Law & Inequality: A Journal of Theory and Practice Volume 15 | Issue 2 Article 3 1997 From Exemptions of Christian Science Sanatoria to Persons Who Engage in Healing by Spirtual Means: Why Children's Healthcare v. Vladeck Necessitates Amending the Social Security Act Danyll Foix Follow this and additional works at: http://scholarship.law.umn.edu/lawineq Recommended Citation Danyll Foix, From Exemptions of Christian Science Sanatoria to Persons Who Engage in Healing by Spirtual Means: Why Children's Healthcare v. Vladeck Necessitates Amending the Social Security Act, 15 Law & Ineq. 373 (1997). Available at: http://scholarship.law.umn.edu/lawineq/vol15/iss2/3 Law & Inequality: A Journal of Theory and Practice is published by the University of Minnesota Libraries Publishing. From Exemptions of Christian Science Sanatoria to Persons Who Engage in Healing by Spiritual Means: Why Children'sHealthcare v. Vladeck Necessitates Amending the Social Security Act Danyll Foix* Since 1965, Social Security statutory and regulatory exemp- tions have allowed Medicare and Medicaid to reimburse First Church of Christ, Scientist,' Boston, Massachusetts sanatoria 2 in- patients' room, board and primary nursing expenses. 3 In February of 1996, the organization Children's Healthcare Is a Legal Duty (CHILD)4 challenged these exemptions as violating the United * J.D. expected 1998, University of Minnesota; B.A. 1995 University of Min- nesota. The author gratefully acknowledges the members of Law & Inequality: A Journal of Theory and Practice, especially John Lacey, Mary Schouvieller, Erica Gutmann Strohl and Ben Weiss, for their comments and editorial assistance. 1. Popularly known as "Christian Science" and referred to in this Comment as "the Church." Christian Science will also be referred to in this Comment as the "Christian Science religion." 2. Christian Science sanatoria provide inpatients who are members of the Church with basic physical nursing care while they receive spiritual treatment. See infra notes 29-49 and accompanying text. 3. See infra Part II (explaining how the Social Security Amendments of 1965 provided for the current Medicare and Medicaid programs' exemptions for Chris- tian Science sanatoria). 4. See Andrew Herrmann, Christian Science's Battle over Healing, CHI. SUN- TIMES, Aug. 18, 1996, at 30A. Rita Swan formed CHILD after her own failed expe- rience with practitioner healing. Id. Raised as a Christian Scientist, Swan mar- ried another member of the Church. Id. Swan had always used the help of a prac- titioner for healing. Id. In 1977, when her 16-month-old son, Matthew, became ill with meningitis, she again enlisted the services of a practitioner. Id. After those services proved unsuccessful, Swan "brought Matthew to the hospital emergency room on the 12th day, saying he had a broken bone (which can be set under Church practice). The doctors were appalled. They wanted to do an emergency surgery to release the pressure on the brain." Id. After the doctors involved threatened to go to court, the Swans agreed to the surgery. Id. Their son, however, died seven days later. Id. The Swans brought an unsuccessful suit against the practitioner who had tried to heal their son. Id. These experiences led Rita Swan to form CHILD, a 300-member advocacy group dedicated to ensuring that children will not die because of parents' religious con- victions. Since founding CHILD, Swan has regularly criticized the Christian Sci- ence church on television and in print media. Id. Law and Inequality [Vol. 15:373 States Constitution. 5 In an unprecedented decision, the Federal District Court for the District of Minnesota Third Division ruled in Children's Healthcare Is a Legal Duty, Inc. v. Vladeck6 that Medi- care and Medicaid payments to the Church's sanatoria violate the 7 Establishment Clause of the Constitution. This Comment provides the context in which Children's Healthcare was decided and analyzes the court's decision from both a legal and policy perspective. Part I examines the Christian Science religion's belief in spiritual healing, the Church's system of spiritual healers and the Church's process of certifying and "listing" its system of sanatoria, practitioners and nurses. Part II summarizes both the purpose and the administration of Medicare and Medicaid, discussing their relation to Christian Science sani- toria and introducing the statutes and regulations that the Chil- dren's Healthcare court held to be unconstitutional. Part III ex- amines current Establishment Clause jurisprudence and evaluates the proper standard for review of governmental accommodation of religion demonstrating that statutes that discriminate among re- ligions require strict-scrutiny review. Part IV reviews the Chil- dren's Healthcare case. Part V confirms that the federal district court correctly held that the Medicare and Medicaid exemptions for Christian Scientists violate the Establishment Clause but sug- gests that the court's decision contravenes public policy. Part VI proposes amendments to the current Medicare and Medicaid stat- utes that would withstand constitutional scrutiny. This Comment concludes that the Children's Healthcare court reached the correct decision. The Constitution does not allow Congress to legislate Medicare and Medicaid exemptions for only the Christian Science religion. This Comment also concludes that the Medicare and Medicaid programs' failure to accommodate any religious beliefs is unacceptable as a matter of public policy.8 Therefore, Congress should amend the Social Security statutes to allow competent adults whose religious beliefs compel engaging in spiritual healing to participate in the Medicare and Medicaid pro- grams.9 Such religion-neutral amendments would be both consti- 5. Children's Healthcare Is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466 (D. Minn. 1996). 6. Id. 7. Id. at 1480-81. 8. See infra notes 291-304 and accompanying text (noting the increasing popularity of alternative therapies and suggesting that such therapies be incorpo- rated into Medicare and Medicaid coverage). 9. See infra Parts V and VI (discussing the benefits of alternative medicine and proposing model amendments for effectively and fairly exempting spiritual 1997] CHILDREN'S HEALTHCARE V. VLADECK 375 tutional under current Establishment Clause jurisprudence and prudent public policy because they would properly accommodate Medicare and Medicaid participants' religious beliefs. 10 I. Christian Science Religion, Sanatroria, Practitioners, Nurses, Church-Certification and "Listing" Mary Baker Eddy, founded the First Church of Christ, Scien- tist in the 1860s after her use of spiritual healing in her recovery from a serious fall." The Church is based both upon the King James Version of the Holy Bible and Eddy's interpretation of the Bible. 12 Today, Eddy's collection of essays and letters entitled Sci- ence and Health with Key to the Scriptures13 is regarded as the ba- sic text of the Christian Science religion.14 healing). 10. See Christian Scientists Lose Court Battle, STAR-TRIB. (Minneapolis), Aug. 9, 1996, at 4A. Robert Bruno, a lawyer for the plaintiffs, estimates that Christian Science practitioners collect $8 million to $10 million yearly in medical payments; Church spokesman Victor Westburg said a figure of $7 million to $7.5 million would be more accurate. Id. Neither of them knew how much the Church re- ceived in Medicaid money. Id. See also Children's Healthcare, 938 F. Supp. at 1486-87 (recognizing the potential impact its decision would have upon the Church and its members, the court stayed relief pending appeal). See also infra notes 327- 365 and accompanying text (explaining how such an amendment would pass Lemon test scrutiny). Examined in the context of the Christian Science religion, one can understand the importance of accommodating individuals whose religion is based upon spiritual healing. 11. See ROBERT A. NENNEMAN, THE NEW BIRTH OF CHRISTIANITY: WHY RE- LIGION PERSISTS IN A SCIENTIFIC AGE 117-25 (1992). 12. See id. at 122. See generally MARY BAKER EDDY, SCIENCE AND HEALTH WITH KEY TO THE SCRIPTURES (1916) (explaining Eddy's interpretation of the Bible) (hereinafter referred to as Science and Health). While one may question Eddy's particular Biblical interpretation, Eddy emphasized diligently that she "set forth Christian Science and its application to the treatment of disease just as I have dis- covered them." Id. at 126:22-3. Further, Eddy claimed: I have found nothing in ancient or in modern systems on which to found my own, except the teachings and demonstrations of our great Master and the lives of prophets and apostles. The Bible has been my only authority. I have had no other guide in "the straight and narrow way" of Truth. Id. at 126:26-31. 13. EDDY, supra note 12. 14. See NENNEMAN, supra note 11, at 123. Understanding that she could not personally speak with all persons curious about the Christian Science religion, Eddy realized that she would have to rely on her writings as the main source of her teaching. Id. From 1872 to 1874, Eddy spent most of her time writing her textbook. Id. She published it at her own expense in 1875. Id. See also STUART E. KNEE, CHRISTIAN SCIENCE IN THE AGE OF MARY BAKER EDDY 6 (1994) (citing a 1909 speech delivered by Augustana E. Stetson). "If people were hungry, de- pressed, ill or jobless. 'the teachings of our beloved leader, Mrs. Eddy... [and] our textbook, Science and Health will feed the multitude ... the bread of Life."' Id. (quoting AUGUSTANA STETSON, REMINISCENCES, SERMONS AND CORRESPONDENCE PROVING ADHERENCE TO THE PRINCIPLE OF CHRISTIAN SCIENCE AS TAUGHT BY MARY BAKER EDDY 266, 587, 623 (1913)). Law and Inequality [Vol. 15:373 According to Eddy, the Bible fails to articulate a thorough 15 and unquestionable method of how to practice Christianity; nonetheless, most Christian denominations have simply impro- vised by practicing Christianity through imitation of Jesus' life- style. 16 Science and Health identifies and questions other Chris- tian denominations selective imitation of Jesus' lifestyle.