Jefferson v. Griffin Spalding County Hospital Authority ( 1981 )


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  • *91Smith, Justice,

    concurring.

    1. “The free exercise of religion is, of course, one of our most precious freedoms ... The courts have, however, drawn a distinction between the free exercise of religious belief which is constitutionally protected against any infringement and religious practices that are inimical or detrimental to public health or welfare which are not (Reynolds v. United States, 98 U. S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U. S. 333, 10 S.Ct. 299, 33 L.Ed. 637).” In the Matter of Sampson, 317 NYS2d 641, 649 (1970). As stated in Cantwell v. Connecticut, 310 U. S. 296, 303-304 (60 SC 900, 84 LE 1213) (1940): “The [First] Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”

    Nevertheless, the power of the state to restrict conduct based on religious belief is by no means absolute. “[H]owever compelling, a purpose approximately attainable without burdening religion must be pursued along that path. But there are numerous situations in which no such less restrictive path exists.” Tribe, American Constitutional Law, § 14-10, pp. 849-850. “Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?” Reynolds v. United States, supra at 166.

    In the instant case, it appears that there is no less burdensome alternative for preserving the life of a fully developed fetus than requiring its mother to undergo surgery against her religious convictions. Such an intrusion by the state would be extraordinary, presenting some medical risk to both the mother and the fetus. However, the state’s compelling interest in preserving the life of this fetus is beyond dispute. See Roe v. Wade, supra; Code § 26-1202 et seq. Moreover, the medical evidence indicates that the risk to the fetus and the mother presented by a Caesarean section would be minimal, whereas, in the absence of surgery, the fetus would almost certainly die and the mother’s chance of survival would be no better than 50 percent. Under these circumstances, I must conclude that the trial court’s order is not violative of the First Amendment, notwithstanding that it may require the mother to submit to surgery against her religious beliefs. See Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, supra; see also In re Green, 448 Pa. 338 (292 A2d 387) (1972).

    2. We deal here with an apparent life and death emergency; questions relating to the jurisdiction of the lower court are not our primary concern.

    *92Code § 24A-301 sets forth the jurisdiction of the juvenile courts. It provides in pertinent part: “(a) The court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action: (1) Concerning any child... (C) Who is alleged to be deprived . . .” (Emphasis supplied.) Code § 24A-401 defines the term “child” as “any individual under the age of 17 years.” I believe the legislature intended that the juvenile courts exercise jurisdiction only where a child has seen the light of day.1 I am aware of no “child deprivation” proceeding wherein the “child” was unborn. See Patty v. Dept. of Human Resources, 154 Ga. App. 455 (269 SE2d 30) (1980).

    This is a case of first impression, and the trial court, in an attempt to cover all possible ground, rendered its judgment “both as a Juvenile Court and under the broad powers of the Superior Court of Butts County.” As the trial court’s action was a proper exercise of its equitable jurisdiction with respect to both the mother and the fetus (see Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, supra), and its decision on the merits a correct one, I fully concur in the denial of appellant’s motion for stay. “A judgment correct for any reason will be affirmed. [Cits.]” McLean v. McLean, 242 Ga. 71, 72 (247 SE2d 867) (1978).

    What is the “age” of a fetus? Does the instant case present a “juvenile matter”? Code § 102-102 (1) provides: “The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subect-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter.” See State of Ga. v. Brantley, 147 Ga. App. 569, 570 (249 SE2d 365) (1978); see also Keeler v. Superior Court of Amador County, 2 Cal3d 619 (87 Cal. Rptr. 481, 470 P2d 617) (1970).

Document Info

Docket Number: 37244

Judges: Hill

Filed Date: 2/3/1981

Precedential Status: Precedential

Modified Date: 11/7/2024