Writings and observations

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It is time for the Legislature to repeal the faith-healing exemption to Idaho’s statute prohibiting the injury of children.

Section 18-1501 of the Idaho Code penalizes conduct by “any person” that is likely to endanger the person or health of a child. This applies to parents but the statute has qualifying language that limits violations to rather egregious conduct. It was carefully crafted to limit governmental intrusion into the family setting.

However, the statute includes an exemption that has allowed some parents to refuse to provide readily available health care to their children, resulting in needless suffering and death. The exemption says that the “practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not for that reason alone be construed to have violated the duty of care to such child.” This language should be eliminated in order to protect some our most helpless and vulnerable citizens.

Adults can decide for themselves on healthcare matters. If they decide to forego medical intervention for themselves for religious reasons, that is their prerogative. The state has an interest in safeguarding the health and safety of minors who cannot speak for themselves. Our laws have numerous protections for children without religious exemptions – marital age, child labor, ability to contract, and the like. In my estimation, the right to have basic life-saving healthcare trumps those protections.

A courageous young woman, Linda Martin, recently spoke out in a Statesman ad to urge the repeal of the faith-healing exemption. As a former member of a group that denies basic medical care to its youngest members, she spoke with eloquence and authority about the injury inflicted on sick children in the group. She closed with this statement: “This is not a freedom of religion issue: this is a right to live issue.” Amen.

Since at least the 1980s, when I served as Idaho Attorney General, the Legislature has passed numerous laws intended to support the right to life by using the power of the government to require women to carry a fetus to term. To my knowledge, none of those measures contained a religious exemption.

The question arises as to whether the right to life of some children in our great state ceases upon birth. It is time for the Legislature to stand up for our children and to require that faith-healing parents provide basic healthcare to their children.

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Please welcome our new columnist – Jim Jones, former Idaho Supreme Court chief justice and a former Idaho attorney general.

Supreme Court nominee Neil Gorsuch expressed what many judges around the country were likely thinking when he commented that the President’s criticism of judges and courts was “demoralizing” and “disheartening” to the judiciary.

Whether such comments were rehearsed or spontaneous, they were on the mark. Not that judges have tender feelings – they often are criticized by unsophisticated litigants who lose in court. The disparaging criticism here came from the chief executive of our country, a person who has personally resorted to the courts of this country thousands of times to seek redress for perceived grievances.

Our system of justice is unrivaled in the world. One reason the United States became such an economic powerhouse is that we have a court system that is honest and even-handed. Litigants know that they will be listened to and treated fairly. Not every judge is perfect but the overwhelming majority are dedicated to the rule of law, both in state and federal courts.

The U.S. District Judge in Seattle who ruled first on the travel ban case was not a “so-called” judge. He was appointed by former President George Bush and confirmed by the U.S. Senate. The Ninth Circuit Court panel that heard the case on appeal acted as an appellate court should – it reviewed the record carefully and asked searching questions of both sides. The hearing was not “disgraceful” but conducted with fairness and dignity. The problem for the Government was that it provided no factual basis to support the ban, relying instead on the mantra that its decision could not be reviewed.

That argument might well prevail in Russia, where Putin gets everything he wants from his courts. It does not work so well in a country where wise founding fathers set up a system of checks and balances to keep government from overreaching. As part of that system, three co-equal branches of government were established – the executive, the legislative, and the judiciary. It is the responsibility of the judicial branch to call the balls and strikes when executive action is challenged as being in violation of statutes or the Constitution. This has occurred many times over the years in previous administrations.

It is fair game for a president or governor to criticize a court decision. But lambasting judges or courts for the decision is hurtful to the integrity of the judicial branch. Judges are ethically limited from speaking out to explain or justify a decision or to defend themselves against accusations made by disgruntled litigants. Unfair attacks on judges or the court system as a whole undermine public confidence in the courts.

I served 12 years on the Idaho Supreme Court and was impressed with the work of judges throughout the State–magistrate judges, district judges and appellate judges. I can’t recall any instance where a colleague made a decision based on ideology or personal beliefs. I can recall numbers of times when each of us decided a case contrary to our personal beliefs in order to be true to the law. That happens every day throughout the country. Our legal system is not “broken,’ or “disgraceful,”or “politically motivated.” Our court system is dedicated to the rule of law and will remain so unless it is eroded away by uninformed and unfair charges.

Three of the members of Idaho’s Congressional Delegation are lawyers and members of the Idaho State Bar. They should step forward to defend the integrity of the courts and judges.

Jim Jones served as a Justice of the Idaho Supreme Court from 2005 through 2016.

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