(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.
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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.
End of Excerpts.
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The Journal of Church and State is read by those in the United States judiciary including the Supreme Court Justices of the United States. It is read by those in academia and professionals in 83 countries who are interested in the subject of church and state.
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