Religion and torts

[Michael MASINTER]

        Whether approached as an unreasonable failure to avoid the
avoidable consequences of another's wrong, or as a supervening cause of
death, doesn't the question come back to whether the refusal of a
transfusion was unreasonable?  And if that is the question, then isn't
this a case which highlights the tension in tort law over the meaning and
assessment of reasonableness?  Conventional doctrine teaches that
reasonableness denotes an objective rather than a subjective inquiry; the
belief that conduct is reasonable, or for that matter, necessary, may
clothe it with good faith, but it does not establish that it *is*
reasonable.  Bad faith, dishonestly motivated conduct can be reasonable --
that is the lesson both of recent fourth amendment pretextual stop cases,
and of qualified immunity law, which instruct that the determination of
reasonableness should be made without regard to the state of mind of the
actor.

        But we need not tarry over state of mind; nobody questions (or
should question) the sincerity of the belief motivating the refusal of a
transfusion.  But unless the common law has been wrong since time out of
mind, erroneously characterizing some conduct as unreasonable per se and
other conduct as reasonable per se, sincerely held is not a synonym for
reasonable.

        So what makes conduct reasonable or unreasonable?  Many cases
assess reasonableness by resort to prevailing community standards.  As
Eugene has already pointed out, they import a (poorly) disguised
majoritarian standard which leaves minority religious practices -- here
the Jehovahs Witnesses refusal of transfusions -- at risk.  But we only
rarely have to ask the question in the context of religious practices; our
libertarian streak, reflected in the free exercise clause, dictates
noninterference in personal religious choices without regard to their
reasonableness by majoritarian standards.  It may be unreasonable (and by
majoritarian standards clearly is unreasonable) for me to refuse to eat
leavened bread tonight, but it does not matter, for I am free to make
that choice.  Deference here is toothy; it extends beyond the ritual
insistence on matzoh to the deliberate infliction of pain on my sons (who
screamed lustily but not to reaffirm their faith during their bris) and to
the freedom to choose inevitable death by refusing a transfusion.  But in
each case, we defer without regard to the reasonableness of the belief or
the conduct; we don't even ask.  When choices do not implicate others, we
don't require that they be reasonable.

        But the estate in the New York litigation does not seek to protect
the decedent's freedom; the litigation is an attempt to enlist state power
to take money from the defendant.  Libertarianism is not much of a guide
here; we can leave the defendants with their money without sacrificing the
decedent's freedom to refuse transfusions.  Rather, the question is who
should pay for the consequences of the decedent's freedom -- heirs or the
negligent doctor?  If the rights of the heirs derive from their
relationship to the decedent, then why should they not be bound by her
choice to refuse a transfusion -- bound by subjecting her decision to an
independent inquiry into reasonableness?  If her choice was reasonable,
then the doctor should pay; if not, then their derivative claims should
be reduced accordingly.

        It seems that we could decided reasonableness by either of two
means here -- resort to community standards (the majoritarian standard),
or by other empirically verifiable, rationally consistent evidence tending
to show reasonableness. The belief is, by this standard, irrelevant, since
we lack the institutional competence to assess the reasonableness of
religious beliefs.  What matters is the conduct, and the empirically
forseeable consequences of the conduct.  We are back to epistemology, and
the only epistemology we recognize for assessing reasonableness is the
epistemology of the enlightenment.  By that standard, the refusal of a
transfusion is unreasonable, for it is very likely to produce a speedy and
avoidable death. It may also lead to salvation, but we cannot ever know
that, and lack the means even to investigate it.  Accordingly, the claim
that the choice was a reasonable is likely to fail.

        I hear echoes of an exchange with Professor McConnell from some
time ago; then the case was McKown, but the issues seem intertwined.  Ms.
McKown claimed her failure to seek medical treatment, or even to report
her child's diabetic coma, was reasonable by the standards of her faith.
Here the plaintiffs claim that they should recover for the loss of the
decedent's life because her conduct in refusing a transfusion was
reasonable by the standards of her faith.  Both seek the state's
imprimatur of reasonableness in the the absence either of "overwhelming
agreement" (per Prof Greene) a/k/a grounding in the dominant, majoritarian
culture (per Prof Volokh), or empirical support for the claim, one to
excuse a death, the others to recover for it.  Neither Ms McKown nor the
plaintiffs here seeks to vindicate the libertarian freedom to choose.


        I leave to the law and econ folks (if there are any on the list)
the economic analysis of reasonableness here; it seems clear enough to me
that by shifting to the doctor the full cost of the avoidable death, we
make the rest of us who would mitigate by accepting a transfusion
subsidize through higher medical costs the choice of the decedent; like
the bumper stickers say, malpractice happens.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu