minor niece engage in selling Society magazines in
violation of the state’s child labor laws.[23] In re Hofbauer deals
with the parents’ choice of using nutrition instead of chemotherapy
to treat Hodgkin’s disease. [24] The Hofbauer court also differentiated
its facts from cases involving parents’ religious refusal of medical
treatment, including a reference to a specific Jehovah’s Witness blood
case, a fact which the pamphlet omitted.[25] From these examples, a
clear precedent can be seen that many courts will order blood transfusions
for minors over and against the parents’ wishes.[26] Thus, Jehovah’s
Witness parents may be surprised to learn that precedent denies their
supposed “right” to make martyrs of their children.[27]
Excerpt 3
Most surgeries do not require blood transfusions. Some surgeries, such
as coronary bypass, hip or knee replacement, hepatic resections [liver
surgery], and radical prostatectomy [prostrate removal], are a higher
risk.[28] The pamphlet states that bloodless surgeries are safe and
quotes as support a study by Dixon B. Kaufman concerning renal (kidney)
transplants: “The overall results suggest that renal transplantation
can be safely and efficaciously applied to most Jehovah’s Witness patients.”[29]
More telling, however, is the self-incriminating information that the
Society omitted (emphasis on Society’s actual quote):
Jehovah Witnesses had an increased susceptibility to rejection episodes.
The cumulative percentage of incidence of primary rejection episodes
was 77 percent at three months in Jehovah’s Witnesses versus 44 percent
at 21 months in the matched control group. The consequence of early
allograft dysfunction from rejection was particularly detrimental to
Jehovah’s Witness who developed severe anemia (hemoglobin (Hgb)* 4.5
per cent) – two early deaths occurred in the subgroup with this combination.
The overall results suggest that renal transplantation can be safely
and efficaciously applied to most Jehovah Witness patients but those
with anemia who undergo early rejection episodes are a high-risk group
relative to other transplant patients.[30]
Since the pamphlet dedicates pages to anemia, why did the Society omit
that the almost double rates for organ rejection as well as the study’s
clarification that “those with anemia” are a high risk group?
Excerpt 4
Summary of Survival Rates and Medical Alternatives Misrepresentations
At this point, a salient question emerges: Should the tort of misrepresentation
be allowed to the victims of blood policy and their families who have
come to the conclusion that the Society misrepresented the historical
and medical science in its indoctrination literature? A court could
conclude that each misrepresented statement is relatively insignificant.
However, when taken together, the misrepresentations serve to warp the
follower’s mind regarding the actual medical and historical perspective.
The Society deceives its followers into thinking that blood transfusions
render one’s immune system incapable of fighting cancers, when the actual
link depends on the type of cancer. It builds a case that other doctors
wish all surgeons would become bloodless surgeons, when in fact those
doctors recognize the benefits of blood transfusions for those who are
in desperate need.
The Society “scares” followers into believing
that accepting blood transfusions is equivalent to contracting contagious
diseases, when the actual risks are one in several hundred thousand
to a few million. The Society “placates” by suggesting adults and infants
can tolerate low hemoglobin levels, despite medical knowledge that a
healthy person has at least a one in three chance of not surviving a
blood count lower than 7, with survival rates for people in high-risk
groups being much lower. The Society falsely assures parents that they
can legally refuse a blood transfusion for their child by citing cases
that in no way substantiate such a position.
The Society never reveals to its readers the
actual risks of death when blood levels drop either slowly from anemia
or quickly from hemorrhage. Instead, the Society gives its readers the
impression that ultra low hemoglobin counts, such as 1.8, are easily
survivable under the supervision of the right doctor. Only by looking
at the overall effect of the Society’s literature can one determine
whether there are misrepresentations that induce a follower to accept
the Society’s life-threatening arguments without question.
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