32 Ill. 2d 361 (1965)
205 N.E.2d 435
In re ESTATE OF BERNICE BROOKS, Alleged Incompetent, MARGARET I. ASTE et al., Appellees,
v.
BERNICE BROOKS et al., Appellants.
No. 38914.
Supreme Court of Illinois.
Opinion filed March 18, 1965.
KARL M. MILGROM, of Chicago, (W. GLEN How, Q.C., of Toronto, Canada, of counsel,) for appellants.
DANIEL P. WARD, State's Attorney, of Chicago, (EDWARD J. HLADIS,
FRANCES G. SOWA, and JOSEPH V. RODDY, Assistant State's Attorney, of
counsel,) for appellees.
Orders reversed.
*362 Mr. JUSTICE UNDERWOOD delivered the opinion of the court:
This is an appeal from the probate division of the circuit court of
Cook County which entered an order appointing a conservator of the
person of Mrs. Bernice Brooks, and allowed the conservator's request to
be authorized to consent, on behalf of Mrs. Brooks, to transfusions of
whole blood to her. The transfusions were made, and appellants, Mrs.
Brooks and her husband, now seek to have all orders in the
conservatorship proceedings expunged, and the petition therein filed
dismissed. Questions under both Federal and State constitutions confer
jurisdiction on direct appeal. U.S. Const., 1st, 5th and 14th
amendments; Ill. Const., art. VI, sec. 5; Supreme Court Rule 28-1.
On and sometime before May 7, 1964, Bernice Brooks was in the McNeal
General Hospital, Chicago, suffering from a peptic ulcer. She was being
attended by Dr. Gilbert Demange, and had informed him repeatedly during a
two-year period prior thereto that her religious and medical
convictions precluded her from receiving blood transfusions. Mrs.
Brooks, her husband and two adult children are all members of the
religious sect commonly known as Jehovah's Witnesses. Among the
religious beliefs adhered to by members of this group is the principle
that blood transfusions are a violation of the law of God, and that
transgressors will be punished by God. This organization's publication,
"Blood, Medicine and the Law of God", which had been filed by Mrs.
Brooks with her physician, states the principle: "The matter was not to
be taken lightly. Any violation of the law on blood was a serious sin
against God, and God himself would call the law violator to account. `As
for any man of the house of Israel or some alien resident who is
residing as an alien in your midst who eats any sort of blood, I shall
certainly set my face against the soul that is eating the blood, and I
shall indeed cut him off from among his people'. Leviticus 17:10". Also
a part *363 of the foundation for this belief is the admonition found
in the book of the Acts of the Apostles, 15:28-29: "For it seemed good
to the Holy Ghost, and to us, to lay upon you no greater burden than
these necessary things; that ye abstain from meats offered to idols, and
from blood, and from things strangled, and from fornication; from which
if ye keep yourselves, ye shall do well". Various other Biblical texts
are quoted as authority for the belief, including Genesis 9:3-4: "Every
moving animal that is alive may serve as food for you. As in the case of
green vegetation, I do give it all to you. Only flesh with its soul
its blood you must not eat". Premised upon the belief that "The blood
is the soul" (Deuteronomy 12:33) and that "We cannot drain from our body
part of that blood, which represents our life, and still love God with
our whole soul, because we have taken away part of `our soul our blood
' and given it to someone else" (Blood, Medicine and the Law of God, p.
8), members of Jehovah's Witnesses regard themselves commanded by God
to neither give nor receive transfusions of blood.
Mrs. Brooks and her husband had signed a document releasing Dr.
Demange and the hospital from all civil liability that might result from
the failure to administer blood transfusions to Mrs. Brooks. The
patient was assured that there would thereafter be no further effort to
persuade her to accept blood.
Notwithstanding these assurances, however, Dr. Demange, together with
several assistant State's attorneys, and the attorney for the public
guardian of Cook County, Illinois, appeared before the probate division
of the circuit court with a petition by the public guardian requesting
appointment of that officer as conservator of the person of Bernice
Brooks and further requesting an order authorizing such conservator to
consent to the administration of whole blood to the patient. No notice
of this proceeding was given any member of the Brooks family.
Thereafter, the conservator *364 of the person was appointed, consented
to the administration of a blood transfusion, it was accomplished and
apparently successfully so, although appellants now argue that much
distress resulted from transfusions due to a "circulatory overload".
We are met at the outset with appellees' contention that since the
blood transfusions have been given, the conservator has been discharged,
and the estate has been closed, this cause is now moot. As to this
question, language in a previous decision of this court (People ex rel.
Wallace v. Labrenz,
411 Ill. 618, 622-23) is particularly appropriate:
"Before we reach the merits, we meet the State's contention that the
case is now moot and should be dismissed because the blood transfusion
has been administered, the guardian discharged and the proceeding
dismissed. Because the function of courts is to decide controverted
issues in adversary proceedings, moot cases which do not present live
issues are not ordinarily entertained. `The general rule is that when a
reviewing court has notice of facts which show that only moot questions
or mere abstract propositions are involved or where the substantial
questions involved in the trial court no longer exist, it will dismiss
the appeal or writ of error'. People v. Redlich, 402 Ill. 270, 279.
"But when the issue presented is of substantial public interest, a
well-recognized exception exists to the general rule that a case which
has become moot will be dismissed upon appeal. (See cases collected in
132 A.L.R. 1185.) Among the criteria considered in determining the
existence of the requisite degree of public interest are the public or
private nature of the question presented, the desirability of an
authoritative determination for the future guidance of public officers,
and the likelihood of future recurrence of the question.
"Applying these criteria, we find that the present case falls within
that highly sensitive area in which governmental action comes into
contact with the religious beliefs *365 of individual citizens. * * * In
situations like this one, public authorities must act promptly if their
action is to be effective, and although the precise limits of
authorized conduct cannot be fixed in advance, no greater uncertainty
should exist than the nature of the problems makes inevitable. In
addition, the very urgency which presses for prompt action by public
officials makes it probable that any similar case arising in the future
will likewise become moot by ordinary standards before it can be
determined by this court. For these reasons the case should not be
dismissed as moot."
We accordingly proceed to a consideration of the issues.
It is argued by appellants that the absence of notice in any form to
Mrs. Brooks or her husband, who were readily available at the hospital,
constituted a denial of due process vitiating the entire proceedings;
that insufficient proof was presented to establish the patient's
incompetency (the doctor testified Mrs. Brooks was "semi-disoriented"
and not "fully capable" but also stated "I think she would consent to
surgery. It is the fact this is a transfusion of blood she objects to");
and that acceptance of medical treatment previously refused because of
religious and medical reasons (blood transfusions are not entirely free
from hazard) cannot be judicially compelled under the circumstances here
present.
While, under the particular circumstances here, some merit is to be
found in all of these contentions, we believe we should predicate our
decision upon the fundamental issue posed by these facts, i.e.: When
approaching death has so weakened the mental and physical faculties of a
theretofore competent adult without minor children that she may
properly be said to be incompetent, may she be judicially compelled to
accept treatment of a nature which will probably preserve her life, but
which is forbidden by her religious convictions, and which she has
previously steadfastly refused to accept, knowing death would result
from such refusal? *366 So far as we have been advised or are aware,
there is no reported decision in which this question has been squarely
presented and decided.
It is established that the commands of the First Amendment to the
United States Constitution relating to religious freedom are embraced
within the Fourteenth Amendment and by it extended to the States.
(Cantwell v. Connecticut,
310 U.S. 296, 303, 84 L. Ed. 1213, 60 S. Ct. 900, 903; School District of Abington Township v. Schempp,
374 U.S. 203,
215, 10 L. Ed. 2d 844, 83 S. Ct. 1560, 1568.) While the early decisions
in this area consider as a unit the First Amendment provisions that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof", the later opinions treat the
cases as falling within the Establishment Clause or the Free Exercise
Clause. It has been held that governmental actions cannot be proscribed
under the latter clause unless they are demonstrated to have a coercive
effect upon the individual, but the presence of that effect here is
self-evident.
The motivating factors underlying the constitutional separation of
church and State and the prohibitions against governmental interference
in matters of religion emanated from the circumstances prevailing in
many European countries during precolonial ages, and from the practices
among the colonies themselves prior to federation. The cruel and
oppressive measures adopted, and the punishments imposed to compel
conformity of all religious beliefs to those held by the most numerous
or powerful groups are too well known to require documentation. Even the
colonial governments legislated in this area, or attempted to do so,
taxing inhabitants against their will for the support of religion or a
particular sect, compelling attendance at worship meetings with various
penalties including death provided for those who failed or refused to
comply, and punishing those nonconformists whose opinions were
considered heretical. The controversy culminated in the First
Amendment's guarantee *367 to the individual of freedom from
governmental domination in his religious beliefs and practices, and the
point at which interference therewith may be constitutionally
permissible is well illustrated by the proceedings of the Virginia House
of Delegates. That body, after a spirited debate,
adopted a bill "for
establishing religious freedom" drafted by Thomas Jefferson (1 Jeff.
Works 45; 2 Howison, Hist. of Va. 298)
the preamble of which stated (12
Hen. Stat. 84) "to suffer the civil magistrate to intrude his powers
into the field of opinion, and to restrain the profession or propagation
of principles on supposition of their ill tendency, is a dangerous
fallacy which at once destroys all religious liberty" and "it is time
enough for the rightful purposes of civil government for its officers to
interfere when principles break out into overt acts against peace and
good order". The line of demarcation between that which may and that
which may not be proscribed as set forth in the concluding portion of
this quotation has been manifest in the philosophy of this nation and
decisions of its courts during the intervening years. Reynolds v. United
States,
98 U.S. 145, 25 L. Ed. 244; Davis v. Beason,
133 U.S. 333, 33 L. Ed. 637.
Appellees argue that society has an overriding interest in protecting
the lives of its citizens which justifies the action here taken. As
supporting this conclusion they rely upon the compulsory vaccination
cases (e.g. Jacobson v. Massachusetts,
197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358);
the polygamous marriage proscriptions (Reynolds v. United States,
98 U.S. 145, 25 L. Ed. 244, Davis v. Beason,
133 U.S. 333,
33 L. ed. 637);
those cases sustaining statutes prohibiting the
handling of snakes during religious rituals (Lawson v. Commonwealth, 291
Ky. 437, 164 S.W.2d 972; Harden v. State, 188 Tenn. 17, 216 S.W.2d
708);
People ex rel. Wallace v. Labrenz, 411 Ill. 618,
wherein we upheld the appointment of a guardian who consented to a
blood transfusion administered to the minor child of members of *368
Jehovah's Witnesses; and Application of President and Directors of
Georgetown College, Inc. (D.C. cir.) 331 Fed. 2d 1000, cert. denied 84
S. Ct. 1883,
involving a blood transfusion to an adult member of the
same sect.
These cases are not determinative of the instant issue, and some are,
in fact, supportive of a conclusion contrary to that urged by
appellees. We believe the compulsory vaccination cases inapposite since
society clearly can protect itself from the dangers of loathsome and
contagious disease, a question with which we are not concerned; the
polygamous marriage bans were upheld because the practice consisted of
overt acts determined to be deleterious to public morals and welfare (no
overt, immoral activity appears here); the Lawson and Harden "snake
handling" prohibitions also involved affirmative action deemed
detrimental to the public welfare; and Labrenz involved blood
transfusions to a minor child; the Georgetown College case was an
altogether unique proceeding in which a single Federal Court of Appeals
judge entered an order allowing a blood transfusion to an adult member
of Jehovah's Witnesses. A doctor and hospital authorities had appeared
originally before a Federal district judge and orally requested entry of
an order permitting blood transfusions to be administered to a patient
evidently in extremis. The request was denied. Later that same day, an
"appeal" was taken to a single Court of Appeals judge, and the same
order was requested of him. In reaching his determination, the judge
went to the hospital and spoke with the patient and her husband. The
husband said that while his wife was obliged to "abstain from blood", if
the court ordered a transfusion, the matter would be out of his hands.
The patient stated that the transfusion would be against her will, but
she also intimated that the court could take the matter from her hands.
The judge then entered the order, determining to "act on the side of
life".
In subsequently denying a petition for rehearing en *369 banc, the
opinions filed by other members of that court indicate their misgivings
regarding the substantive and procedural aspects of the action taken.
Contrary to appellee's interpretation, we read the opinions as
suggesting a majority of the court would have refused the order.
However, irrespective of the merits of that case, it is readily
distinguishable from the instant one. There, the person alleged to be in
extremis was the mother of minor children. The State might well have an
overriding interest in the welfare of the mother in that situation, for
if she expires, the children might become wards of the State. Such
reasoning is inapplicable here since all members of the Brooks family
are adults.
Similarly, the holding of the New Jersey Supreme Court (Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N. J. 421,
201 A.2d 537
(1964), cert. denied, 377 U. S. 985) authorizing blood transfusions for
a nonconsenting Jehovah's Witnesses member who was quick with child is
not here persuasive since the court there held it unnecessary to
determine whether the mother could be compelled to accept a transfusion
to save her own life because it was so inextricably interwoven with that
of the child as to render it impracticable to distinguish between them.
We believe Jefferson's fundamental concept that civil officers may
intervene only when religious "principles break out into overt acts
against peace and good order" has consistently prevailed in varying
forms since Reynolds v. United States and Davis v. Beason.
In Cantwell v. Connecticut,
310 U.S. 296,
84 L. Ed. 1213, 60 S. Ct. 900, where a statute imposed unconstitutional
conditions upon fund solicitation for religious purposes, the court
said at page 903 (S.Ct.) in speaking of the First Amendment safeguard of
the free exercise of any chosen form of religion: "Thus
the Amendment
embraces two concepts, freedom to believe and freedom to act. The first
is absolute but, in the nature of things, the second cannot *370 be.
Conduct remains subject to regulation for the protection of society."
But the court there found no "clear and present danger" appeared.
In Prince v. Massachusetts,
321 U.S. 158,
88 L. Ed. 645, 64 S. Ct. 438,
the judicial difficulties inherent in a
delineation of the boundary line between those expressions of religious
convictions in the form of public acts which may be suppressed and those
which are constitutionally protected were well demonstrated in a 5-4
opinion upholding a statute of Massachusetts against the contention that
a child member of Jehovah's Witnesses was constitutionally protected by
the First Amendment in selling the organization's magazines on the
streets. The court there based its decision upon the injury to society
involved in knowingly permitting a child of tender years to violate the
child labor laws and the hazards involved in permitting such child upon
the public streets. While there stating that "the state's authority over
children's activities is broader than over like action of adults", the
court's decision was apparently prompted by the majority's belief that
State action impinging upon a claimed religious freedom is sustainable
when shown to be necessary for or conducive to society's protection
against some clear and present danger.
In West Virginia State Board of Education v. Barnette,
319 U.S. 624,
87 L. Ed. 1628, 63 S. Ct. 1178,
the court nullified a mandatory school
program requiring all students to salute the flag and recite the pledge
of allegiance. The basis therefor was a violation of the constitutional
guarantees of freedom of speech and freedom of woreship. The language of
the majority opinion at page 1187 (S.Ct.) is apt:
"We can have
intellectual individualism and the rich cultural diversities that we owe
to exceptional minds only at the price of occasional eccentricity and
abnormal attitudes. When they are so harmless to others or to the State
as those we deal with here, the price is not too great. But freedom to
differ is not limited to things that do not matter much. *371 That would
be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
[Emphasis added]. If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their faith
therein". Also appropriate is the language of the specially concurring
opinion of Justices Black and Douglas at page 1188: "No well ordered
society can leave to the individuals an absolute right to make final
decisions, unassailable by the State, as to everything they will or will
not do. The First Amendment does not go so far.
Religious faiths,
honestly held, do not free individuals from responsibility to conduct
themselves obediently to laws which are either imperatively necessary to
protect society as a whole from grave and pressingly imminent dangers
or which, without any general prohibition, merely regulate time, place
or manner of religious activity". (Emphasis added)
In School District of Abington Township v. Schempp,
374 U.S. 203,
10 L. Ed. 2d 844, 83 S. Ct. 1560, 1572, a school prayer case decided
under the Establishment Clause of the First Amendment, the court in
commenting on the Free Exercise Clause stated on page 1574 (S.Ct.):
"The
place of religion in our society is an exalted one, achieved through a
long tradition of reliance on the home, the church and the inviolable
citadel of the individual heart and mind. We have come to recognize
through bitter experience that it is not within the power of government
to invade that citadel, whether its purpose or effect be to aid or
oppose, to advance or retard. In the relationship between man and
religion, the State is firmly committed to a position of neutrality".
In addition to the factors apparent in the decisions quoted from, the
concurring opinion of Mr. Justice Brennan in the Schempp case poses
another distinction when at page *372 1586 he states: "But we must not
confuse the issue of governmental power to regulate or prohibit conduct
motivated by religious beliefs with the quite different problem of
governmental authority to compel behavior offensive to religious
principles."
We have quoted at some length from these decisions in order to
demonstrate what we believe to be the controlling elements in
controversies akin to that now before us. It seems to be clearly
established that the First Amendment of the United States Constitution
as extended to the individual States by the Fourteenth Amendment to that
constitution, protects the absolute right of every individual to
freedom in his religious belief and the exercise thereof, subject only
to the qualification that the exercise thereof may properly be limited
by governmental action where such exercise endangers, clearly and
presently, the public health, welfare or morals. Those cases which have
sustained governmental action as against the challenge that it violated
the religious guarantees of the First Amendment have found the
proscribed practice to be immediately deleterious to some phase of
public welfare, health or morality. The decisions which have held the
conduct complained of immune from proscription involve no such public
injury and no danger thereof.
Applying the constitutional guarantees and the interpretations
thereof heretofore enunciated to the facts before us we find a competent
adult who has steadfastly maintained her belief that acceptance of a
blood transfusion is a violation of the law of God. Knowing full well
the hazards involved, she has firmly opposed acceptance of such
transfusions, notifying the doctor and hospital of her convictions and
desires, and executing documents releasing both the doctor and the
hospital from any civil liability which might be thought to result from a
failure on the part of either to administer such transfusions. No minor
children are involved. *373 No overt or affirmative act of appellants
offers any clear and present danger to society we have only a
governmental agency compelling conduct offensive to appellant's
religious principles. Even though we may consider appellant's beliefs
unwise, foolish or ridiculous, in the absence of an overriding danger to
society we may not permit interference therewith in the form of a
conservatorship established in the waning hours of her life for the sole
purpose of compelling her to accept medical treatment forbidden by her
religious principles, and previously refused by her with full knowledge
of the probable consequences. In the final analysis, what has happened
here involves a judicial attempt to decide what course of action is best
for a particular individual, notwithstanding that individual's contrary
views based upon religious convictions. Such action cannot be
constitutionally countenanced.
It is well stated in Barnette v. West Virginia State Board of Education,
47 F. Supp. 251,
253 (aff'd. 319 U. S. 624):
"Courts may decide whether the public
welfare is jeopardized by acts done or omitted because of religious
belief; but they have nothing to do with determining the reasonableness
of the belief. That is necessarily a matter of individual conscience.
There is hardly a group of religious people to be found in the world who
do not hold to beliefs and regard practices as important which seem
utterly foolish and lacking in reason to others equally wise and
religious; and for the courts to attempt to distinguish between
religious beliefs or practices on the ground that they are reasonable or
unreasonable would be for them to embark upon a hopeless undertaking
and one which would inevitably result in the end of religious liberty.
There is not a religious persecution in history that was not justified
in the eyes of those engaging in it on the ground that it was reasonable
and right and that the persons whose practices were suppressed were
guilty of stubborn folly hurtful to the general *374 welfare. * * * The
religious freedom guaranteed by the First and Fourteenth Amendments
means that he shall have the right to do this, whether his belief is
reasonable or not, without interference from anyone, so long as his
action or refusal to act is not directly harmful to the society of which
he forms a part".
And a portion of Judge Burger's opinion (joined in by Judges Miller
and Bastian) in the Georgetown College case (331 F. 2d 1000) at page
1016 is here appropriate: "Mr. Justice Brandeis, whose views have
inspired much of
the `right to be let alone' philosophy, said in
Olmstead v. United States,
277 U.S. 438,
478, 48 S. Ct. 564, 572, 72 L. Ed. 944 (1928), (dissenting opinion):
`The makers of our Constitution * * * sought to protect Americans in
their beliefs, their thoughts, their emotions and their sensations. They
conferred, as against the Government, the right to be let alone the
most comprehensive of rights and the right most valued by civilized
man.' Nothing in this utterance suggests that Justice Brandeis thought
an individual possessed these rights only as to sensible beliefs, valid
thoughts, reasonable emotions, or well-founded sensations. I suggest he
intended to include a great many foolish, unreasonable and even absurd
ideas which do not conform, such as refusing medical treatment even at
great risk".
While the action of the circuit court herein was unquestionably
well-meaning, and justified in the absence of decisions to the contrary,
we have no recourse but to hold that it has interfered with basic
constitutional rights.
Accordingly, the orders of the probate division of the circuit court of Cook County are reversed.
Orders reversed.
