After Congress passed the Child Abuse Prevention and Treatment Act in 1974, the Department of Health, Education and Welfare required states receiving grants for treatment and prevention of child abuse to enact laws exempting parents who use spiritual healing from child abuse and neglect statutes. Those blanket exemptions -- which Swan says were passed largely as a result of lobbying by the Christian Science Church -- are now slowly being repealed, state by state.
The first effort to amend the Colorado law was undertaken in 1989 by Bill Owens, then a state senator from Aurora, who argued that the loophole should be closed in part because of tragic cases like that of Jessica Ann Lybarger. The five-week-old infant had died of pneumonia in 1982 in a house located across the street from a hospital; Jessica's father, Jon Lybarger, the minister of a church called Jesus Through Jon and Judy, was subsequently charged with felony child abuse. Lybarger went to trial three times for the crime. The first two trials ended in convictions that were subsequently overturned by the state Supreme Court, and the third ended in a mistrial. According to Larimer County District Attorney Stuart Van Meveren, the church of Jesus Through Jon and Judy had about fifteen members and gradually "disintegrated."
The original legislation crafted by Owens was good, Swan says, but the Christian Scientists lobbied so heavily that Owens "crumbled" and redrafted the bill. State senator Dottie Wham, a fellow Republican, says, "It was the Christian Scientists who came in very determined that their method of healing not be outlawed by the state."
The revised legislation, which was subsequently enacted into law, seems tailor-made for Christian Scientists. A "recognized method of religious healing" is defined as one in which fees for prayer treatment can be deducted from income taxes or reimbursed by insurance carriers -- Christian Scientists can do both -- or if the prayer sessions have a success rate that is equivalent to standard medical care. Troy Eid, chief counsel for Owens, says the governor accepted the language exempting the Christian Scientists because the entire bill was in jeopardy of being defeated. "Governor Owens wishes he had the votes in 1989 to completely close the exemption, and he would support an effort to do so again."
The revised statute was still better than what had been previously on the books because it essentially prevents 99 percent of people from raising the spiritual prayer defense in child abuse and neglect cases, Eid adds. But Rita Swan says the language has only made things more confusing. "The Colorado law," she says, "is written so that you can get an exemption from murder charges if the IRS allows bills for prayer to be deducted from your income taxes and insurance companies will reimburse you for the bills from prayers."
In 1993, there was a second effort to amend the child abuse and neglect statutes, but that legislation was also defeated as a result of heavy lobbying by religious groups. Mike Stern, the former Montrose County district attorney who prosecuted David and Barbara Sweet, says the bill would have given parents who treat their children by spiritual means "clear notice of what the boundaries are and what was allowable under Colorado law."
According to Wham, such legislation is extremely difficult to pass because it touches on several fundamental rights, including religious freedom and parental autonomy. "It's a terrible thing for lawmakers to sort out," she says. "But the day will come when the legislature will choose to repeal that exemption."
Swan is convinced that if the law is made clear enough, all parents will obey and child deaths will decrease. But members of the First Born Church say they answer to a higher law. "We believe in man's law 100 percent," says one, "except when it interferes with God's law."
"You know, God didn't say he was going to heal everybody. Not everybody is going to get healed. But there are medicines that don't heal, either," says Helen Berger, who lives in a large farmhouse outside Olathe that is surrounded by corn fields and bean fields.
Helen is the grandmother of Ishmael Berger Belebbas, the full-term infant who died at birth. Her face is a study in contrasts: uncanny blue eyes that make her look younger than her years and the gap-toothed smile of a rigorous adherent to the First Born tenets. Although she is sad about losing her grandson, her faith remains unshaken. "The best mommas lose their babies," she says. "They are portrayed as neglectful parents when really, they were awful good parents. It was just their lot in life."