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A 2-year-old girl who died of pneumonia in her home after receiving no medical treatment has become the latest of at least 10 child members of the Faith Tabernacle Congregation religious sect in Pennsylvania to die from treatable diseases, according to the Associated Press. Members of the fundamentalist sect do not believe in the use of modern medical treatment and are against seeking out such treatment for oneself or one’s children.

The parents of Ella Grace Foster, who died in early November, were charged last week with involuntary manslaughter and child endangerment for failing to provide proper medical care to their daughter when she began showing symptoms of illness that persisted for two days before she succumbed, the AP reports. The couple—Jonathan and Grace Foster of Upper Tulpehocken Township, Pennsylvania—told police the girl exhibited signs of lethargy and sore throat, then irregular breathing, before passing away in her father’s arms Nov. 8. They also told police the child’s death was “God’s will,” and that taking her for medical treatment would have been “frowned upon” and “against their religion,” the AP report states.

There is a 95 percent chance that Ella would have survived the illness if she were treated with antibiotics, one forensic pathologist told the investigators. The Fosters, who have six more young children, were released home on unsecured bail but required to seek out medical care if any of their other children fall ill, says the AP. Compliance with this order will be monitored by child welfare officials.

The Fosters are not the first members of their religious sect to be formally prosecuted for the death of a child as the result of withheld medical care. Herbert and Catherine Schaible of Northern Philadelphia were charged with and convicted of third degree murder, and sentenced to 3 ½ to 7 years and 30 subsequent months of probation in March 2014 after the death of their 8-month-old son Brandon, as reported by NBC Philadelphia. Brandon died from a combination of bacterial pneumonia, a group B streptococcus infection and dehydration in April 2013, which were treated only with prayer, according to NBC Philly. Brandon’s death came four years after the preventable pneumonia death of another one of the couple's sons, 2-year-old Kent. The Schaibles were sentenced to 10 years of probation in Kent's death, leading to the third degree murder charge in Brandon’s death. 

The Schaibles were members of First Century Gospel Church, which is an offshoot of the Faith Tabernacle Congregation, NBC Philadelphia reports.

“Under Pennsylvania’s Child Protective Services Law—PA Code 3490.4—the definition of ‘child abuse’ includes failing to provide for a child’s adequate medical care,” Philadelphia-based criminal defense attorney Michael Fienman told Forensic Magazine. “However, there is an exception when a county agency performs an investigation and finds that medical care was withheld because of seriously held, bona fide religious beliefs. The statute allows for the county agency to monitor the child and to seek court-ordered medical care when the lack of such care threatens the child’s life or long-term health.”

This, however, does not mean that child abuse and neglect are permitted for parents with certain religious beliefs, Feinman said.

“Religious freedom can be a complicated legal issue when the health or life of a child is involved,” Fienman explained. “Americans are guaranteed the free exercise of their religion under the First Amendment, but children also have rights to be free from abuse and neglect. While religious beliefs may sometimes be a defense, parents also may find themselves criminally liable when the refusal to seek medical care endangers the life of a child.”

First Amendment attorney Samuel Ventola added that freedom of religion does not protect parents from religion-motivated or -influenced child abuse or neglect nationwide, although some states may include exceptions within their own laws.

“First Amendment religion rights were severely cut back by the Supreme Court's 1990 decision in Employment Division v. Smith,” Ventola told Forensic Magazine. Employment Division v. Smith specifically ruled that the religious use of illegal drugs was not protected by the First Amendment, and created a new precedent for interpretation of the Amendment.

“Generally, unless there is a state statute providing protection to religious decisions regarding healthcare, there will not be a First Amendment defense to cases against parents based upon failure to seek health care or negligent selection of health care,” Ventola concluded.

No such statute exists in Pennsylvania, according to the Associated Press, beyond the exception mentioned by Fienman. When it comes to the death of a child, the First Amendment will not shield parents from prosecution in cases of medical neglect.

An organization called Children’s Healthcare Is a Legal Duty Inc., or CHILD, which tracks cases of religion-based medical neglect and advocates against religion exemptions from child healthcare, says that Ella Foster is the 79th victim of such neglect since they began counting in 1982, the Reading Eagle reports. Rita Swan, cofounder of CHILD and former Christian Scientist whose son Matthew died after failed faith healing, told the Reading Eagle that while many deaths have gone unprosecuted, those that have been have mostly led to convictions due to the strength of each case and courts’ recognition that freedom of religion does not come before a child’s right to health and wellbeing.

Only six U.S. states have laws in place that make religious exceptions in cases of negligent homicide and manslaughter, which can include medical neglect cases, according to a February 2015 report by Al Jazeera America. In Idaho, the report says, parents who believe in “spiritual healing” are completely exempt from conviction when a child dies as a result of withheld medical treatment.

Pew Research further reported in August 2016 that most states—34 and Washington D.C.—offer some form of religious exemption, including Pennsylvania, as mentioned by Fienman. However, Pennsylvania and 16 other states that do have religious exemptions also have statutes that specify medical treatment for an ill child can be court-ordered against the parent’s wishes.

Jonathan and Grace Foster appeared in court for a hearing on Wednesday, during which they defended their constitutional right to religious freedom, but they were ordered to stand trial by the district magistrate and scheduled to appear in court again on March 13, WMFZ-TV reports. According to Pennsylvania law, involuntary manslaughter by a parent or guardian against a child under the age of 12 is a second degree felony and can result in a sentence of up to 10 years in prison. 

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