SB 93 by Smalley: Raises Concerns Regarding Religious Liberty and Parental Rights

(Update 1/14: I received an immediate reply from Senator Smalley. He forwarded the email he was sending in response to the email and some background and thoughts. I have not received answers to my questions. As soon as I get them, I will post in red.)

I recently received a legislative alert from HSLDA regarding SB93 filed by Oklahoma Senator Jason Smalley. This bill addresses changes to current law regarding children IN DHS custody or ENTERING DHS custody. 

Unfortunately, in their email alert, HSLDA doesn't provide a link to the bill (A BIG NO-NO) and only provides a brief, overall assessment of what the changes made by Smalley to the bill will accomplish. They then tell Oklahomans to contact Senator Smalley (they do provide his contact information) using a prefabricated letter.

I will say that I found and read the bill and was significantly concerned by some of the changes in the language - although I will say the original language didn't provide any real religious protections in the first place in my opinion. Below, I've pasted the letter I wrote to Senator Smalley today. I've asked him to submit answers to the questions I've asked at the bottom of the letter, but for those of you who want more information, please read my assessment, follow this post to see if the Senator responds - because I WILL add the answers to his questions - and then contact the Senator yourself (405-521-5547 or smalley@oksenate.gov) should you have the same kinds of concerns as I.

Thanks for your attention to this matter!

Hi Senator Smalley!

As many homeschoolers I'm sure, I received an HSLDA alert regarding your bill SB93. I have read the bill and am curious. If you could please answer the following questions (below) I will be happy to reprint them on my blog if you so choose, to help others who may also have questions.

HSLDA's most specific comment in their email was articulated as: 

HSLDA is concerned that SB 93 will prompt DHS investigators to increase their scrutiny of religious families whenever there is a question regarding a child’s health. 

​I note that two paragraphs have been removed from page 9, lines 14-24 under the 'deprived child' headings (defined in part by b. who does not have the proper parental care or guardianship and g. who, due to improper parental care and guardianship, is absent from school as specified in Section 10-106 of Title 70 of the Oklahoma Statutes, if the child is subject to compulsory school attendance, (pg 7)) saying:

Nothing in the Oklahoma Children's Code shall be construed to mean a child is deprived for the sole reason the parent, legal guardian, or person having custody or control of a child, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child. Nothing contained in this paragraph shall prevent a court from immediately assuming custody of a child and ordering whatever action may be necessary, including medical treatment, to protect the child's health or welfare;

and page 18, lines 12-22 under the 'neglected child' heading (defined in part by failure to provide (2) medical, dental, or behavioral health care, and (3) supervision or appropriate caretakers (pgs 17-18)).

Nothing in this paragraph shall be construed to mean a child is abused or neglected for the sole reason the parent, legal guardian or person having custody or control of a child, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child. Nothing contained in this paragraph shall prevent a court from immediately assuming custody of a child, pursuant to the Oklahoma Children's Code, and ordering whatever action may be necessary, including medical treatment, to protect the child's health or welfare;

The new language (pg 26 lines 11-18) says:

Nothing in this section shall prevent a court from ordering any necessary action to protect the child's health or welfare, notwithstanding that a parent, legal guardian or custodian of the child is unwilling to consent to such action because he or she, in good faith, select and depend upon spiritual means alone, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment, cure of disease or remedial care of the child. 

​Under section E (pg 29) "Whenever a child is taken into custody pursuant to this section:

​" new (underlined) language reads: 

(pg 30). The child may be taken directly to or retained in a health care facility for medical treatment, when the child is in need of emergency medical treatment to maintain the child's health, or as otherwise directed by the court; provided, that the court may hold a hearing to determine the necessity of such treatment and may take into consideration the religious beliefs and practices of the child and the parent, legal guardian or custodian of the chil​d;

​Other new language is included in Section 3 (pg 32) which outlines the behavior of the court following a child's intake to protective custody says:

(pg 34) In determining appropriate conditions for the release of the child, the court may take into consideration the religious beliefs and practices of the child and the parent, legal guardian or custodian of the child. However, nothing in this section shall prevent a court from ordering any necessary action to protect the child's health or welfare. ​

​New (underlined) language (pgs 37-38​) in Section 4 says:

​

The court may appoint an attorney or a guardian ad litem for the child when an emergency custody hearing is held; provided, that when an attorney or guardian ad litem shall be appointed before the court may release from state custody a child in need of medical treatment if the parent, legal guardian or custodian, in good faith, selects and depends upon spiritual means alone, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment, cure of disease or remedial care of such child.​

​Finally, at the end of the 'Act' (pg 44) new language has been inserted reading:

Nothing in the Oklahoma Children's Code shall be construed to mean a child is deprived solely because the parent, legal guardian or custodian of the child, in good faith, selects and depends upon spiritual means alone, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment, cure of disease or remedial care of such child, so long as the child is not then in need of special treatment for illness, injury or medical condition that may have serious debilitating consequences.​

​QUESTIONS:

1. It is obvious that, while the original language makes clear that withholding medical treatment from a child due to the religious practice of the parent did not constitute child deprivation OR neglect, the court was authorized to usurp parental rights in the case they should so judge.

The way I read the legal definition of "notwithstanding", your new language on page 26 essentially removes all notion that parents could exercise their religious beliefs in Oklahoma court when tied to questions concerning their child's health. 

• Am I wrong in that assessment? If so, please tell me SPECIFICALLY how. 
• If I'm right in that assessment, why would you seek to remove the court's legal address of a parent's right to treat their child in accordance with their religious tenets?
• What makes judges the supreme arbiters of religious freedom in any case, including healthcare?

​2. In Section 3E, you inform the court they may 'take into consideration' a parent's right to medical treatment of their child in accordance with their religion once a child is taken into custody.

• The state believes a child will die without medical treatment and removes the child from the parent, ostensibly over parent objections on religious grounds. Why must a parent have to prove to the state their religious intent AFTER a child is seized from the parent? 
• Does that not put undo financial burden on the family and emotional stress on that child?
• Are there hundreds and thousands of minor children in Oklahoma dying because of the religious practices of their parents?

3. Later in Section 3 you say the child can be released from custody by taking into account parental religious tenets, however, you also make sure to advise that the court has full and utter control over whether or not they 'agree' with those beliefs.

• Is it the job of the court to determine what are and are not 'appropriate' religious tenets? (see question 1)

4. At the end of the 'Act', the language referred to above is inserted.

• It seems very much as though the language has been written to be deceptive. It sounds as though you recognize the right of the parent to medically treat their child in accordance with their religion, but you remove that right in the case of serious illness. Why? 
• What makes the state the ultimate arbiter of religion in the case of medical treatment?
• In addition, you equivocate your statement via the use of the word "recognized". Is the state meant to be the ultimate knower of all religions and their tenets? Only if you're a Baptist can you have the right to treat your child in accordance with your religious tenets?

Senator Smalley, no one wants children to suffer and I applaud your concern for the youngest among us, however, we live in a free society. That is exactly what separates America from other countries. If we are to be a free society, we allow people to follow their religious tenets. Period. We may not agree with them, but that doesn't mean they aren't of serious value to those who hold them. So long they are not hurting others outside the family, the family has the right to their beliefs. I realize the need to be cautious with those who can't defend themselves, but there is a line with religion that simply can't be crossed without totally undermining the Founder's beliefs in religious freedom.

I perceive the kind of language I've outlined here as extremely slippery in slope. Unfortunately, as I'm sure you know, we've seen many cases across the country of the state usurping the rights of parents and removing children from homes for all sorts of reasons then applied to healthcare issues, thanks to activist courts.

I'd love to hear from you and hope you might consider revising/removing the language I've brought to your attention in this letter.

Thank you so much for your time in reading this long communication.

Sincerely,

Jenni White