He knows death to the bone
Man has created death. – Yeats

Just as there is debate over when life begins, there are different beliefs about when it ends.

According to news accounts, a 12 year old child named Motl Brody was diagnosed with a highly malignant brain tumor and brought to Children’s National hospital in DC, where he underwent surgery in June to have the tumor removed.   Shortly after the procedure, Motl’s doctors began discussing end of life decision-making with his parents.  The young boy’s prognosis was grim.  Many weeks had passed and Motl had not regained consciousness.  Social workers apparently tried for months to find an appropriate palliative facility where they could send the unconscious boy, but the parents were worried such a facility would not engage in heroic resuscitating measures.  As I understand it based on third-party news accounts, the parents were also growing apprehensive that transferring their son to another institution may be too risky for his health.  During this time, the medical team assessed Motl’s brain and found it to have zero activity.  According to DC law, brain death = death. The child was sadly not able to breathe on his own without the help of a ventilator, and his heart only continued to beat because of the drugs that he was on and the artificial support he was receiving.  The medical team thought it was time to withdraw the ventilator and acknowledge that young Motl was dead.

Under different circumstances, this would have happened.  The family would be called to the patient’s bedside while the life support were terminated and the family said their goodbyes.  But the Brodys are orthodox Jews.  According to their belief system, which is not shared by all Jews, death is not defined in alignment with DC law (cessation of all brain function).  Rather, their faith defines death as when the heart stops functioning and there is cessation of breath.  Many community members wrote to the hospital echoing this belief and imploring the medical team to sustain Motl on the ventilator.  The hospital had apparently gone to court seeking judicial approval that the physicians acted properly under DC law when they declared the child legally dead. In jurisdictions where a brain death standard of death is the law, once brain death has been determined by proper medical diagnosis or by judicial determination, no civil liability will traditionally result from disconnecting life-sustaining devices.

Motl’s parents argued that their child was not dead under their rabbi’s interpretation of Jewish law.  The parents were poised to argue that DC Children’s would be in violation of the Religious Freedom Restoration Act, if the hospital set aside their religious beliefs and denied Motl further care.  Before the courts resolved this legal battle, young Motl passed away last week – the ventilator apparently not being enough to maintain his heart function and breathing.

If Motl had not passed before the legal battle ensued, what would the courts likely have said?  In the United States, we have the First Amendment to our Constitution, which protects individuals from the state endorsing religion or restricting its free exercise.  But the free exercise of religion is not absolute.  You cannot fail to pay taxes, abuse your children, or murder someone on religious grounds.  These are easy cases.  But what about the more difficult situation where a religious group argues a statutory definition of death violates their freedom of religion?

The state has some power to reasonably curb religious activities in a nondiscriminatory manner, to protect the law and order of society.  If a religious practice is burdened by state action, it does not automatically mean that a religious accommodation must be granted to members of that faith.  So long as the state justifies the incursion on liberty by showing that it is the least restrictive means of achieving some compelling state interest, the action will not violate the First Amendment.  Only incredibly important state interests can trump legitimate claims to the free exercise of religion.

So how then may the hospital and city of DC responded crafted the state interest, and how might the Brodys have responded?  Of course we do not know for certain how the case would have proceeded, if at all.  But the question about state interest seems not that difficult to me.  Might I venture that the state has an interest in furthering consistent legal definitions of death without regard to religious beliefs?  Whether it is a compelling state interest is open for debate, but I would argue that it is.  Everything from murder charges and probate and tort cases are impacted by the definition of death, and it would be incredibly problematic if the definition of death hinged largely on idiosyncratic religious beliefs.  A separate state interest exists in being able to allocate precious hospital resources, including hospital beds and organs for donation.  Here again, I think the state interest is compelling. In cases such as Motl’s, where the heart is only functioning due to artificial support, should hospitals be legally required to sustain the child on life support forever?  Perhaps the restriction on religious liberty could be narrowly tailored by requiring that the patient be given the opportunity to continue to breathe without artificial support stepping in for the dead brain.  This suggestion is not meant to be callous, but it drives the point home that but for the artificial respiration the heart would not be functioning when the brain is completely dead.

New York and New Jersey are the only two states that provide an exception for orthodox Jews to their state laws regarding brain death.  In these two states, death is legally defined as either when there is zero brain activity, or, if the individual is an orthodox Jew, when the heart stops beating.

With all due respect to religions that believe similarly, is it possible that this special exception to the definition of death, that is meant to ensure that the state does not infringe Jewish practice, actually endorses some religions over others?   What is to stop a group of like minded believers from petitioning hospitals and arguing that according to their belief, death occurs when the flesh disappears?  Or, taking up the opposite end of the life spectrum, what if some group believes that life begins at conception – and if there is risk of miscarriage in the first trimester, the state must intervene and provide life support to the fetus while it matures to full term in an incubator?

The anticipated and reasonable response to this is that the Jewish faith is a major world religion.  It is decidedly mainstream and well established.  It is qualitatively different from some eccentric, recently developed faith.  Alternatively, the argument could also be made that the requisite accommodation for the belief is not unwieldy and does not threaten social order.   But can this be what drives the First Amendment?  (Scholars in this area are invited to chime in – I would actually appreciate some feedback as to why the social aspect of religion is required before protection is often triggered.)

My problem is obviously not with this particular belief or with any religious group.  I have an enormous amount of respect for religious people of all types and philosophies.  My problem is with the ability of religious groups to lobby their legislatures for carve-outs.  As was the case in New York and New Jersey, when a religion represents a large enough group, the political representatives from the state may respond to political pressure and include a statutory exception for specific religious beliefs.  But can this really be what the First Amendment is about?  Protecting the religious beliefs of the majority?  Surely not.

I extend my deepest respect and thoughts to the families of those affected by laws that run afoul of their religious beliefs.  I certainly do not write these words to be hurtful or disrespectful for Motl’s parents and family.  I am truly sorry for their recent loss.  But I do not think the Free Exercise Clause was intended to be used as a tool to protect the well-organized majority against the minority, and I wonder whether statutory carve-outs for certain religious groups may actually do the opposite of what was intended by the drafters of the First Amendment.

– Teneille