551-4 Lesson four
1. Kentucky statutes on exceptions to consent—see attached KRS 304.40-320
and KRS 214.185
2. American Medica
551-4 Lesson four
1. Kentucky statutes on exceptions to consent—see attached KRS 304.40-320
and KRS 214.185
2. American Medical Association ethics guidance READ parts 2.1.1 and 2.1.2
2. In re Brown—-attached at the end of this lesson
Kentucky Revised Statute 304.40-320
Informed consent — When deemed given.
In any action brought for treating, examining, or operating on a claimant wherein the
claimant’s informed consent is an element, the claimant’s informed consent shall be
deemed to have been given where:
(1) The action of the health care provider in obtaining the consent of the patient or
another person authorized to give consent for the patient was in accordance with the
accepted standard of medical or dental practice among members of the profession
with similar training and experience; and
(2) A reasonable individual, from the information provided by the health care provider
under the circumstances, would have a general understanding of the procedure and
medically or dentally acceptable alternative procedures or treatments and substantial
risks and hazards inherent in the proposed treatment or procedures which are
recognized among other health care providers who perform similar treatments or
(3) In an emergency situation where consent of the patient cannot reasonably be
obtained before providing health care services, there is no requirement that a health
care provider obtain a previous consent.
Effective: July 1, 1976
History: Created 1976 Ky. Acts ch. 163, sec. 8, effective July 1, 1976.
Kentucky Revised Statutes 214.185
Diagnosis and treatment of disease, addictions, or other conditions of
(1) Any physician, upon consultation by a minor as a patient, with the consent of such
minor may make a diagnostic examination for venereal disease, pregnancy, or substance abuse disorder and may advise, prescribe for, and treat such minor
regarding venereal disease, alcohol and other drug abuse or addiction,
contraception, pregnancy, or childbirth, all without the consent of or notification to
the parent, parents, or guardian of such minor patient, or to any other person having
custody of such minor patient. Treatment under this section does not include
inducing of an abortion or performance of a sterilization operation. In any such
case, the physician shall incur no civil or criminal liability by reason of having made
such diagnostic examination or rendered such treatment, but such immunity shall
not apply to any negligent acts or omissions.
(2) Any physician may provide outpatient mental health counseling to any child age
sixteen (16) or older upon request of such child without the consent of a parent,
parents, or guardian of such child.
(3) Notwithstanding any other provision of the law, and without limiting cases in which
consent may be otherwise obtained or is not required, any emancipated minor or any
minor who has contracted a lawful marriage or borne a child may give consent to
the furnishing of hospital, medical, dental, or surgical care to his or her child or
himself or herself and such consent shall not be subject to disaffirmance because of
minority. The consent of the parent or parents of such married or emancipated
minor shall not be necessary in order to authorize such care. For the purpose of this
section only, a subsequent judgment of annulment of marriage or judgment of
divorce shall not deprive the minor of his adult status once obtained. The provider
of care may look only to the minor or spouse for payment for services under this
section unless other persons specifically agree to assume the cost.
(4) Medical, dental, and other health services may be rendered to minors of any age
without the consent of a parent or legal guardian when, in the professional’s
judgment, the risk to the minor’s life or health is of such a nature that treatment
should be given without delay and the requirement of consent would result in delay
or denial of treatment.
(5) The consent of a minor who represents that he may give effective consent for the
purpose of receiving medical, dental, or other health services but who may not in
fact do so, shall be deemed effective without the consent of the minor’s parent or
legal guardian, if the person rendering the service relied in good faith upon the
representations of the minor.
(6) The professional may inform the parent or legal guardian of the minor patient of any
treatment given or needed where, in the judgment of the professional, informing the
parent or guardian would benefit the health of the minor patient.
(7) Except as otherwise provided in this section, parents, the Cabinet for Health and
Family Services, or any other custodian or guardian of a minor shall not be
financially responsible for services rendered under this section unless they are
essential for the preservation of the health of the minor
.Effective: June 20, 2005
A Guide to reading In Re Mattie Brown
This is a 1985 case from the Supreme Court of Mississippi. It has an unusual fact pattern that demonstrates the tension that exists between competing goals—the personal freedom that we have to be left alone, and the interest that the state has in conducting fair trials with the best possible evidence.
The decision below starts with the opinion of the majority and is followed by the dissenting opinion of Justice Hawkins. To make the decision more readable I have edited the opinion. You will notice that I have highlighted some terms. These are terms that you may not be familiar with and for that reason the glossary below may be useful to you as you read the case. When you get to the highlighted term come back to the top of the page to find the meaning.
Proceeding ex parte In nearly all matters courts hear the arguments of the parties with counsel for each party present. This is an elemental part of due process. When possible the courts want to hear both sides of an argument before making a decision. There are however some circumstances where time is of the essence and the courts must act with the kind of alacrity that would preclude scheduling a hearing and giving everyone notice of a date and time to come to court. In these rare cases the court will allow a party to proceed exparte. This simply means without the presence of the other party. Courts don’t like to do it and when they do it is the orders issued are usually temporary and followed by a later hearing with all of the parties present. In this case the prosecutor sought an ex parte order because of the belief that failure to act quickly would result in the death of Mattie Brown.
Moved to vacate In this case the lawyer representing Mattie Brown went to the court that originally heard the matter ex parte and asked them to remove the order that they had made. This request to remove or delete a prior order is a move to vacate the prior order, in essence to set it aside.
Overruled and denied In this case the trial court, (the Court of Chancery), issued an order requiring Mattie Brown to have a transfusion. That court was asked to vacate the order they had already issued. This is in essence asking the trial court to reconsider its initial decison and reverse itself. As is usually the case the trial court did not vacate its own order. As a consequence an appeal was made seeking an order that would require the trial court to change its order. The appeal to the Mississippi Supreme Court was asked by Mattie Brown to overrule the trial court and prohibit an involuntary transfusion.
Pearson v. State 428 So.2d 1361 This is a citation to another decision of the court. Court’s and lawyers pleading their cases frequently cite prior decisions by the court or by other courts to show that they acting in a manner consistent with the prior case law. The American legal system is precedent based. This means that prior decisions are, to the extent possible, honored. There is a constant effort to by courts to reconcile their decisions with the prior decisions and a constant effort to distinguish the facts from one case from the facts in another case to demonstrate that a particular rule is the appropriate rule. In editing this case I have edited out most of the citations. They are useful to lawyers who are trying to understand the reasoning, but they have a tendency to make reading the cases more difficult for those that are unaccustomed to seeing them. I have left a few citations in that refer to particularly well known cases especially those United States Supreme Court cases that the Mississippi Supreme Court cited. For those with an undying curiosity the 428 SO.2d 1361 is secret lawyer code that allows you to find the case very quickly. In this case it means that the case known at Pearson v. State can be found in volume 428 of the second edition of the Southern States reporter at page 1361. The southern reporter is a set of books published by the West Law Publishing Company that includes written decisions from the courts of several southern states. The citation also indicates that the decision came out of Mississippi in 1984. West Publishing has split the United States into several regions for the purpose of reporting decisions. The entire set of regional reporters can be found in Western’s library, it includes several thousand volumes.
Battery is an intentional tort. Torts are those pesky things that if do them you can get sued. The tort of battery involves the non-consensual touching of another. If I punch you in the nose that is battery. It is also battery if a doctor performs surgery on someone who has not consented to that surgery. Notice that there are instances where the non-consensual touching of another is permissible—see Kentucky’s statutory exceptions above.
In Re: Mattie Brown a/k/a Delores Brown
Supreme Court of Mississippi
478 So. 2d 1033;
October 30, 1985
OPINION BY: ROBERTSON
Man has long sought to live according to his religious beliefs and to be let alone in the process. So living we yearn to be free of societal opprobrium and state interference. The lesson of history is that, because we are diverse, the existence of the former will lead to the latter, in consequence of which we have for all time vested each person with a legal shield adequate of design to thwart state impingement.
This case is about the State’s effort to keep alive until trial a wounded witness to two violent felonies. It is also about the efforts of that witness, who by religious faith is a Jehovah’s Witness to accommodate the State only if that may be done consistent with her sincere conviction that to accept into her body the blood of another permanently separates her from her God and subjects her to eternal damnation. Because those who founded our nation believed in the primacy of individual rights in such highly personal matters, and thus placed permanently within our law rules securing to one and all the rights to the free exercise of religion and to privacy, we hold for Jehovah’s Witness and against the State.
On August 25, 1985, Mattie Brown, age 47, was shot and seriously wounded. Brown, a resident of Edwards, Mississippi, was immediately taken to the Hinds General Hospital in Jackson. Her condition required prompt surgery and the physician in charge recommended blood transfusions to support Brown during the surgery. Brown indicated that she wanted to live; that she wanted the necessary surgery; only, that she refused the transfusions. Brown recites biblical verses said to proscribe receiving the blood of others.
Immediately after the shooting, Hinds County law enforcement authorities took into custody Brown’s daughter, twenty year old Andrea Ruby Brown, and charged her with aggravated assault upon her mother. Andrea is also charged in the rat poison murder of her father, Andrew Lee Brown.
Believing that Mattie Brown was the only person who was in a position to provide the State with eyewitness testimony in the two prosecutions against Andrea Ruby Brown, the Hinds County District Attorney’s swung into action. That office applied to the Chancery Court of Hinds County, Mississippi for an order requiring that, incident to the needed surgery, Brown receive blood transfusions despite her religious beliefs. The District Attorney’s purpose was to avoid the risk that a critical witness would die before trial. Proceeding ex parte on August 26, 1985, the Chancery Court entered the order as requested. On August 29, 1985, Brown appeared through counsel and moved to vacate the order, asserting her religious beliefs and her rights to the free exercise thereof and to privacy. The Chancery Court overruled and denied the motion to vacate.
The contemplated surgery took place and Mattie Brown did receive blood transfusions. Notwithstanding, Brown insisted that the issue was not moot and brought an emergency appeal to this Court. The matter received further urgency when on September 11, 1985, this Court was advised that Brown would require additional surgery in connection with which her surgeon had again recommended blood transfusions, to which, as before, Brown objects.
After receiving briefs of counsel for Mattie Brown and the State regarding the matter, this Court heard oral argument on September 12, 1985. That afternoon the Court announced that the orders of the Chancery Court of August 26 and 29 would be vacated and directed that Mattie Brown not be required to submit to or receive a transfusion of blood against her will, notwithstanding any interest the State of Mississippi may claim in the matter. We further announced that this opinion would issue in due course articulating the basis and contours of that decision.
The posture of the matter on September 12, 1985, was this: Mattie Brown, age 47, was an alert and competent adult. She was not pregnant and, insofar as the record reflects, she had no dependent children. Her attending physician was of the opinion that she was in need of prompt surgery. Brown insisted that she wanted this surgery. Notwithstanding that she had received one court ordered whole blood transfusion, Brown objected to another. Brown’s attending physician was of the opinion that her chances for recovery from the surgery without the availability of blood were “fair”. Obviously, the chances of recovery would have been markedly increased with blood available. 1 Knowing these things, Brown made a determination that she would claim her rights to the free exercise of religion and to privacy and asked this Court to prohibit any further transfusions. Our Order of September 12, 1985, granted this relief.
1 We have been advised informally that the surgery has in fact been performed on Mattie Brown, without blood transfusions, and that the patient not only survived but is convalescing nicely.
Before considering the merits a point need be observed. We are presented Mattie Brown’s claim of two rights — a right to the free exercise of her religious beliefs and a right of privacy. If those rights be held to include the right, as a competent adult, to refuse a blood transfusion, the matter is at an end, unless the State can point to some competing right vested in it by some valid rule which is a part of our positive law. Rights are subject to compromise only when they collide with conflicting rights vested in others.
To be sure, a right may be entailed. The freedom afforded Mattie Brown to exercise her religion and otherwise be let alone, though fundamental, is not without limits. Those limits, however, must be found within the right and the rule creating it. Once the right has been defined and shaped by the contours of the rule — the First, Ninth and Fourteenth Amendments to the U.S. Constitution and Article 3, Sections 18 and 32 of the Mississippi Constitution of 1890 — it prevails against mere interests, public or private, no matter how compelling.
By definition rights give the individual zones of unchecked discretionary action that others, whether private citizens or governmental authorities, may not invade. They are entitlements of an individual he or she may claim at his or her election. They may be claimed no matter how inconvenient society or its members may deem it. See Pearson v. State, 428 So.2d 1361 (Miss. 1984). That they may be so claimed is what defines them as rights. Read v. State, 430 So.2d 832, 840 (Miss.1983). They are, if you will, the individual’s protection against the tyranny of the majority and against the power of the state. They are what gives meaning to that article of American faith: that each human being is unique, that by virtue of his humanity he possesses an unalienable and undeniable dignity and worth that he is entitled to the maximum basic personal liberty consistent with like liberty for each other.
We give these theories reality when we enforce secured rights at times that society finds it most inconvenient, when compelling reasons are presented why in the absence of the right the individual and her (to others) puny claim ought be shunted aside. Few such occasions arise, perhaps because it is known in this state that we do not sacrifice rights to mere interests. See Read v. State, 430 So.2d at 840; Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950); Fisher v. State, 145 Miss. 116, 134, 110 So. 361, 365 (1926).
Claimed here are two rights said to have been vested in each person within this state: the right of free exercise of one’s religious beliefs and the right to privacy. We will consider first Brown’s claim that her right of free exercise of her religious beliefs includes the right to refuse a blood transfusion.
The First Amendment to the Constitution of the United States prohibits the federal sovereign’s interference with the free exercise of religion. That prohibition has been extended to the State of Mississippi. See Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 2487, 86 L. Ed. 2d 29, 39 (1985); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940).
The Mississippi Constitution of 1890, in Article 3, § 18, provides that
the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred; provided only that the rights hereby secured shall not be construed to justify acts . . . dangerous to the peace and safety of the state. . . .
The right of free exercise of religion protects more than mere beliefs, more even than speech or public profession. 2 Religiously grounded actions or conduct are often beyond the authority of the state to control. Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S. Ct. 1526, 32 L. Ed. 2d 15, 27-28 (1972); Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965, 970 (1963); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1942). Where the religiously grounded “action”, is a refusal to act rather than affirmative, overt conduct, the State’s authority to interfere is virtually non-existent except only in the instance of the grave and immediate public danger. Refusal of state mandated vaccination necessitated to prevent widespread danger to the public health is not within the right to free exercise. Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944); 3 Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1904); Brown v. State, 378 So.2d 218, 223 (Miss.1979). On the other hand, interests of such magnitude as a state’s “interest in universal compulsory formal secondary education to age 16” are without the right and have been held insufficient to generate entailments of one’s right to the free exercise of religion. Wisconsin v. Yoder, 406 U.S. at 219.
2 The exercise of religious beliefs has been regarded as a form of expression protected by the free speech guarantee of the First Amendment. Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981).
3 Cases such as Prince may also rest on the principle explained below that the rights here at stake are personal rights exercisable only by competent adults. The persons to be vaccinated were children. See pages 18, 20-21, infra.
This is not the first time Jehovah’s Witnesses have been confronted with state-sponsored insensitivity to their practice of the articles of their faith. Due in no small part to their pestersome practices, the Jehovah’s Witnesses have clogged the dockets of this nation’s courts for half a century. See cases as far back as Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938); Schneider v. Town of Irvington, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939). Notwithstanding a significant fumble at the beginning, see Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375, (1940), 4 the judiciary of this land generally has responded responsibly, to its eternal credit. In the midst of the nationalistic fervor of World War II, the Supreme Court recognized the right of Jehovah’s Witnesses not to be compelled to salute our nation’s flag, as they regarded it a graven image, worship of which is prohibited. West Virginia State Board of Education v. Barnette, 319 U.S. at 642. More than a generation later the Court thwarted on free exercise grounds Indiana’s efforts to deny unemployment compensation to a Jehovah’s Witness who, by reason of his religious beliefs, voluntarily quit his job with a military contractor. Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981).
4 The Gobitis experience is one we must not forget. Decided in 1940 Gobitis found no infringement of constitutional rights attendant upon a requirement that the children of Jehovah’s Witnesses attending public schools participate in the ceremony of saluting the national flag. While the judicial restraint exercised in Gobitis was arguably admirable, the aftermath was deeply disturbing.
Children of this faith [Jehovah’s Witnesses] have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecutions for causing delinquency.
Barnette, 319 U.S. at 630, 87 L. Ed. at 1633.
It was against this backdrop that in 1943 the Supreme Court forthrightly overruled Gobitis in Barnette, 319 U.S. at 642, 87 L. Ed. at 1640, and cautioned that we never again experiment with compromises of such fundamental rights.
Brown claims a right to reject a blood transfusion on grounds that such would contravene the basic teachings of the Jehovah’s Witnesses. The transfusion would, we are told, interfere with her free exercise of her religious faith.
Jehovah’s Witnesses make no objection to receiving medical care, including surgery. If we understand correctly their views, they take full advantage of modern medical technology, with the single exception of blood transfusions. They believe and accept as authoritative and binding upon them the admonition of Almighty God Jehovah found in the Holy Bible commanding Christians to “abstain from blood.” The foundation for this belief lies in a quotation from Acts of the Apostles, chapter 15, vs. 20:
Hence my decision is not to trouble those from the nations who are turning to God, but to write to them to abstain from things polluted by idols and from fornication and from what is strangled and from blood.”
See also Acts 15:28-29. From the Old Testament Jehovah’s Witnesses cite from Leviticus, 17th chapter, vs. 10:
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 amongst his people.
Jehovah’s Witnesses as a congregation insist that such exercise of their religious beliefs does no harm to society and that, in spite of the risks they run, rarely do they in fact lose their lives solely because of refusal of blood transfusions. No matter how ill-advised it may appear to others, this anti-blood injunction is accepted by Jehovah’s Witnesses everywhere. Brown subscribes to this belief and comes before this Court asserting a deeply felt religiously grounded right to live her life consistent with her and her congregation’s reading of the scriptures.
Without precedent in this state, the point has arisen not infrequently elsewhere. Other courts have recognized that a competent and intelligent adult Jehovah’s Witness may of right refuse a blood transfusion, notwithstanding any interest of the state or anyone else to the contrary. . . . .(the case) cited by the State . . . is distinguishable because the patient there was without capacity to make an intelligent judgment at the time. The cases we have found arguably to the contrary, . . . are, in a word, wrong.
In sum, there is a valid rule in our law that prohibits state interference with most instances of the free exercise of religion, particularly actions or conduct negative in nature. That rule is of constitutional dimensions — state 5 and federal. The right emanating therefrom includes a right to exercise one’s religious beliefs by adhering to the Jehovah’s Witnesses view that the scriptures preclude receiving the blood of others. That right is entailed only by compelling considerations of public safety and danger. Mattie Brown derives rights from that rule which she here claims. Because that which she claims is within the right, and no showing of great and imminent public danger has been shown, 6 the matter ends, for in this state we take seriously the right to the free exercise of religion.
5 Though we believe it compelled by a faithful application of First Amendment jurisprudence, our decision today is grounded independently in Miss. Const. art. 3, § 18 (1890).
6 The reasons why we hold there are present here no compelling considerations of public dangers are discussed below.
Each individual enjoys a right of privacy. Each of us has a right to the inviolability and integrity of our persons, a freedom to choose or a right of bodily self-determination, if you will. The right was labeled by Samuel B. Warren and the then young Louis D. Brandeis as “the right to be let alone”. Warren and Brandeis, The Right To Privacy, 4 Harv.L.Rev. 193, 195 (1890). Brandeis later referred to it as:
the most comprehensive of rights and the right most valued by civilized man.
Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572, 72 L. Ed. 944 (1928) (dissenting opinion).
Contemporaneous with the famous Warren and Brandeis formulation, the Supreme Court in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S. Ct. 1000, 35 L. Ed. 734 (1891), wrote that:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
141 U.S. at 251, 11 S. Ct. at 1001.
This right of inviolability of one’s person has been subsumed in the federal domain by a broader right of privacy held of constitutional stature. . . . This right of privacy includes “independence in making certain kinds of important decisions”. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 51 L. Ed. 2d 64, 73 (1977). Among these are decisions regarding whether and what foreign substances will be injected into one’s body.
A right to privacy has been recognized as a part of the common law of this state. . . . This right of privacy, whether perceived as emanating from the common law or natural law, is given constitutional status by Article 3, § 32 of the Mississippi Constitution of 1890.
Another manifestation of this right is found in the doctrine of informed consent recognized in the area of law and medicine. No physician or hospital may subject one to medical treatment without that person’s informed consent. . . . Violation of this rule constitutes a battery. . . . The informed consent rule rests upon the bedrock of this state’s respect for the individual’s right to be free of unwanted bodily intrusions no matter how well intentioned. Informed consent further suggest a corollary: the patient must be informed of the nature, means and likely consequences of the proposed treatment so that he may “knowingly” determine what he should do — one of his options being rejection. That we would hesitate hardly a moment before holding liable a physician or hospital which proceeded without the patient’s informed consent says much regarding the patient’s broad right to refuse treatment.
The existence in our law of this fundamental right to be let alone has been further recognized by our legislature’s enactment that mentally competent adults may of right require withdrawal of life-sustaining medical support mechanisms. Miss. Code Ann. §§ 41-41-101, et seq. (Supp.1984). From this rule, it follows on principle that one such as Mattie Brown may decline the life-sustaining support that a blood transfusion would offer.
Though in fact her religious beliefs are the reason for her rejection decision, Brown also claims her right of privacy. This right has no necessary connection with any organized religion nor any personal religious beliefs. It is secured to each person within the constitution — saint or sinner, Christian or Jew, agnostic or atheist. It may be claimed for motives noble or base.
In the context of the facts of this case, Mattie Brown’s right to be let alone confers upon her the right to refuse a blood transfusion because she simply does not want one, a right again entailed only in cases of great and imminent public danger. 7 Today many fear blood transfusions as a source of infection with other dread diseases. Though these fears likely are ill-founded, the State has no authority to interfere with one’s acting upon such a fear absent evidence of imminent public danger. The point, however, is that the right to privacy is so personal that its protection does not require the giving of a reason for its exercise. That one is a person, unique and individual, is enough.
7 Though we find this right well within the federally recognized right of privacy, this portion of our decision today is grounded independently in Miss.Const. art. 3, § 32 (1890) and in the common law of this state.
The State nevertheless argues that it has interests substantial enough to overcome Mattie Brown’s rights. Keeping in mind
that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion,
Yoder, 406 U.S. at 215, 32 L. Ed. 2d at 25, we turn to the State’s claims.
Fundamentally, the State asserts the primacy of the prosecution of Andrea Ruby Brown for the murder of Andrew Lee Brown and aggravated assault upon Mattie Brown. Without doubt these prosecutions should take place. The State, however, says this gives rise to a compelling state interest sufficient to override Mattie Brown’s rights to the free exercise and practice of her religious beliefs and her right to privacy.
Put another way, the State suggests that allowing Mattie Brown to enjoy her free exercise and privacy rights will likely result in a guilty murderer going free — whereupon, the State says, she will be free to kill and kill again. The predictions implicit in this argument are highly problematic. Moreover, the danger to society of one murderer escaping prosecution are qualitatively different — and lesser — than that of a small pox epidemic. See Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1904); Brown v. Stone, 378 So.2d 218, 223 (Miss.1979). However, legitimate and important the State’s interest may be in having available for testimony at trial an eyewitness, that interest is not within those compelling so as to entail Mattie Brown’s rights to free exercise of her religious beliefs and to privacy. The State has called to our attention no case where its reasoning has been accepted on comparable facts.
The rights with which we are here concerned are personal rights peculiar to the individual. They do not survive the individual’s death. They may not be invoked by anyone other than the individual in whom they are vested . . . and then only when that individual is a competent and alert adult . . . The State also advances