delivered the opinion of the court:
This is an appeal from the probate division of the' circuit court of Cook County which entered an order appointing a conservator of the person of Mrs. Bernice Brooks, and allowed the conservator’s request to be authorized to consent, on behalf of Mrs. Brooks, to transfusions of whole blood to her. The transfusions were made, and appellants, Mrs. Brooks and her husband, now seek to have all orders in the conservatorship proceedings expunged, and the petition therein filed dismissed. Questions under both Federal and State constitutions confer jurisdiction on direct appeal. U.S. Const., 1st, 5th and 14th amendments; Ill. Const., art. VI, sec. 5; Supreme Court Rule 28 — 1.
On and sometime before May 7, 1964, Bernice Brooks was in the McNeal General Hospital, Chicago, suffering from a peptic ulcer. She was being attended by Dr. Gilbert Demange, and had informed him repeatedly during a two-year period prior thereto that her religious and medical convictions precluded her from receiving blood transfusions. Mrs. Brooks, her husband and twо adult children are all members of the religious sect commonly known as Jehovah’s Witnesses. Among the religious beliefs adhered to by members of this group is the principle that blood transfusions are a violation of the law. of God, and that transgressors will be punished by God. This organization’s publication, “Blood, Medicine and the Law of God”, which had been filed by Mrs. Brooks with her physician, states the principle: “The matter was not to be taken lightly. Any violation of the law on blood was a serious sin against God, and God himself would call the law violator to account. ‘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 among his people’. — Leviticus 17:10”. Also a part of the foundation for this belief is the admonition found in the book of the Acts of the Apostles, 15 :28-2p: “For it seemed good to the Holy Ghost, and to us, to lay upon you no greater burden than these necessary things; that ye abstain from mеats offered to idols, and from blood, and from things strangled, and from fornication; from which if ye keep yourselves, ye shall do well”. Various other Biblical texts are quoted as authority for the belief, including Genesis 9:3-4: “Every moving animal that is alive may serve as food for you. As in the case of green vegetation, I do give it all to you. Only flesh with its soul — its blood— you must not eat”. Premised upon the belief that “The blood is the soul” (Deuteronomy 12 ¡33) and that “We cannot drain from our body part of that blood, which represents our life, and still love God with our whole soul, because we have taken away part of ‘our soul — our blood — ’ and given it to someone else” (Blood, Medicine and the Law of God, p. 8), members of Jehovah’s Witnesses regard themselves commanded by God to neither give nor receive transfusions of blood.
Mrs. Brooks and her husband had signed a document releasing Dr. Demange and the hospital from all civil liability that might result from the failure to administer blood transfusions to Mrs. Brooks. The patient was assured that there would thereafter be no further effort to persuade her to accept blood.
Notwithstanding these assurances, however, Dr. Demange, together with several assistant State’s attorneys, and the attorney for the public guardian of Cook County, Illinois, appeared before the probate division of the circuit court with a petition by the public guardian requesting appointment of that officer as conservator of the person of Bernice Brooks and further requesting an order authorizing such conservator to consent to the administration of whole blood to the patient. No notice of this proceeding was given any member of the Brooks family. Thereafter, the conservátor of the person was appointed, consented to the administration of a blood transftision, it was accomplished and apparently successfully so, although appellants now argue that much distress resulted from transfusions due to a “circulatory overload”.
We are met at the outset with appellees’ contention that since the blood transfusions have been given, the conservator has been discharged, and the estate has been closed, this cause is now moot. As to this question, language in a previous decision of this court (People ex rel. Wallace v. Labrenz,
“Before we reach the merits, we meet the State’s contention that the case is now moot and should be dismissed because the blood transfusion has been administered, the guardian discharged and the proceeding dismissed. Because the function of courts is to decide contrоverted issues in adversary proceedings, moot cases which do not present ■live issues are not ordinarily entertained. ‘The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error’. People v. Redlich,
“But when the issue presented is of substantial public interest, a well-recognized exception exists to the gеneral rule that a case which has become moot will be dismissed upon appeal. (See cases collected in
“Applying these .criteria, we find that-the present case falls within that highly sensitive area in which governmental action comes into contact with the religious beliefs of individual citizens. * * * In situations like this one, public authorities must act promptly if their action is to be effective, and although the precise limits of authorized conduct cannot be fixed in advance, no greater uncertainty should exist than the nature of the problems makes inevitable. In addition, the very urgency which presses for prompt action by public officials makes it probable that any similar cаse arising in the future will likewise become moot by ordinary standards before it can be determined by this court. For these reasons the case should not be dismissed as moot.”
We accordingly proceed to a consideration of the issues.
It is argued by appellants that the absence of notice in any form to Mrs. Brooks or her husband, who were readily available at the hospital, constituted a denial of due process vitiating the entire proceedings; that insufficient proof was presented to establish the patient’s incompetency (the doctor testified Mrs. Brooks was “sеmi-disoriented” and not “fully capable” but also stated “I think she would consent to surgery. It is the fact this is a transfusion of blood she objects to”) ; and that acceptance of medical treatment previously refused because of religious and medical reasons (blood transfusions are not entirely free from hazard) cannot be judicially compelled under the circumstances here present.
While, under the particular circumstances here, some merit is to be found in all of these contentions, we believe we should predicate our decision upon the fundamental issue posed by these facts, i.e.: When approaching death has so weakened the mental and physical faculties of a theretofore competent adult without minor children that she may properly be said to be incompetent, may she be judicially compelled to accept treatment of a nature which will probably preserve her life, but which is forbidden by her religious convictions, and which she has previously steadfastly refused to accept, knowing death would result from such refusal? So far as we have been advised or are aware, there is no reported decision in which this question has been squarely presented and decided.
It is established that the commands of the First Amendment to the United States Constitution relating to religious freedom are embraced within the Fourteenth Amendment and by it extended to the States. (Cantwell v. Connecticut,
The motivating factors underlying the constitutional separation of church and State and the prohibitions against governmental interference in matters of religion emanated from the circumstances prevailing in many European countries during precolonial ages, and from the practices among the colonies themselves prior to federation. The cruel and oppressive measures adopted, and the punishments imposed to compel conformity of all religious beliefs to those held by the most numerous or powerful groups are tоo well known to require documentation. Even the colonial governments legislated in this area, or attempted to do so, taxing inhabitants against their will for the support of religion oy a particular sect, compelling attendance at worship meetings with various penalties including death provided for those who failed or refused to comply, and punishing those nonconformists whose opinions were considered heretical. The controversy culminated in the First Amendment’s guarantee to the individual of frеedom from governmental domination in his religious beliefs and practices, and the point at which interference therewith may be constitutionally permissible is well illustrated by the proceedings of the Virginia House of Delegates. That body, after a spirited debate, adopted a bill “for establishing religious freedom” drafted by Thomas Jefferson (1 Jeff. Works 45; 2 Howison, Hist. of Va. 298) the preamble of which stated (12 Hen. Stat. 84) “to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty” and “it is time enough for the rightful purposes of civil government for its officers to interfere' when principles break out into overt acts against peace and good order”. The line of demarcation between that which may and that which may not be proscribed as set forth iri the concluding portion of this quotation has been manifest in the philosophy of this nation and decisions of its courts during the intervening years. Reynolds v. United States,
Appellees argue that society has an overriding interest in protecting the lives of its citizens which justifies the action here taken. As supporting this conclusion they rely upon the compulsory vaccination cases (e.g. Jacobson v. Massachusetts,
These cases are not determinative of the instant issue, and some are, in fact, supportive of a conclusion contrary to that urged by appellees. We believe the compulsory vaccination cаses inapposite since society clearly can protect itself from the dangers of loathsome and contagious disease, a question with which we are not concerned; the polygamous marriage bans were upheld because the practice consisted of overt acts determined to be deleterious to public morals and welfare (no overt, immoral activity appears here) ; the Lawson and Harden “snake handling” prohibitions also involved affirmative action deemed detrimental to the public welfare; and Labrenz involved blood transfusions to a minor child; the Georgetown College case was an altogether unique proceeding in which a single Federal Court of Appeals judge entered an order allowing a blood transfusion to an adult member of Jehovah’s Witnesses. A doctor and hospital authorities had appeared originally before a Federal district judge and orally requested entry of an order permitting blood transfusions to be administered to a patient evidently in extremis. The request was denied. Later that same day, an “appeal” was taken to a single Court of Appeals judge, and the same order was requested of him. In reaching his determination, the judge \yent to the hospital and spoke with the patient and her husband. The husband said that while' his wife was obliged to “abstain from blood”, if the court ordered a transfusion, the matter would be out of his hands. The patient stated that the transfusion would be against her will, but she also intimated that the court could take the matter from hеr hands. The judge then entered the order, determining to “act on the side of life”.
In subsequently denying a petition for rehearing en banc, the opinions filed by other members of that court indicate their misgivings regarding the substantive and procedural aspects of the action taken. Contrary to appellee’s interpretation, we read the opinions as suggestingamajority of the court would have refused the order. However, irrespective of the merits of that case, it is readily distinguishable from the instant one. There, the person alleged to be in extremis was the mother of minor children. The State might well have an overriding interest in the welfare of the mother in that situation, for if she expires, the children might become wards of the State. Such reasoning is inapplicable here since all members of the Brooks family are adults.
Similarly, the holding of the New Jersey Supreme Court (Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson,
We believe Jefferson’s fundamental concept that civil officers may intervene only when religious “principles break out into overt acts against peace and good order” has consistently prevailed in varying forms sincе Reynolds v. United States and Davis v. Beason.
In Cantwell v. Connecticut,
In Prince v. Massachusetts,
In West Virginia State Board of Education v. Barnette,
In School District of Abington Township v. Schempp,
In addition to the factors apparent in the decisions quoted from, the concurring opinion of Mr. Justice Brennan .in the Schempp case poses another distinction when at page 1586 he states: “But we must not confuse the issue of governmental power to regulate or prohibit conduct motivated by religious beliefs with the quite different problem of governmental authority to compel behavior offensive to religious principles.”
We have quoted at some length from these decisions in order to demonstrate what we believe to be the controlling elements in controversies akin to that now before us. It seems to be" clearly established that the First Amendment of the United States Constitution as extended to the individual States by the Fourteenth Amendment to that constitution, protects the absolute right of every individual to freedom in his religious belief and the exercise thereof, subject only to the qualification that the exercise thereof may properly be limited by governmental action wherе such exercise endangers, clearly and presently, the public health, welfare or morals. Those cases which have sustained governmental action as against the challenge that it violated the religious guarantees of the First Amendment have found the proscribed practice to be immediately deleterious to some phase of public welfare, health or morality. The decisions which have held the conduct complained of immune from proscription involve no such public injury and no danger thereof.
Applying the constitutional guarantees and the interpretations thereof heretofore enunciated to the facts before us we find a competent adult who has steadfastly maintained her belief that acceptance of a blood transfusion is a violation of the law of God. Knowing full well the hazards involved, she has firmly opposed acceptance of such transfusions, notifying the doctor and hospital of her convictions and desires, and executing documents relеasing both the doctor and the hospital from any civil liability which might be thought to result from a failure on the part of either to administer such transfusions. No minor children are involved. No overt or affirmative act of appellants offers any clear and present danger to society — we have only a governmental agency compelling conduct offensive to appellant’s religious principles. Even though we may consider appellant’s beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith in the form of a conservatorship established in the waning hours of her life for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles, and previously refused by her with full knowledge of the probable consequences. In the final analysis, what has happened here involves a judicial attempt to decide what course of action is best for a particular individual, notwithstanding that individual’s contrary views based upon religious convictions. Such action cannot be constitutionally countenanced.
It is well stated in Barnette v. West Virginia State Board of Education,
And a portion of Judge Burger’s opinion (joined in by Judges Miller and Bastían) in the Georgetоwn College case (
While the action of the circuit court herein was unquestionably well-meaning, and justified in the absence of decisions to the contrary, we have no recourse but to hold that it has Interfered with basic constitutional rights.
Accordingly, the orders of the probate division of the circuit court of Cook County are reversed.
Orders reversed.