Analysis of the JCS “Big News” Article
[Hopefully the formatting will be ok when I post this. I’ve had problems when trying to paste in a Word doc before.]
A word about the spirit in which I approach this:
As I have stated elsewhere I would be the first one on the bandwagon or charging into court if I found a viable legal theory to assert against the Blood Doctrine, which I believe to be corrupt and error and a potential danger to all Witnesses. As the bible says, “iron sharpens iron” and so the questions that I raise regarding the essay are meant to scrutinize in a positive way the appearance of this information and I hope to a beneficial end.
Although I find fault with the essay and ultimately conclude that it is of minimal value, this is, after all only my opinion. One of the greatest distinctions between the culture of Jehovah’s Witnesses and most cultures outside of the Organization, including the quasi-cultures of discussion boards on the Internet such as this one, is the tolerance of opposing and dissenting views.
Because one of the precepts that I try to live by is “balance” I try to consider all sides of an issue before reaching a position and I encourage others to do the same. It is as Walter Martin writes in The Kingdom of the Cults: “a man who will not stand for something is quite likely to fall for anything.”
SUMMARY:
The article “Jehovah’s Witnesses, Blood Transfusions, and the Tort of Misrepresentation” published in the Journal of Church and State is a well written but critically flawed essay which purports to establish that the tort of misrepresentation can be applied to Jehovah’s Witnesses on the basis of specific instances of misrepresentation (falsities, omissions and partial disclosures) contained in the Watchtower brochure How Can Blood Save Your Life?
The structure of the article is as follows:
Pgs: 1-7 Introduction
Pgs: 7-26 Analysis of purported misrepresentations contained in the brochure
Pgs: 26-37 Review of evolution of Watchtower blood beliefs and policy
Pgs: 37-38 Conclusion
The essay: is not a legal treatise; does not contain any meaningful legal analysis; does not contain any discussion or analysis of the primary case upon which it relies, Molko v. Holy Spirit Assn.; does not describe any cases which may be distinguished or similar to the Molko case which could be used in a challenge based upon the theory asserted; does not establish a novel legal theory; does not cite any cases which have followed the 1988 Molko case with respect to the misrepresentation claims as applied to religious groups [because there are none for reasons demonstrated later. Note: the Catholic molestation cases have mostly been evaluated under employment law theories not the tort of misrepresentation or under non-fraud related tort claims]; fails to address important legal considerations such as standing and statute of limitations; and finally and most importantly, the essay fails to address in any meaningful way the inevitable constitutional arguments that would be raised by opposing (Watchtower) counsel.
As such the essay cannot be relied upon to guide lawyers, lawmakers, judges, and plaintiffs in any significant way. Moreover, as an attorney, I find that the essay in asserting a questionable legal theory and couching such in terms of great confidence is ethically challenged in that attorneys are both duty bound to advise their clients to the best of their ability, and as officers of the court, are enjoined to present before the court only those legal arguments which they reasonably believe to have merit.
As an article of non-legal importance, the work is marginally useful as another example upon the pile of literature which has preceded it and that demonstrate the persistent appearance of secular errors in the publications of Jehovah’s Witnesses. Other persons have previously detailed the misquotations, extra-contextual misapplications, and omissions by the Society in such publications as: Life!-How Did It Get Here? By Evolution or Creation, Mankind’s Search for God, The Bible God’s Word or Man’s? Should You Believe in the Trinity?, et al., and this recent essay could be deemed as similar in nature and effect.
BACKGROUND ISSUES:
The Buildup:
I just wish to briefly touch upon the buildup created within the forum. People are certainly responsible for their own reactions to anything that is presented to them here but to be fair, when the originator of the message commands respect or is considered an authority there should be some precaution exercised so as not to create any unnecessary emotion or disappointment in the receivers.
Barbara Anderson is one of the rare individuals in this community that can command such respect because she has earned that right. Through her diligence and hard work, through her personal valor and willingness to suffer individual consequence she has set an example for all within and without the Organization who desire to erase falsehood and bring about positive change to Jehovah’s Witnesses.
It is precisely because of her stature that she must recognize that her voice carries with it the weight of responsibility and a duty to deal fairly and squarely with her audience. When she says “trust me” we trust her. In the pre-announcement to the announcement of the release of the article (the “THIS IS BIGGER THAN DATELINE…” post) Ms. Anderson clearly captured our attention. The convention of using ALL CAPS is still recognized as connoting emphasis or as “screaming” in this medium and thus a headline which shouts promises of a new development that is bigger than the other well-known recent scandals and controversies among Jehovah’s Witnesses is expected to deliver.
In my opinion, stating that a new article would soon be released concerning the blood doctrine would have preserved both the “surprise” and any agreements she may have had with the author or
Whatever, you may think of the import of the Essay, in my opinion, after the first 20 pages of speculation in her post, Ms. Anderson should have made some attempt to temper the hopes and fantasies of the forum participants in recognition of her own standing. Ms. Anderson and her husband deserve much kudos for all of their Watchtower related activities and for the sacrifices they have made. I personally have not read any “attacks” made upon Ms. Anderson, but it seems that some who have merely expressed their disappointment have been pointed at as doing just that. This is unfair to those who are honestly expressing that their trust was that the “Big News” would be just as Ms. Anderson promised. Ms. Anderson and others may sincerely believe that the appearance of this essay will in some fashion lead to change within the Organization and most of us long for something to help in this fight. Therefore it would be considerate to restrain our criticism, and in light of her service, allow that a little unfounded exuberance has never really harmed anyone. This does not mean that we can not or should not point out flaws in the announcement or pre-announcement, but we should probably also keep some perspective and realize that it was only one of thousands of posts to this discussion board and that the real discussion should be centered on the merits and usefulness or lack thereof of the article in question.
As someone who is working for change to the Organization I long for real “Big News” and important tools that can be used and I do not feel ashamed of expressing my disappointment, a disappointment which has changed to amusement as I have delved into the analysis of the essay.
(I can’t help but think of the scene from Monty Python and the Holy Grail of the “vorpal bunny” and how this essay is like the rabbit there. Whether the essay is as I say “just a little bunny” or turns out to be the vorpal bunny as others hope remains to be seen.)
Essay form:
Being unfamiliar with the Journal of Church and State, when I first heard that this was an “essay,” I thought that maybe this was the journal’s equivalent to a student Note in a law review. This turned out not to be the case as indeed the article is merely just an essay and does not have the quality of a Note which usually includes legal analysis and often seeks to advance novel legal theories or perspective or summarize research. Although the essay purports to advance a legal theory, it does nothing to actually do so. The form of the piece is important to the impact that it may make upon an audience. Because of it being an essay, it is unlikely to be received by many of the intended audiences with any great weight.
Baylor and JCS:
I have been informed that the law school, which publishes the JCS, is quite secular in comparison to the university. Unfortunately, it is unlikely that such a fact would be discerned by the average person, including Jehovah’s Witnesses, and perhaps even the legal community-two key audiences that its been stated are targets for the material. Since Baylor is well known to be a Christian-based university, this perception combined with the fact that the article is published in a journal entitled the “Journal of Church and State” and which is religiously focused, means of course that distribution of the article to Jehovah’s Witnesses will be severely handicapped for reasons we all know.
In the “announcement” of the release, Ms. Anderson stated: “The Journal of Church and State is read by those in the judiciary including the Supreme Court Justices of the . It is read by those in academia and professionals in 83 countries who are interested in the subject of church and state.”
I am at fault for not reading the last line very closely, to which I would like to plead fatigue and the lateness of the hour when I read this “Big News.” As it has been pointed out, of the handful of journals which are dedicated to religious issues, the JCS supposedly gets a good circulation. I have not actually seen anyone submit their own source for such a claim but I am willing to take the statement at face value, even though I suspect it comes from the JCS itself.
(If you read the “Second Opinion” postcript at the end of this analysis, I am hoping to find out if one of the leading experts in the field is familiar with the Journal among other things.)
However, in the big picture this journal is not prestigious, which is what I stated in my initial response to the Big News, and even though the website that I provided is not definitive, it provides a ranking however flawed it may be. If you would like to examine others or suggest other lists which demonstrate that among all law journals this one is considered prestigious please do so. If persons intend to use this point in their presentation of materials perhaps they will want to use the same qualifier with their audience as they have used to assert its prominence.
To suggest that the JCS is read by the Supreme Court Justices of the is simply folly and wishful thinking. Supreme Court justices do not have the time to browse through law journals and the implication that they would be interested in an “essay” is even more deceptive. The Justices rely heavily upon their clerks and staff to provide them with summaries of any legal materials necessary for cases that are immediately before it. They are not brushing up on their religious law just so they will be ready when the next case comes along. (Aside: for anyone who wants a peek at the workings of the Supreme Court I recommend the book “The Brethren.”)
Authorship:
(For purposes of this section I am assuming that the Kerry Ann Louderback-Wood of is the same person as the author of the essay in question.)
Contrary to the opinion of at least one forum participant, the credentials and bias of the author are important and germane because such affects how the material would be received by an audience.
In the pre-announcement to the announcement of the release of the article (the “THIS IS BIGGER THAN DATELINE…” post), Ms. Anderson stated that: “This important essay was written by attorney Kerry Louderback-Wood after her own mother, who was a Jehovah’s Witness, died in January 2004 obeying her religion’s blood ban.”
Articles in legal journals are generally written by either old masters (law professors) or young pups (students). Both groups have the time to engage in research and law journals want the prestige that comes with recognized authors and want to give students a great opportunity to make their mark and because its tradition. Active attorneys rarely write articles for formal peer-reviewed law journals due to time constraints unless they are an expert or specialist in an unusual field or were involved with an unusual or ground-breaking case or for some other special reason. (Normally, if an attorney does desire to publish something they will write for the legal trade journals that are read by their peers and which have less stringent requirements.)
Thus with the foregoing in mind, the impression that I was left with from the statement was that Ms. Louderback-Wood must be an expert with significant legal practice under her belt.
As we now know, Ms. Louderback-Wood is a recent law graduate, admitted to the bar on September 23, 2005, less than three months ago. (If the information obtained from the Internet can be relied upon it appears her area of “expertise” is taxation or business. I am not entirely confident in the Internet info, unless it is exaggeration, because tax law is both a recognized specialty by the Florida bar and like California and elsewhere persons are not supposed to use the specialty-designation unless certified; and also it is a very complicated subject – both of which require significant practice, but perhaps Ms. LW has pre-law school experience in that area.) In any case, with the lead time to publication, the peer-review and revision process and of course the initial research and writing of the piece, it is quite clear that the article was written while Ms. Louderback-Wood was still a student.
I won’t say that Ms. Anderson’s statement was a misrepresentation of the author’s credentials but it was misleading to me. The more accurate description would have been to say that the essay was written by a law student who is now an attorney, but perhaps that would have reduced the enthusiasm for the piece.
Regardless of these clarifications, these issues regarding the author’s credentials would be important in any situation, whether in submitting the information to the media or the legal community, to Witnesses, or to the general public. If the piece was in any way desired to be put into evidence or used in any way to help an expert form an opinion, these issues would be examined in depth by a competent attorney conducting a deposition or examining the witness at trial. You do not want to have your expert looking baffled trying to explain whether the basis for her opinion was written by an attorney or a law student or both.
Make what you will of the peer review process, the appearance in the JCS and references to unnamed “significant legal minds” who have supposedly blessed the essay will not rehabilitate the perception. The article must stand together with its author if one wishes Witnesses or others to listen to it.
To be sure, getting even an essay published is something to be proud of and Ms. Louderback-Wood should be commended for her efforts and I do commend her. I would also add that it is quite clear that she is a smart woman and on a personal level I really admire someone who undergoes the rigors of law school while balancing the needs and demands of a family. I wish nothing but much future success for Ms. L-W in all of her endeavours.
In considering the authorship of the essay, I was struck by this puzzlement which was expressed by Legolas in her question/post: “Is The Who Woman who wrote This Going To Sue The WT?”
Ms. L-W provides this info in the beginning of her essay:
Many of Ms. Louderback-Wood’s immediate family members are Jehovah’s Witnesses, and
she attended the religion’s meetings until reaching adulthood. Her mother faced the blood
issue twice. In the first instance, a doctor administered platelets to stop post-partum
hemorrhaging. Years later, doctors warned her mother that she was at great risk for heart
failure because of her severe anemia and low blood pressure, and recommended a blood
transfusion. Her mother refused, and she suffered a fatal heart attack within 48 hours of that
warning. The doctors, hospital, relatives, and visiting members from the local congregation
were not aware that the Society allowed followers to accept blood-derived hemoglobin, and,
thus, did not offer it. Instead, a relative ordered the hospital to administer an erythropoietin
injection, relying on the Society’s literature which stated it worked “very quickly” to produce
red blood cells. The doctors explained that this injection would not work as quickly as the
relative thought. These events were the impetus for this article.
What is striking here is that despite this tragedy being the genesis of her authorship, Ms. Louderback-Wood does not actually go into any specific details as to why these facts do not serve as a basis for a lawsuit of her own or use these facts as a “case study” which may have been more effective. Indeed, many here would agree and I would certainly assert that the best test of the legal theory that the author is proposing would be in the court of law. Indeed, rather than first write about it, how much more effective it would be to write about the great victory afterwards or even the lessons learned from defeat.
Indeed, (ok three indeeds is two too many) I believe I will touch upon some of the possibilities of why this course was not pursued below but I suggest that the major reasons for Ms. L-W not suing (either on her own or through counsel) is because:
1. the theory that the tort of misrepresentation can be used against Jehovah’s Witnesses in circumstances practically exact to her own doesn’t work in practice/reality.*
*The implication and assertion that Ms. L-W makes in her essay that health-care professionals are being dissuaded from the use of blood transfusions by the Society is belied by the facts of her mother’s own situation where it is clear that the doctors wanted to administer a transfusion. The health-care community, while both concerned for potential dangers of blood transfusions and are always desirous of establishing better treatment, are fully accepting of blood transfusions. The practical and legal questions that are raised within her mother’s own circumstance would bear acknowledgment and discussion by Ms. Louderback-Wood and would probably provide a better understanding of the complexities involved for legal professionals than the essay has done.
2. Or perhaps it is because the tort of misrepresentation is likely a “personal claim” and can only be brought by the person injured. Thus the family or heirs or other third parties do not have standing to sue. I actually don’t know without researching whether this is the case in Florida but certainly no purported “legal analysis” or essay that should be considered important and influential should omit such a basic discussion as whether the tort is personal or not. Especially, in THIS situation of refusing blood transfusions when the kinds of plaintiffs that we are really talking about are the relations of Witnesses who have died after refusing blood!
3. Similarly, another reason why Ms. L-W might not have brought a lawsuit of her own is because the Statute of Limitations has expired. For many torts this is one year from when the damage (or in this case the death) occurred and for fraud it is sometimes 2 to 3 years depending on the tort. Like the second point above, this is certainly an important consideration for anyone to know. Yet the essay never even gets into it.
As to these latter two points, the author may have assumed that any attorney seeking to consider this theory would already be aware of the standing issues and the statute of limitations in their jurisdiction, which would be some explanation, but if that is the case at a minimum it should have been stated in a footnote. Otherwise the failure to cover these essential issues, even in passing, is inexcusable and brings into question the quality of the peer-review of the article.
IMPACT & SUGGESTIONS FOR USE
Many on the Board have grossly and mistakenly described the essay as variously: a “tool,” “weapon,” “ammunition,” “an authoritative source,” which for “the first time” opens the door to litigation against the Society.
Please take the essay to any counsel of your choice. Despite the one post I saw which portrayed the salivating lawyer friend, if you let them dig into it a bit any initial interest is likely to fade under the realization of how difficult a case this would be to pursue. The reason for this is that not only is the misrepresentation tort a loser in this situation but any legal attack of the Society itself is going to be met with the full brunt and fiscal power of a cadre of Watchtower lawyers who will bury the plaintiff’s counsel with paperwork, pre-trial motions, discovery requests, etc. Even Erin Brockovich would feel like Dorothy in the Watchtower’s tornado. (Suing an individual Elder or two might be a different story. As the Society says, these are “on their own” when it comes to lawsuits for their own bad acts.)
So please try to shop this theory to a lawyer or interest them in such a case. After you have been disabused of this ridiculous notion then come back to the discussion.
I only wish to reiterate the following points.
Many lawyers have thought about potential bases for suing the Society. I personally have not only ran through all of the usual suspects but being intimately familiar with the culture, practices and procedures of Jehovah’s Witnesses, I have been in a unique position to have some insight as to what might work and what won’t work and the specific things that would fit with the legal elements involved. Frankly, I haven’t found anything good yet, and few lawyers have – just look at the dearth of cases in tort law or many other areas that have been successfully litigated against the Society thus far. (Of course, in situations such as sexual abuse, the law is clear and effective and advancing such cases while not easy are at least possible and don’t usually involve the entanglement of religion or belief considerations.) Despite the difficulties, I have some ideas that I am keeping for the future and after I have concluded or at least established my current endeavors I may explore further these avenues. Anyway, the point I am trying to make is that I have looked at Misrepresentation/Fraud, Defamation and all of the Intentional torts and Negligence also. In my estimation, the tort of misrepresentation does not work in the way that Ms. L-W is supposing that it does as I demonstrate in this analysis.
And no, AuldSoul, this is NOT a tried and true precedent in the situation presented or hoped for by the essay. Your statement to: “Legolas and others, the theory behind this has already been tested successfully. A case was won using this theory. It is simply a matter of applying a PROVEN successful theory in a different context.” – Shows that you completely misunderstand how the law works. You can’t take a cause of action for trespass to win an embezzlement case. Context is king. Context is everything. What it seems that you and others consistently fail to understand is that the law examines facts and circumstances in addition to the legal elements involved. Misrepresentation is on the books, it is a real cause of action, and yes the Molko case had some use for it, but neither that case nor any other case that I know of is a precedent for suing the Watchtower Bible and Tract Society/Jehovah’s Witnesses for misrepresentation. I know it is very hard to understand, and yes, it seems so simple on television, but please, please, please try to understand that there ARE reasons for things. There is a reason why you cannot sue the Witness who comes to your door and tells you to your face all kinds of fabrications of secular fact regarding evolution, blood, science, medicine, etc. while holding their Awake! in hand or even reading directly from the Blood Brochure. There is a reason that soldiers who have been maimed or families who have had their soldiers die in cannot sue George Bush for his confabulations or Dick Cheney for his deliberate falsehoods. And there is a reason that the Society cannot be sued for misquotes, or even deliberate lies in the Blood Brochure. (Actually there are many reasons for these things.) Below, I will discuss the Molko case in some detail. And just especially for you, AuldSoul, since you are puzzled how an action can be both deliberate and reckless, the answer is that a person may make a conscious and deliberate decision to act but that action may be deemed reckless by others or by accepted standards. For example, you can deliberately drop stones off a tall building but such conduct would be considered to be reckless. Or as with Misrepresentation, one can deliberately tell a lie that leads to harm and doing so would be deemed reckless because it showed a conscious disregard for the consequence of the lie. Both deliberateness and recklessness or their kin are elements of the tort. I am sorry but I cannot dumb it down any further than that.
For all of these reasons above and for all of the reasons below, I believe that the impact of the article itself upon the Organization/Jehovah’s Witnesses will be nil. Likewise the impact upon the legal community or anyone else for that matter will be negligible if not also nothing at all.
In the spirit of not being a total downer I do have the following suggestions for use of the essay.
[there was a joke here originally but I have deleted it because you deserve no comic relief from this serious topic and no one gets my crazy humor anyway]
Seriously though, despite the flaws addressed below, it may be useful to keep some of the points made by Ms. L-W in mind. JWs don’t really use the blood brochure in field service (despite it being on the website), and given that it is at least 16 years old, it is probably due for a revision or replacement. But in the event that you can either entice a Witness to discuss it or if one brings the topic up, it may be useful to point out some things by asking a question or making a statement such as: “I have always wondered about the quotes that are in the publications. Have you ever wanted to look up the source to see the context of the quote?” Or even, “hmm that statistic is probably out of date, why don’t we go to the Internet and see if we can’t find the latest figures and pencil it in?”
As for approaching the legal community you might try a conversation starter like: “I read this interesting article in the Journal of Church and State about how the tort of misrepresentation might apply to Jehovah’s Witnesses in a blood transfusion situation.” If they are interested you can follow up by sharing more info or by providing them with a copy to read on a yes, “return visit.” :-) In the more likely event that it will be “poo-pooed” you might respond by saying: “well if this tort of misrepresentation cannot be used, can you think of any other torts or bases on which the church could be sued because its member refused a blood donation?” I don’t think you will actually get much, and as a reminder on behalf of my colleagues, advice is what lawyers sell so don’t stretch the situation. If you can get them interested or thinking about it they may become quite helpful as most lawyers like to solve difficult problems.
And NOW the moment you have all been waiting for. The actual Analysis of the essay.
I am putting excerpts from the essay in bold (I hope) and emphasizing with red. My comments will be interspersed. I am giving page numbers of the document not the page numbers of the journal volume. Due to copyright considerations I am only excerpting the bits that I require to make my point. You are of course welcome to obtain a full copy and verify that I have not misquoted the essay. Also, note that this is my informal analysis not adhering to any particular rigid style or in conformity with academic standards.
Page 1, already commented on the footnote regarding the death of Ms. LW’s mother. First page is just an intro.
Page 2:
The Society’s main resource regarding its blood policy, “ How Can
Blood Save Your Life? ” (“pamphlet”), teaches both Witnesses and
interested persons about the religion’s blood prohibition.
Actually to state that this is the Society’s main resource regarding its blood policy is not only inaccurate, since it is not a “resource” in any form for the policy but rather a reflection of the policy, but it is also misleading. The brochure is a 16 year old publication that doesn’t get much play among Jehovah’s Witnesses today in the rank and file. Few if no Witnesses use the brochure in their bible studies and it is not required study literature in order to qualify for baptism. Most Witnesses would simply discuss the blood stance, citing Acts and other scriptures, and if more was required, today they are more likely to show the video: No Blood-Medicine Meets the Challenge rather than dig out this old brochure. But as I will point out below and signify the importance of the point, all literature of Jehovah’s Witnesses is part of the indoctrination process. Ms. L-W’s admission of this from the start of her essay is actually fatal to her entire argument.
This essay does not address the veracity of other Jehovah’s Witness writings and is
not meant to be an attack on the religion’s beliefs, including its belief
that mankind should abstain from blood. It is meant, however, to further
legal theory regarding the use of tort law as a narrowly tailored means
for affording harmed persons legal redress.
Unfortunately, the stated purpose of the essay is never met or realized. If the intention is to further legal theory then it should have been written to lawyers or the legal community in a way that would impress them and in a comprehensive manner. This would require the points I addressed previously in the “Summary” section about discussing in full the cases cites, additional precedent, the issues of standing and the statute of limitations and so on.
pages 2-5
the balance of page 2 through 5 is a simplistic summary of “THE PRIVATE RIGHT TO SUE WHEN A RELIGION MISREPRESENTS SECULAR FACTS ”
many different cases are cited but you have to carefully look at them to understand that none of them have facts that would be similar to a blood-transfusion situation. Many of the situations cited are not even fraud related such as the discussion regarding the Catholic sexual molestation cases which were employment law based.
It is clear that these cases are cited in order to suggest to the reader that the sacred walls around churches protecting them from lawsuits have been slowly eroding, especially lately. This is designed to further imply that Jehovah’s Witnesses are also going to undergo similar treatment.
The fact is that all churches are subject to the same vulnerabilities and protections. A case brought forth on legal grounds relating to child molestation is equally applicable to the Catholic Church, Jehovah’s Witnesses, Baptists, Moonies, and Aum Shinrikyo because religious considerations are either not implicated or all overcome for the same reasons.
The point is that it is both a mistake and misleading to suggest that cases which affected churches in certain situations would be equally valid as precedent or even as examples of what would occur to other churches (in this case Jehovah’s Witnesses) in an entirely different circumstance.
I wish to emphasize that not a single case cited in the paper possessed circumstances that were similar to the situation that would be met in suing the Society for misrepresentation in a refusal of blood transfusion case. Thus the decisions in those cases are quite irrelevant as precedent while the considerations and deliberations engaged in by most of the judges in those cases are what need to be examined and speculated about in application to facts of a blood transfusion refusal and tort of misrepresentation theory.
That’s a mouthful I know and hard to digest. So let me say the same thing another way for emphasis. In these cases which Ms. L-W cites, it is not what the judges decided in the end that is important it is what they thought about while reaching the decision that is important.
And more to the point as a criticism of the essay, it is this type of discussion, a discussion of what the judges thought about in those cases that needs to be presented in a paper, in order for the essay to be of any use to any attorney or legal mind.
From page 4:
Today, most courts are still unwilling to settle intra-church disputes, but some
are willing to allow tort suits for seriously injured victims of negligence
by church officials or where the church’s “fraud, breach of contract, and
statutory violation” is purely secular. 15 These courts invoke a neutrality
principle that opens the church to litigation [e.g. employment law]
despite the fact that the court will need to examine “religious documents
or practices.” 16 Likewise , in the context of the Witnesses’ blood policy,
the state’s compelling interest, preventing needless deaths, would pave
the way when the religion misrepresents secular facts on blood
abstinence in its recruiting and teaching material.
Yes, misrepresentation is on the books. It is meant to deal with fraud in breach of contract, economic and other purely secular situations. Far from being “likewise” the mixture of religious and secular issues that would be involved in challenge on blood is nothing like the successful instances cited by the author. Furthermore the Blood Brochure is not part of the indoctrination of bible students. Bible students are told from the beginning about Jehovah’s Witnesses position on blood and shown the bible passages purported to support the doctrine. The blood brochure is not useful for “recruiting” as the topic is as the author herself asserts (incorrectly) elsewhere, not broached until late in the indoctrination process. It is not required reading in order to get baptized. The author is setting up the reader for what she hopes the reader will believe to be analogous to the Molko case, especially by using the word “recruiting,” which is a term that is virtually non-existent in the Witness culture and publications.
Page 4:
One of the primary cases dealing with a religious organization’s
misrepresentations is Molko v. Holy Spirit Association for the
Unification of World Christianity (“Unification”). 17 The
Supreme Court held that ex-followers could sue the church for fraud in
its deceptive recruitment practices. The Unification church purposefully
concealed the group’s identity from new recruits by initially denying
they were “the Moonies.” 18
While there have been other cases that considered the tort of misrepresentation as one of the actions against a religious church or group in the context of embezzlement, fraudulent obtaining of property and the like, the author here cites Molko for a very important reason.
Molko is the only case that has addressed the tort of misrepresentation in the context of indoctrination without actually slipping into a fatal analysis of indoctrination. You see, as Justice Mosk, states in the Molko case:
“[10] Our initial inquiry, then, is whether plaintiffs' actions for fraud implicate religious belief or religiously motivated conduct. If the former, the actions are barred.”
And again:
“The challenge is to the Church's practice of misrepresenting or concealing its identity in order to bring unsuspecting outsiders into its highly structured environment. That practice is not itself belief -- it is conduct "subject to regulation for the protection of society." (Cantwell v. Connecticut, supra, 310 U.S. at p. 304 [84 L.Ed.2d at p. 1218].)”
And finally:
A s alleged by the plaintiffs, the Church's deceptions, although secular on the surface, are clearly "rooted in religious belief." (Wisconsin v. Yoder, supra, 406 U.S. at p. 215 [32 L.Ed.2d at p. 25].) While this does not mean such Church misrepresentations are immune from government regulation, it does mean any such regulation must survive constitutional scrutiny.
Indoctrination, that is instilling doctrine or teaching, when it is unaccompanied by force, is absolutely protected by the U.S. Constitution (and ’s and most state constitutions). This is why the court is concerned about what constitutes “religiously motivated conduct” and what constitutes belief or indoctrination.
The reason the plaintiffs had a win in this case is only because the court found that they had been lied to (there was misrepresentation) PRIOR TO the indoctrination and that a restriction (by allowing a lawsuit to go forward) upon such misrepresentation activity would survive constitutional scrutiny .
[The trial court and Court of Appeals and the dissenting Justice Anderson did not see it that way at all. They considered the whole process, including the lying called “heavenly deception” by the Moonies as part of the process of indoctrination and THUS not subject to judicial review.]
The case is actually not about the tort of misrepresentation at all – which is probably the prime reason why it has not been followed for this reason by any other cases. The tort of misrepresentation (actually it was a claim of “fraud”) was merely the leveraging tool to survive summary judgment. The case is actually about undue influence and it considered the novel theory of coercive persuasion and thought-control.
Now, if you have followed this so far, this is the most important point to remember. In the situation regarding any of the Society’s teachings on blood , whether the use of the brochure or other things, such would likely be considered part of the indoctrination , that is the instilling of the beliefs that the Society holds about blood. Try to keep this point in mind as you follow the rest of my analysis. Because since there is no force involved, any claims made upon any misrepresentations would be barred because it would entail an analysis by the court into the beliefs or indoctrination and would be unlikely to survive constitutional scrutiny.
Let me make a brief side-trip to illustrate what I am saying. If I came to you and said that my religion believed in a flat earth would you like to join and if you join that is one of our beliefs you have to support and this belief was detailed in all of our literature and we misquoted and misapplied every scientist and academic on the planet, well it would be pretty clear that such is misrepresentation. But it is equally clear that such is also religious belief. Because of this latter fact, a court must say its Hammertime “can’t touch this!”
Consider this one thought before we move on. What is the greatest and most perpetual misrepresentation of a secular fact by the Society?
It’s an easy question: 607 B.C.E.
Jehovah’s Witnesses are practically the only ones in the world that insist on the destruction of as having occurred in 607 B.C.E. Is there ample evidence of misrepresentation of scientific evidence, misquotations, historians, etc. in order to support the belief in the literature of Jehovah’s Witnesses? Of course there is.
And by the way, think about it, few Witnesses join or become Witnesses over the blood doctrine, but many join because they believe the extensions of the 607 B.C.E. belief, namely the Gentile Times and 1914 and the Last Days. Don’t these persons have a beef about being lied to? Can a court allow someone to sue or contest their membership on this basis of misrepresentation of a secular fact? No, because it is not only a secular misrepresentation it is actually a religious belief which is not subject to court review.
Getting back to Molko, the dissent recognized that “heavenly deception” was a religious belief but the majority held that it was action that was only religiously motivated conduct not belief. Refusing a blood transfusion is based upon religious belief. It is not merely religiously motivated conduct.
What Ms. L-W is trying to prove in her essay is that just as the lies and deception and coercive techniques occurred before the actual indoctrination in the Molko case, the reading of lies and deceptions in the Blood Brochure (or perhaps even elsewhere) comes before the actual indoctrination or full acceptance of the blood doctrine.
[I believe that the forgoing paragraph sums up the entire essay’s theory in a nutshell.]
This argument fails for at least two reasons: 1) it is patently obvious and in fact practically a trademark that the literature of Jehovah’s Witnesses itself is indoctrination material and part of the indoctrination process from the first knock on the door a fact admitted within the essay and 2) the Molko case was actually about the coercive situation and undue influence, not misrepresentation.
Page 5
The court stated that holding a religious organization liable for misrepresentations is the best solution, as it does not implicate either the church or its members’ right to associate or worship, or force them to perform acts contrary to their religious belief. 25
When I read the above excerpt from the Molko case in the essay and realized how the author was seeking to apply it to Jehovah’s Witnesses, I was simply blown away by the lack of perception. In the Molko case, the court (majority) held that requiring the Moonies to tell potential recruits who they really were from the outset would not violate their belief or their right to worship in the way they see fit. That is why it could hold them liable for lying in that stage of the process.
As far as the misrepresentation analysis, they found that the defendants had scienter – that is that they knew what they were saying was a lie.
Jehovah’s Witnesses believe that blood transfusions are unscriptural, unchristian and a violation of God’s most sacred principles and laws. It is one of the five pillars of the faith.
As for misrepresentation, proving scienter – that there are any instances where the defendants either the Society or individual Witnesses know that they are lying would be extremely difficult.
To require the Society to speak in ANY WAY balanced or to even give the slightest hint of pro-blood information by giving accurate facts, full quotations, etc. would go directly contrary to the belief that blood should not be accepted because the effect might suggest that blood transfusions are okay!!!
(Not too mention other constitutional issues such as freedom of speech which might be implicated in requiring full disclosure in the literature. The alternative of requiring the Society to refrain from any secular statements at all would be just as burdensome and unconstitutional.)
Finally, it would be malpractice to fail to inform a client that the Molko case is a California Supreme Court case. It is not a federal District Court or Court of Appeals case or much less a U.S. Supreme Court case. Therefore, any value that it may have as precedent is limited to the State of California. This fundamental fact is not even related by Ms. Louderback-Wood to the essay’s audience, not even as a footnote!!!
If you think that this is precedent where YOU live then you better live in the State of .
At most, the Molko case could be cited and hoped to be informative to a court in another jurisdiction but it is not binding in any way upon such courts.
I can’t even begin to find words to describe what the reason for such an omission might be and I simply want to be kind so I will leave it at informing the reader of this fact.
Page 5 cont.
Witnesses Strongly Rely on Watchtower Literature
The Society nicknames its religion “the Truth”….
An understatement to be sure, but what Ms. Louderback-Wood doesn’t seem to realize is that she is tanking any possible case by reinforcing the fact that the indoctrination, the instilling of doctrine, begins with and is ingrained with the literature. The literature is an inseparable amalgamation of belief and secularity. More importantly, the secularity reinforces and serves the belief. This fact means that it is impossible for a court to make any kind of inquiry into the literature of Jehovah’s Witnesses without crossing into the forbidden territory of exploring the beliefs or doctrines, something no court would be willing to do, not even to keep persons from killing themselves by refusing blood.
AT this point, although there has been no meaningful legal analysis, Ms. Louderback-Wood leaves off from the legal discussion entirely. From this point to the conclusion she will consistently cite what she believes to be misrepresentations but does not provide and indication has to how such would actually fit into a legal suit.
Pages 6-7
More stuff about how important the literature is and setting up the blood brochure again claiming that the Blood brochure is the “main blood indoctrination literature.”
Page 7-8
Society Misrepresents Historians’ Writings
The pamphlet quotes scientists and historians to bolster its position
that early Christians absolutely never ate blood. The pamphlet’s most
powerful argument is its quotation of Joseph Priestley’s “conclusion.”
The pamphlet states (without any reference):
Scientist Joseph Priestley concluded: ‘The prohibition to eat blood, given to Noah,
seems to be obligatory on all his posterity . . . If we interpret [the] blood prohibition of
the apostles by the practice of the primitive Christians, who can hardly be supposed not
to have rightly understood the nature and extent of it, we cannot but conclude, that it was
intended to be absolute and perpetual; for blood was not eaten by any Christians for many centuries.’ 38
The Society has grossly misrepresented Joseph Priestley’s writings.
Priestley, who lived in the eighteenth century, was both a scientist and a
religious writer.
…
It is a misrepresentation for the Society to quote Priestley as an adherent to an
absolute prohibition , when in fact he was not committed to either eating
or not eating blood and didn’t think the argument was important enough
to include in his main text.
----------
It was at this point in the paper when I realized that much of what the author complains that the Society has done would now be engaged in by the author herself. This first example provides a good illustration.
She begins by describing the paragraph that she cites as being the Society’s “most powerful argument” contained in the entire 31-page brochure. I struggle for words with how to describe this statement of Ms. Louderback-Wood. The paragraph in question is a tiny one at the bottom of page 5 and could hardly be construed through rational lenses either as the “pamphlet’s most powerful argument” or even as a major one.
More puzzling, the author wastes the journal’s valuable space in discussing Priestly at all simply because she has completely misunderstood the reason for the quotation in the first place.
The Society is not misrepresenting that Priestly himself was as Ms. Louderback-Wood states “an adherent to an absolute prohibition on blood. The Society is not actually saying anything about Priestley’s definitive position on the matter. What is being discussed is the Society’s belief that the “apostolic decree” (as it styles the events of Acts 15:1-21) is binding upon future generations, implicating of course a binding upon Witnesses today. Consider the citation in context:
*** hb 5 Blood-Vital for Life *** The apostolic decree was long understood as binding. Eusebius tells of a young woman near the end of the second century who, before dying under torture, made the point that Christians “are not allowed to eat the blood even of irrational animals.” She was not exercising a right to die. She wanted to live, but she would not compromise her principles. Do you not respect those who put principle above personal gain?
Scientist Joseph Priestley concluded: “The prohibition to eat blood, given to Noah, seems to be obligatory on all his posterity . . . If we interpret [the] prohibition of the apostles by the practice of the primitive Christians, who can hardly be supposed not to have rightly understood the nature and extent of it, we cannot but conclude, that it was intended to be absolute and perpetual; for blood was not eaten by any Christians for many centuries.”
AS seen in context, the Priestly quote is actually being offered as a statement which is in a string of argument for the Society’s belief in the continuance of the apostolic decree and it is not being offered as a statement about Priestly’s own personal views. What Ms. Louderback-Wood fails to appreciate is that it is inconsequential what Mr. Priestley actually believed.
Is it possible that some Witnesses might mistakenly conclude that Priestly did believe in prohibiting the eating of blood? Sure. But given that Priestly himself seems undecided on the issue, that some Witnesses might conclude that he supported not eating blood is not unreasonable. Note the following quotation from Ms. L-W’s essay:
Priestly actually concluded his discussion by stating:
Though in discussing this subject, I have generally mentioned the arguments for the
prohibition of blood before those against it, and have replied to the latter more than to the
former, I would not have my reader conclude, that I am fully determined in my judgment
with respect to it . Let him weigh what has been advanced on both sides, and decide for
himself; not forgetting, that this question relates to the least of all positive precepts, and
that all positive or ceremonial precepts are of little importance compared to the smallest
moral duty. 40
Thus there is actually no misrepresentation of Priestly’s position on blood since he himself was ambivalent!
But again, such discussion is mooted by the fact that the Society is citing Priestly and others as an integral facet of indoctrination or teaching about its beliefs and for the purpose of reinforcing those beliefs as Ms. Louderback-Wood admits and not for the truth of the citations, much less the truth of the original writers’ positions.
Pages 9-10
Next comes a discussion of other similar references in the brochure including Tertullian. All of this discussion shows the same fatal flaw in that it fails to recognize that the Society is not offering any of this as secular truth, but rather as part of its indoctrination into religious faith. Again it is like the flat-earth belief, it can be a complete lie but since it is a religious belief it is untouchable from court scrutiny.
Page 10 Bottom
Society Amplifies Medical Risks of Accepting a Blood Transfusion
Next, the pamphlet assesses the modern-day disease risks of
accepting a blood transfusion, attempting to convince the reader that the
medical risks militate against accepting blood. As evidence that blood
transfusions are hazardous, the Society cites a 1960 study showing that
there is 1 death for every 13,000 bottles . 49
Again Ms. Louderback-Wood is guilty of what she has accused the Society of doing, misrepresentation. The Society does not cite “a 1960 study” as evidence “that blood transfusions are hazardous.”
Here is the actual quotation in context:
“Blood has always enjoyed a ‘magical’ quality,” notes Dr. Louise J. Keating. “For its first 46 years, the blood supply was perceived as being safer than it actually was by both physicians and the public.” (Cleveland Clinic Journal of Medicine, May 1989) What was the situation then, and what is it now?
Even 30 years ago , pathologists and blood-bank personnel were advised: “Blood is dynamite! It can do a great deal of good or a great deal of harm. The mortality from blood transfusion equals that from ether anesthesia or appendectomy. There is said to be approximately one death in 1,000 to 3,000 or possibly 5,000 transfusions. In the area there has been reported one death for every 13,000 bottles of blood transfused.”— State Journal of Medicine, January 15, 1960.
Have the dangers since been eliminated so that transfusions are now safe? Frankly, each year hundreds of thousands have adverse reactions to blood, and many die. In view of the preceding comments, what may come to your mind are blood-borne diseases. Before examining this aspect, consider some risks that are less well-known.
-----
It is so completely clear that the Society was drawing a comparison between “then and now.” The very paragraph cited by Ms. Louderback-Wood begins with the words “Even 30 years ago” obviously meaning that the problem of potential contamination of the blood supply was known many years ago. That is the point that the Society is making. The very facts that the paragraph is about the situation 30 years ago and the journal article cited is clearly labeled as being from 1960 most surely invalidates any claim by the author that the Society was trying to fool readers into thinking that today’s statistics were being given. If anything it is the assertion in the following paragraph after the one cited that raises an eyebrow or two, yet that paragraph was ignored by the author.
Page 11
This page contains more discussion of perceived misrepresentation. The author picks and chooses which quotations she discusses leaving some alone and trying to elaborate with others how the quotation is misleading.
Page 12
The Society’s quotation
of Dr. Spratt’s comment about “surgeons becoming bloodless surgeons”
is a classic example of how a literally accurate quotation can create a
false impression because of an equivocation, in this case what
constitutes “bloodless surgery.”
Just a minor criticism from a wordsmith, this is not equivocation which is literally equal voiced or speaking to both sides of an issue and thus not taking a real position. The kind of error the author really means is that of intentional ambiguity and allowing the reader to arrive at an assumption that is contrary to the facts – in this case the meaning of Dr. Spratt’s “bloodless surgeons” comment.
Pages 12 – 17
These pages take us through the Brochures’ references and assertions of the beliefs about the risks involved with receiving a blood transfusion.
The pages contain a number of criticisms regarding the Society’s failure to provide both sides of the story as we say which is all mooted since the Society is under no legal obligation to disclose to its members either counter-arguments or to set forth information which might undermine or contradict its religious beliefs.
Nevertheless a few comments can be made about these pages.
Although there is a theoretical possibility that recipients of blood
transfusions could contract Lyme disease, the fact is that at the time the
article was written, no one had been known to contract Lyme disease
from a blood transfusion. 68
The author admits that the Society is not entirely mistaken in identifying a potential problem with a blood transfusion and Lyme disease. Curiously, she seems to criticize the Society by suggesting that since no actual cases of contracting Lyme disease via a blood transfusion had occurred at the time of publication, but corrects herself in her footnote that even today the situation has not changed. Yet, she fails to admit that despite there apparently never being a single case of contracting Lyme disease via a blood transfusion, the concern my health care professionals is still present and persons who have had Lyme disease are perpetually excluded from being blood donors by federal guidelines.
As of the pamphlet’s 1990 publication date, the risk of diseases (not
death), except for Hepatitis C, was far more remote than the Society’s
earlier quoted death rate of 1 per 13,000 bottles . As previously
discussed, the Hepatitis C test was soon to be released, mitigating this
risk to one in 100,000 inside the U.S.86
Again, the author misrepresents the Society’s “then and now” comparison asserting in this new paragraph (on page 17 of her essay) that the 1960 citation was offered as proof of actual statistical incidence when in fact it was offered to show that as far back as 30 years (from the publication) there was a concern about the safety of the blood supply.
Whether readers were more likely to conclude in 1990 that the blood supply was safer or was more dangerous is completely speculative. What is certain is that no reader in 1990 would conclude that the statistics and incidence rates given in a 1960 study would be the same at the present. (Nor would any who read this paragraph today in 2005.)
Page 17
5. Conclusion of Medical Risks
The pamphlet began by stating that the 1960 death rates were 1 per
13,000 blood bottles and then further magnified the dangers of blood
transfusions by including studies of Chagas, Lyme disease, and various
strains of Hepatitis and AIDS. 87 A reader may thus conclude after
reading the medical risk section that today’s blood, given the addition of
new diseases, is far deadlier than 1 per 13,000 bottles. If the Society’s
argument is sound, today’s diseases would effectively turn blood into
medical poison.
For the third and fourth times, Ms. Louderback-Wood misrepresents the paragraph in question and fails to appreciate that the Society was not citing the New York State Journal of Medicine article as proof of what the statistics are today. Thus her conclusions about what a reader might “conclude” are all wrong and also merely speculative. Perhaps some readers may not be astute. Most readers I know would understand that statistics from a journal article of 45 years ago are probably not valid today. In any case, such findings would be irrelevant to a court since the issue is whether the Society has scienter and whether the statement can be deemed as entirely secular. I submit that the first is not provable and the second is intractable from the issue of indoctrination and religious belief.
The pamphlet presents an extremist view of the risk of blood
transfusions and presents its followers with a misleading, myopic
interpretation of the quoted medical literature.
Yes and so? While morally wrong, while academically flawed, to hold an extremist view some would say is the very characteristic of many religions. Jehovah’s Witnesses’ view of blood is not medically balanced or secularly objective, it is a religious belief pure and simple.
Pages 17-22
These pages: “ The Society Misrepresents Blood’s Necessity and Medical Alternatives to Blood Transfusions”
She begins the section with the following kudos for the Society:
Admittedly Jehovah’s Witnesses’ refusal of whole blood coupled with the real risk of disease
have helped yield great advances in “bloodless” medical programs which will benefit all humankind, though this area of medicine is only in its beginning stages.
But then adds:
Nevertheless, the Society tries to convince its followers that bloodless medical techniques will work for them, a viewpoint summed up in the pamphlet: “We hope that you never lose a great amount of blood. But if you did, it is very likely that skilled doctors could manage your case without using blood transfusions, which have so many risks.” 88
Again from the author’s own words, the Society’s intent is to convince or to persuade the reader into adopting its own religious belief. This is part of the indoctrination already, it is not “build-up” to the indoctrination or deliberate false statements that fool recruits into going along with them to a remote facility where they will be “brainwashed” in a high-pressure situation like in the Molko case.
The section then turns to an in depth discussion of hemoglobin count, probably because this was the problem which lead to the death of the author’s mother.
Here I wish to raise a rhetorical question. Are Jehovah’s Witnesses truly accepting of the blood doctrine on the basis of the medical information provided by the Society or on the basis of the religious’ interpretations (beliefs) asserted by the Society?
Pages 22-23
3. Jehovah’s Witness Parents have Legal Right to Dictate Child’s No-Blood Treatment
Courts are frequently called upon to order transfusions for children of Jehovah’s Witness parents . 12
The author begins this section with the recognition that there already is a legal avenue available for the State to protect both the interests of children and possibly the interests of adults in certain circumstances by ordering a blood transfusion over the religious objections of the patient or the parents of the patient.
Why this is a torpedo to the theory that a tort of misrepresentation could be used as a basis for a lawsuit is because in any government intrusion into even “religiously motivated conduct” there is among other things a “least restrictive alternative” analysis performed by the Court.
I come back to the Molko case relied upon by Ms. L-W:
“A government action that passes the balancing test must also meet the further requirements that (1) no action imposing a lesser burden on religion would satisfy the government's interest and (2) the action does not discriminate between religions, or between religion and nonreligion. (Braunfield v. Brown (1961) 366 U.S. 599, 607 [6 L.Ed.2d 563, 568-569, 81 S.Ct. 1144].)”
And:
“Our analysis cannot end here, however. [12] A government action burdening free exercise, even though justified by a compelling state interest, is impermissible if any action imposing a lesser burden on religion would satisfy that interest. (Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 707, 718 [67 L.Ed.2d 624, 634, 101 S.Ct. 1425]; Sherbert v. Verner, supra, 374 at p. 406 [10 L.Ed.2d at pp. 971-972]; Braunfield v. Brown, supra, 366 at p. 607 [6 L.Ed.2d at pp. 568-569].)”
Because ordering blood transfusions for Witnesses would be less of a burden then compelling the Society to discontinue misrepresenting secular facts in support of its belief regarding blood, there is no reason for a court to open up the avenue of a misrepresentation tort. (But note even compelling a blood transfusion must face constitutional scrutiny, both on religious grounds and on non-religious grounds and it will be and should be a rare exception.)
Page 24
This section focuses on the use of the Society’s “very quickly” to describe the efficacy of erythropoietin, a natural hormone that helps blood formation and which has been synthesized.
Ms. L-W says:
The pamphlet’s reader may conclude that “very quickly” as applied to a medical emergency
means a few minutes or hours, but no longer than a day or two. However, erythropoietin actually takes four or more weeks before enough red blood cells are produced to make a difference. 131
This is again a misrepresentation of what the brochure actually says:
“Physicians can also help their patients to form more red cells. How? By giving them iron-containing preparations (into muscles or veins), which can aid the body in making red cells three to four times faster than normal. Recently another help has become available. Your kidneys produce a hormone called erythropoietin (EPO), which stimulates bone marrow to form red cells. Now synthetic (recombinant) EPO is available. Doctors may give this to some anemic patients, thus helping them to form replacement red cells very quickly.” (pg. 13)
As can be seen, Ms. Louderback-Wood has mislead the reader of the essay in two ways. First she states that the Society is discussing “medical emergency” situations and she implies that the recommendation by the Society is for all persons.
In fact the brochure clearly says that “some anemic patients” may benefit from EPO. Anemia is not an acute condition (unless brought about my a sudden blood loss) but is more often a chronic condition as was the case of the author’s mother (from what I surmise). It is managed thus with long term care including nutrition, iron-injections or medication and in some cases the prescription of EPO or other red-blood cell production stimulants.
The basic point is that a Witness who would receive EPO, since not all patients are suitable to receive it, would be likely to receive the facts about EPO including its efficacy from their physician and so the Society’s description of “very quickly” is irrelevant.
There is no explanation for why Ms. Louderback-Wood would misread the brochure’s paragraph but it is a misrepresentation of it itself.
Pages 24-27
These pages discuss more supposed misrepresentations and problems with the brochure. Whether the essay’s points are valid or not is inconsequential since the legal issues already noted are still present.
6. Summary of Survival Rates and Medical Alternatives Misrepresentations
At this point, a salient question emerges: Should the tort of misrepresentation be allowed to the victims of blood policy and their families who have come to the conclusion that the Society misrepresented the historical and medical science in its indoctrination literature? A court could conclude that each misrepresented statement is relatively insignificant. However, when taken together, the misrepresentations serve to warp the follower’s mind regarding the
actual medical and historical perspective.
Here the author tries to finally explain the legal reasons why all of the foregoing “misrepresentations” might be important. Here she relies upon a cumulative argument and hopes that the court (overlooking of course all of the inherent problems I have already documented) in reviewing these misrepresentations will weigh them as a whole. If a court were to do that, they would also need to weigh all of the other literature related to blood as a whole. A court would also have to explore the time-frame involved, the access to counter-information that one may have and the actual receipt of such information.
To illustrate if you are going to buy a car, a court will examine all of the statements made by the seller to determine if the “situation” constitutes fraud. The circumstances of a high-pressure sell, the lack of inspection, etc. are all going to factors in your favour.
But if a seller tells you this is a great car (having scienter – knowing that it is not) AND you are allowed to take the car to your mechanic, and he tells you that it is messed up, it needs an oil change and major work or it may break down and explode at any time, and you go online and see that the whole model has been recalled for a dangerous condition and all of your friends tell you how crazy it is to buy this car, if you then go back and purchase the car, no court is going to give you a victory.
You accepted a belief, the seller’s (which in this case wasn’t even a religious one) in the face of all of the conflicting evidence and information. That’s your fault not the seller’s.
There is no difference in a misrepresentation situation regarding the blood doctrine. Witnesses have ample opportunity in situations which don’t pose any pressure upon them to access and receive accurate information about blood transfusions. If court were to examine the totality of the situation as Ms. Louderback-Wood suggests it will question why Witnesses did not seek out such information or listen to the counsel of their physicians. And that inquiry will inevitably go where the Molko court said that it could not go, into an exploration of the indoctrination, culture and climate of the religion of Jehovah’s Witnesses.
Page 25
(my favorite thing in the whole essay)
7. Blood Pamphlet’s Near Omission of Acceptance of Blood Products and Fractions
ONLY a law student would use a term as “Near Omission.” Actually I have never heard of it before so maybe Ms. Louderback-Wood should be credited for creating it.
What is it? The legal equivalent of “I almost forgot?”
Darn that Society, they almost forgot to mention that blood products and fractions are acceptable!
I can read this section’s heading a hundred times and not fail to laugh.
The pamphlet’s most puzzling aspect is its scant discussion of the Society’s allowing individual Witnesses a personal decision to accept blood components, a policy in place for many years prior to its printing.
The pamphlet’s “ Quality Alternatives to Transfusions ” section, which is located near the beginning and details medical alternatives, including non-blood expanders and heart-lung machines, is the seemingly logical place to discuss blood components. 136 Because the pamphlet includes such a section, a court could reason that the Society thereby has a duty to
disclose all or, at least, the key quality alternatives to treat blood loss.
What is logical to the author does not make the situation a misrepresentation. More importantly in the highlighted last sentence of the excerpt above, the author here states what seems to be the real argumentative underpinnings of her entire essay, beneath the legal claims. Unfortunately, what the author is hoping for a court to require is not like the self-identification required of the Moonies by the Molko court or what other courts require when they require that a seller to disclose all of the pertinent facts known. Both of these impositions would not require the persons to violate their religious beliefs. On the contrary, requiring the Jehovah’s Witnesses to speak positively or even objectively about blood transfusions, when they hold the belief that such are violations of God’s laws and principles, would challenge the very doctrine, something that no court would be willing to do absent some greater outweighing factor.
Yes some religious beliefs themselves have been struck down as unlawful, e.g. polygamy. But these are the extreme exception to the rule and Jehovah’s Witnesses blood doctrine is not likely to be included in that elite club.
Page 26
Furthermore, page 18 of the pamphlet, in reference to a German consent form, reconfirms that blood components are not acceptable: “As a . . .Jehovah’s Witness, I categorically refuse the use of foreign blood or blood components during my surgery.” 137
Here is another misrepresentation by the author. This is the original quotation in context of the brochure:
Witnesses will also sign hospital consent forms. One used at a hospital in , has space where the physician can describe the information he gave the patient about the treatment. Then, above the signatures of the physician and the patient, this form adds: “As a member of the religious body of Jehovah’s Witnesses, I categorically refuse the use of foreign blood or blood components during my surgery. I am aware that the planned and needed procedure thus has a higher risk due to bleeding complications. After receiving thorough explanation particularly about that, I request that the needed surgery be performed without using foreign blood or blood components.”—Herz Kreislauf, August 1987.
By failing to disclose in the essay that the excerpt is actually from a German media report from 1987, she misleading suggests to the reader that the present German blood card maintains the same posture and thus implies that the Blood Brochure is providing conflicting information to the Society’s present position on blood. Ms. Louderback-Wood well knows that today’s Blood Card (Advanced Medical Directive) does not use the “categorically reject” language but instead specifies which blood parts are being rejected.
The author next compounds her error by stating the following:
Thus, the pamphlet appears intentionally ambiguous, if not contradictory, as blood components are never mentioned in its medical alternatives section, banned altogether in its legal section, yet unexplicably allowed in one statement near the end.
The “legal section” of which she speaks, the section of the brochure entitled “You Have a Right to Choose,” does not contain any ban on blood components. Ms. Louderback-Wood is referring again to her misleading misquotation of the OLD form’s language by the German media outlet in its piece that appeared in 1987.
Pages 26-36
From here until the conclusion, the essay degenerates into an interesting but irrelevant (to the issue of whether the tort of misrepresentation can be an actionable claim) discussion of the evolution of Jehovah’s Witnesses blood doctrine.
All of this information has been covered by others in many other forums and articles. Ms. Louderback-Wood highlights the concern of whether the Society has adequately explained is policy regarding blood fractions and whether it has defined clearly which parts are allowed and which parts are forbidden. Such is certainly a valid criticism and the issue is important, but none of this discussion implicates misrepresentation, which again is a deliberate lie which when relied upon brings about harm to the one that could be expected and who is induced to believe it.
Ms. L-W believes that the failure to adequately explain the policy with regard to tolerated fractions is “more egregious” than any “misrepresentations” which she has addressed in the Blood Brochure and may actually rise to “fraud.”
I don’t agree. The Society has been sloppy, confusing, even schizophrenic in this area but not deliberately misleading.
Page 37 Conclusion
It’s a conclusion. She rehashes all of her arguments and points in the foregoing 27 pages.
-----------
My conclusion:
I don’t think I need to write much more as I believe I have covered the majority of my criticisms and outlined how the tort of misrepresentation cannot serve as a basis for a lawsuit against Jehovah’s Witnesses in (almost any) blood transfusion related situations – and certainly not upon reference to statements in the Society’s literature which are indoctrinating literature and part of the religious experience.
But I will add the following:
When I was reading this “legal paper” which states that its mission is to:
…further legal theory regarding the use of tort law as a narrowly tailored means for affording harmed persons legal redress.
It wasn’t until about page 27 when I realized that there would actually be no serious legal analysis coming.
In reality, the essay could be summed up thusly. It:
A. Says courts are now letting people sue churches
B. Tells of this cause of action, the tort of Misrepresentation, which although usually confined to economic settings, has in one case been used against statements made by persons in their religious activities.
C. Asserts that Jehovah’s Witnesses have made all kinds of misleading statements regarding blood, leading some to reject blood transfusions and be harmed.
D. and Concludes therefore it might be possible, in today’s climate, to successfully sue Jehovah’s Witnesses using the tort of Misrepresentation.
This is an essay for sure, but even so, to go from A to B to C to D without any kind of comprehensive analysis of the legal questions involved with bringing such a suit or proving each of these steps is in NO WAY useful to achieving the stated goal or to informing either the general public or the legal community.
The foregoing is only my opinion. Here is your grain of salt, and yours, and yours and yours….
-Eduardo Leaton Jr., Esq.
PS: Getting a Second Opinion
Although I am confident in my assessment of the merits of the essay, my ego is not so over-inflated that I don’t recognize my own limitations. So I wanted to go to the most authoritative expert that I could locate.
For that reason I successfully contacted Ford Greene. Mr. Greene was the lead counsel in the Molko case, has successfully sued the , sits on the board of FACTnet and is a recognized authority in the field of tort law and litigation against religious groups, especially fringe, cultic and new religious groups. If there is any expert, who an active litigator, that is more authoritative than Mr. Greene, I am not aware of him or her.
I further contacted Mr. Greene because, being a plaintiff’s counsel in these situations, if he has a bias or predisposition regarding a potential lawsuit against the Society is likely to be both pro-lawsuit and highly optimistic regarding novel approaches or the challenges involved.
So that you do not think that I have tried to poison the well I reproduce here my original email to Mr. Greene:
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My name is Eduardo Leaton Jr. I am currently in a discussion regarding the merits of a recently published essay in the Journal of Church and State, published by .
The article, which I have attached in the event that you care to look at it relies heavily on the Molko case which I understand to be your case.
The article's contention is that the tort of misrepresentation may be used, based upon a reading of Molko, to litigate against the Watchtower Bible and Tract Society (Jehovah's Witnesses).
If you have a moment, I would greatly appreciate it if you could answer the following two questions.
1. Why does it appear that the Molko case has not been followed with regard to misrepresentation claims?
2. Would you consider the Journal of Church and State, published by Baylor to be an authoritative journal in your field?
If you have a moment to browse the article and have any comments, I would greatly enjoy hearing them.
Thank you sincerely and keep up the good work.
-Eduardo Leaton Jr., Esq.
PS: I have grown to respect Margaret Singer through her writings. Did you work with her personally as a member of the board of FACTnet and do
you have any personal reflections about her? How would you sum up her contributions in the field?
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I have been in dialogue with Mr. Greene and he has agreed to provide me with his comments to the essay. When I receive these, with his permission, I will repost these to the forum.