(The quote is at the end of the article) Sect ruling raises moral, legal questions The Providence Journal Bulletin 3.9.2000 BY JONATHAN D. ROCKOFF * The court-ordered hospitalization of Rebecca Corneau to monitor the health of her unborn child has some questioning whether Massachusetts authorities have overstepped their authority.

* * * When a Massachusetts district attorney last week sought the court- ordered hospitalization of a pregnant Attleboro woman whose religious sect shuns medical treatment, he opened a hornet's nest of legal, religious and social issues.

Far from resolving matters, Juvenile Court Judge Kenneth P. Nasif's decision on Thursday ordering the confinement of Rebecca Corneau only deepened the controversy over religious freedom, women's rights and the state's role in it all.

Bristol County District Attorney Paul F. Walsh Jr. lauded the decision, saying it would safeguard the health of an unborn child and perhaps save the child's life.

But some lawyers, scholars and advocates for women's rights attacked the order as an infringement on women's control of their bodies and a violation of the constitutional separation of church and state.

"If they can detain her because she refuses medical treatment, then every pregnant woman is vulnerable because every pregnant woman is making decisions," said Lynn Paltrow, director of the National Advocates for Pregnant Women, in New York.

"You have a fetus who is not even a person who has more rights than an adult woman to exercise her religious beliefs ... and to privacy in her reproductive health decision-making," she said.

Wendy Murphy, a lawyer who teaches reproductive rights at New England School of Law, said she'll ask the Supreme Judicial Court Tuesday to overturn Nasif's ruling, the Associated Press reported yesterday.

"It's unconstitutional to jail her because she refused medical help," Murphy said. "The only argument thus far is that she may have done something in the past that led to a baby's death. That's woefully inadequate. It's speculation and violation of due process."

Murphy said she'll seek the backing of the National Organization for Women.

THE DISPUTE touches several complex issues, from the rights to privacy and the free exercise of religion to the sanctity of human life and the proper role of the state.

Lawyers said it would have been unnecessary to address such issues in Juvenile Court if Corneau were already incarcerated, or if the Massachusetts child welfare agency had authority over unborn children.

But neither is the case.

Investigators are looking into the death of Corneau's young son, Jeremiah, who died shortly after birth last year, but they have yet to press charges. And federal law stipulates the Department of Social Services has jurisdiction only after a child born.

If there is a legitimate case of abuse or neglect, lawyers said, the Massachusetts agency could go so far as to ask hospitals for notification when a child is born so they can remove the child immediately upon birth.

But Laureen D'Ambra, the child advocate in Rhode Island, said there is no guarantee Corneau would use a hospital, or keep her baby in a hospital long enough for child welfare officials to find the baby and take it away.

So to be sure of gaining custody of the baby, lawyers said, District Attorney Walsh needed to get a court order forcing medical treatment on Corneau.

And it is this move that has triggered concerns.

"Until there is a child born," said Sarah Wunsch, staff lawyer of the American Civil Liberties Union of Massachusetts, "the state doesn't have a right to take somebody into custody because they don't like the way she is handling her pregnancy."

Wunsch said Corneau's religious affiliation must have played a role in the court's decision, and she said that was wrong because Corneau has the right to choose not to go to a doctor out of sincere religious beliefs.

IN ADDITION TO Corneau's son, another child of a sect member, Samuel Robideaux, is presumed to be dead. He was first reported missing in September 1999 by Dennis Mingo, a former sect member who found notes that documented how Samuel had been placed on a special diet and was weak from hunger. Prosecutors allege his death from starvation could have been prevented with proper medical care. Eight group members, including Corneau's husband, are being held for refusing to testify before a grand jury investigating the two deaths.

The group's religious beliefs are a bit of a mystery. In the decision authorizing Corneau's confinement, Judge Nasif said the sect rejects government, society, technology and medicine.

Nasif in his written decision described the cult as "extreme and bizarre" and "dangerous and destructive." He did not discuss the evidence, but said it "raised concerns" warranting Corneau's confinement.

Many lawyers assailed Nasif's reasoning. They said the U.S. Supreme Court cases legalizing abortion give states an interest in continuing pregnancy, but not in regulating it as the court order does.

"What you put in your body, and how you control your body, is at the center of the right to privacy," said Sara Rapport, a civil rights and criminal defense lawyer at Tillinghast, Licht, Perkins, Smith &

Cohen.

She said she thinks the judge did not have sufficient evidence to make such an intrusive ruling, and may have ruled out of disagreement with the religious sect's beliefs.

"That is clearly influencing his judgment," Rapport said.

But Edward Eberle, a constitutional law professor at the Ralph R.

Papitto School of Law at Roger Williams University, said the state does have a recognized interest in protecting unborn children, particularly when they can live outside the womb.

Under the U.S. Supreme Court's abortion rulings, government normally cannot regulate pregnancy, but the potential for death could be a sufficient state interest to justify Corneau's confinement, Eberle said.

And Eberle does not think the constitution's prohibition on governmental interference with religion would bar the confinement.

In a 1990 decision, he said, the court weakened the free exercise clause, as the First Amendment provision protecting the practice of religion is called.

In that decision, the court upheld a state law that punished two American Indians for participating in a religious ceremony. The court said the law was constitutional because it did not target religion specifically.

"We take rights to a more absolute degree than most if not all other societies," Eberle said. "But even in our society, rights are not absolute."

The rights are counterbalanced, Eberle said, by the state's obligations to protect the health of its citizens.

PROSECUTORS throughout the country have tried before to use a woman's pregnancy as a peg for taking legal action against her.

In Massachusetts in 1990, a pregnant addict was charged with delivering drugs to a minor. A judge in Plymouth Superior Court dismissed the charges, saying they would deter pregnant women from seeking prenatal care for fear of prosecution and thereby endanger unborn children.

Courts in twenty states have rejected such criminal prosecutions, according to the Center for Reproductive Law and Policy. And courts in six states have rejected penalizing women in civil actions for possible harm to unborn children.

Civil cases based on religious beliefs are rare, said Paltrow, of the National Advocates of Pregnant Women. In such cases, courts in Illinois and the District of Columbia have ordered caesarian sections.

What may be a factor in the Massachusetts case, said Rachel Roth, author of Making Women Pay: The Hidden Cost of Fetus Rights, is an effort during the last 25 years to undermine women's rights by asserting rights for unborn children.

Roth said the U.S. House of Representatives passed a bill last year that would make violence against fetuses a federal crime, and companies have placed job restrictions on pregnant women working near hazardous materials.

"This is where the battles over abortion or reproductive rights have shifted," said Roth, an assistant professor of political science and women's studies at Washington University in St. Louis.

"It does not appear that anyone has suggested this woman is mentally incompetent to make decisions," Roth said about the Courneau case.

"It is just that they don't like the decisions she is making."

Roth believes Corneau's religious beliefs are playing a role.

"Because this woman is being described as a member of a religious cult," Roth said, "people are questioning her actions."

Frank K. Flinn, an expert on religious cults, also argued that Nasif's decision was rooted in concern with Courneau's religious beliefs.

"From the word go, it is obvious the religious beliefs have been a factor," said Flinn, an adjunct professor of religious studies at Washington University. "Is this a heresy trial? Are they trying people for being heretics to American medical science?"

Generally speaking, Flinn said, American mainstream culture labels non-mainstream religious groups as cults, stereotyping them as having deranged leaders, sexual hanky-panky and brainwashing.

Flinn said this stereotyping ignores the common history of cults in the United States.

But Flinn said it was not a problem until recently.

"The courts in the past have always protected the innovative and the new, the different and the non-mainstream," Flinn said. "The present court has become a majoritarian institution.

"It has interpreted the Constitution to the benefit of society at large to the detriment of minority groups."

DESPITE SUCH CONCERNS about the status of religious freedom in the United States, members of other faiths maintained the nation is exceedingly tolerant of differences, and they do not feel threatened.

James N. Pellechia, spokesman for the Watchtower Society, the legal arm of the Jehovah's Witnesses, said his faith has used the courts to "build up a bulwark of protections" that remain strong today.

John Loomis, a scientologist from Waterville, Maine, a spokesman for the group, said parents should have the freedom to choose the nature of medical attention. His child was born at home, he said.

But Loomis, who is a dentist, said he agreed with the court's decision in the Courneau case because her first baby had disappeared and the state has a valid interest in protecting people from harm.

Besides, Loomis added, "Whether this had to do with religious beliefs is beside the question. This is a moral obligation for her."

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