Asks Manslaughter Charge in Child’s Death : Prosecutor Seeks Trial for Christian Scientist

The California Supreme Court, in a novel test of religious freedom, was urged by a state prosecutor Tuesday to permit a Christian Scientist to be tried on a charge of manslaughter in the death of an ailing child whom she chose to treat with prayer alone.

“Parents may be free to make martyrs of themselves--but not to make martyrs of their children,” state Deputy Atty. Gen. Clifford K. Thompson Jr. told the court.

But lawyers for the accused mother and the church asked the justices to bar her prosecution, saying it would conflict with a state law recognizing prayer-healing and with the constitutional right to free exercise of religion.

“Society has recognized the practice of Christian Science as a reasonable and acceptable alternative to conventional care,” said Warren Christopher, a Los Angeles lawyer representing the church as a “friend of the court.”

“The court should not put (parents) through the additional trauma, the additional tragedy, of a trial,” he said.

Manslaughter Case

The justices heard hourlong arguments in the widely watched case of Laurie G. Walker of Sacramento, charged with involuntary manslaughter and felony child endangerment in the 1984 death of her 4-year-old daughter, Shauntay Walker.

A ruling in the case is expected later this year. Two other prosecutions of Christian Scientist parents who refused conventional care for dying children are pending and the outcome also could affect other religions that practice some form of faith-healing.

The Walker child had come down with fever and other flu-like symptoms. When her condition worsened, the mother summoned an accredited Christian Science practitioner to pray for the child, ignoring a relative’s pleas to summon a physician. Shauntay Walker finally died of acute meningitis on the 17th day of her illness.

State Statute Invoked

Lawyers for the mother and the church contend that a 1976 state statute effectively bars prosecution of parents who choose spiritual treatment for a child according to the tenets of a recognized religion.

The law recognizes prayer as “remedial care” for a child, but the state contends that parents still may be liable for criminal negligence for failing to provide medical aid to a dying child.

Attorney Thomas A. Volk of Sacramento, representing Walker, encountered sharp questioning over whether the 1976 law granted an unconstitutional religious preference--in this instance, to Christian Scientists.

Justice Stanley Mosk, noting that the statute recognizes spiritual healing only by an “accredited” religious practitioner, asked whether the law did not effectively exclude prayer by Catholic priests, Jewish rabbis or others who are not “accredited” healers.

“Isn’t this creating a preference for a religion, contrary to the First Amendment?” Mosk asked.

Could Include Others

Volk conceded the point but argued that the courts could properly construe the statute to include other religions and thus avoid the constitutional problem.

The attorney also argued that criminal manslaughter and child-endangerment prosecutions are not necessary to protect children in view of other laws that allow authorities to intervene to require care for a child whose parents oppose conventional medical treatment.

But Justice Allen E. Broussard noted that not all seriously ailing children in such situations would come to the attention of authorities. “What protection does the state give then?” he asked.

Thompson, defending the charges brought against Walker, said that while the 1976 law gives limited recognition to prayer-healing, it is not to be regarded as a substitute for medical care for sick children.

“The only question is whether a reasonable person would know this child was dying,” he said. “If the answer is ‘yes,’ then there is criminal liability.”

Constitutional Prohibitions

In granting what seems to be a religious preference to Christian Scientists, the 1976 law collides with constitutional prohibitions against government establishment of religion and must be struck down, Thompson said. “The law openly discriminates,” he said, by pinning “a badge of inferiority” on other religions.

The justices also heard argument in a high-stakes battle between trial lawyers and the insurance industry in which lawyers for Fireman’s Fund Insurance Cos. are asking the court to overturn a milestone 1979 ruling allowing accident victims to sue a policyholder’s insurer for damages for wrongfully failing to settle a claim.

Such suits can result in punitive damage awards far in excess of what the policy itself may provide. The plaintiffs’ lawyers contend that the ruling deters insurers from delaying or refusing settlements in “bad faith.” Insurers argue that the decision unfairly allows plaintiffs to force bigger settlements and inevitably results in higher premium costs to the public.

OKd by Legislature

Mosk, the author of the 1979 ruling, asked why the court should take the unusual step of overturning the decision when the Legislature had not acted to do so.

Roy G. Weatherup of Los Angeles, representing Fireman’s Fund, replied that a legislative effort to overturn the ruling had been stalled by a “powerful interest group,” a thinly veiled allusion to the California Trial Lawyers Assn.

But isn’t the insurance industry also a “powerful group?” Mosk asked.

“Yes,” Weatherup said, “but not quite as powerful as another group.”

Bennet Olan, a Los Angeles lawyer representing an accident victim who sued Fireman’s Fund, defended the 1979 ruling as instrumental in protecting consumers and encouraging insurers to “clean up their acts.”

“(Insurers) have to be reminded that they do have duties to the public and they do have standards to follow,” Olan said.