Abortion or Adoption is NOT an Equal Choice

It will be some time before the Supreme Court rules on the Dobbs v. Jackson Women’s Health Organization but there are quite a few perspectives turning up in the news already. Both Justice Amy Coney Barrett and Justice Brett Kavanaugh have gotten a lot of attention for their questions during the oral arguments. Forgive me the long blog but I am passionate about both the issue of legal abortion and curtailing the number of babies who end up adopted. And forgive me this too but I do believe there is an element among the Evangelicals of indoctrinating children who would not have been otherwise raised in the Christian religion into their belief system. Basically, conversion of the heathen masses.

Justice Barrett was perhaps the most clueless but as an adoptive mother her perspective should not surprise. NPR had a good feature on this – Why ‘Abortion Or Adoption’ Is Not An Equal Choice – and hence my blog title. Justice Barrett said, I have a question about the safe haven laws. NPR’s Ailsa Chang comments – Safe haven laws are essentially laws that allow someone to terminate parental rights to a child by relinquishing that child for adoption. (Blogger’s note – this is not entirely my understanding but I’ll leave it stand.)

Justice Barrett continued, “In all 50 states, you can terminate parental rights by relinquishing a child, and I think the shortest period might have been 48 hours if I’m remembering the data correctly.” Chang interjects, “Justice Barrett, who adopted two of her own seven children, wanted to know, isn’t adoption an alternative to abortion?” Barrett continued, “Both Roe and Casey emphasized the burdens of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden…”

Gretchen Sisson, a sociologist at the University of California at San Francisco, was also commenting on this program and said, “It’s very interesting that Justice Coney Barrett focuses specifically on the safe haven laws because this usage is extraordinarily rare. . . her broader argument about the termination of parental rights is still somewhat surprising because what we have found is that most of them do not end up choosing to place the infant for adoption.”

Another guest is “Bri” (not her actual name but used for privacy). Chang explains, Bri “had a baby and relinquished it for adoption seven years ago. It was a decision that still weighs on her to this day.” I think Bri’s perspective is accurate, “The suggestion that abortion isn’t needed because adoption is there makes it seem like this casual thing, like taking off a sweater and giving it to someone else and just forgetting about it or moving on. And that’s not what it is. It’s this huge event that you do to yourself and your child, and it changes you.” Chang adds, “For many people who don’t wish to have a child, it doesn’t come down to some binary choice between adoption or abortion. These are not equivalent options.” I agree.

The numbers are shocking. There are around 18,000 to 20,000 private domestic adoptions per year, and these are the adoptions in which a woman makes the decision during or immediately after her pregnancy to terminate her parental rights and place that child for adoption. The number of people who choose to get an abortion is about 900,000 per year. If you look back pre Roe v. Wade, there were more illegal abortions happening than there were adoptions happening. And this is when the adoption rate was at its peak and abortions were completely illegal. There were still more abortions than there were adoptions. Adoption is a very hard decision and it has a lot of adverse outcomes. We see a lot of grief, a lot of mourning, a lot of trauma for the women who go through relinquishments. And that has not really changed even as the context of adoption practice has changed over the years. There is also data that suggests that, in some cases, it is a medically riskier to carry a pregnancy full-term and deliver that baby than to have an abortion, in early stages of pregnancy.

The bottom line is – this isn’t a choice between having an abortion or giving the baby up for adoption, but actually the choice is whether to abort, terminate the pregnancy, or whether the mother has the resources to parent. Many single women faced with an unplanned pregnancy will still chose to parent their baby IF given the support, encouragement and resources to do so. Unfortunately, the selfish elements of our system of government and overall society do not choose to do so. Adoption is often a derailment of parenting plans due to a lack of financial resources, familial support and/or partner support. And when parenting feels precarious or untenable, adoption becomes the solution that they then turn to.

Slate has an article with a similar focus – While Hearing the Case that Could Overturn Roe, Amy Coney Barrett Suggests Adoption Could Obviate the Need for Abortion Anyway. They note that 3 of the Justices, Chief Justice John Roberts, Brett Kavanaugh and Amy Coney Barrett, while listening to arguments about Texas’ notorious SB 8 last month, demonstrated some hesitation about overturning Roe and further dismantling the inherent legitimacy of the highest court in the land. Also note that Chief Justice Roberts has two adopted children and Justice Clarence Thomas has an adopted child as well. Looks like the adoptive parents side of the argument is well represented !!

As part of Justice Barrett’s argument which I have already shared, she goes on to note, “There is without question an infringement on bodily autonomy, for which we have another context like vaccines. . . . so it seems to me that the choice would be between the ability to get an abortion at 23 weeks, or the state requiring the woman to go 15, 16 weeks more, and then terminate parental rights at the conclusion.” The lawyer for Jackson Women’s Health points out that adoption has existed since Roe was first decided and that pregnancy and birth in particular have dramatic effects on a woman’s health, also that the choice to give a child up for adoption is its own burden, not something to lightly suggest is easy. I agree.

One of the main arguments the state of Mississippi is making in this case is that pregnancy, and parenthood by extension, is no longer burdensome because of many economic and social developments that make pregnancy safer and parenting easier. (And I also agree that they are wrong.) “Numerous laws enacted since Roe—addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more—facilitate the ability of women to pursue both career success and a rich family life,” Mississippi Attorney General Lynn Fitch wrote. It is shocking to hear this claim from Fitch, whose state refuses to enact laws that would grant basic protections and security to new and expectant mothers. In fact, Mississippi remains a dangerous and difficult place to bear, birth, and raise a child for lower-income parents.

The Supreme Court can only embrace Fitch’s fantastical thinking by denying the brutal reality. At every stage of pregnancy, life is difficult for Mississippians who are not wealthy. The state’s maternal mortality rate is substantially higher than the national average, and its infant mortality rate is the highest in the nation. And the racial disparities are staggering. Black mothers die at about three times the rate of white mothers. While Black infants only make up 43 percent of births, they are more than half of the premature births and nearly 60 percent of the infant deaths. Black infants also experience birth defects at four times the rate of white infants.

Be sure to click on the other link embedded (also in Slate) that takes you to an earlier article from September – Mississippi Claims Its Abortion Ban Will “Empower” Women – In reality, it could kill them by Jonathan Allen and Mark Joseph Stern.

As to Justice Kavanaugh, it appears he is opportunistic and has never been honest with the American people, especially during his confirmation hearings. Verdict has an article titled – Justice Kavanaugh’s Misdirection Plays in the Mississippi Abortion Case. Basically it comes down to his definition of “settled law” (as applied to Roe v Wade) and “precedent on precedent” (as applied to Casey). And each seems to have been intentionally misleading during his confirmation hearings.

Those statements seemed designed to reassure senators and the public that he would not vote to eliminate the abortion right. By “settled law,” Kavanaugh apparently meant only that the Supreme Court had not yet overruled Roe and Casey, leaving open the possibility that the Supreme Court could unsettle the law by doing so. As for “precedent on precedent,” the phrase perhaps sounded like a kind of extra-strength precedent, but all Kavanaugh really meant was that the Casey decision included a discussion about precedent (in addition to its discussion of abortion). It was thus a precedent about, or, if you will, on, precedent.

All the linked articles contain additional details and context. What seems clear, depending on how the Supreme Court rules, is that there may be MORE babies for hopeful prospective parents to adopt. The supply of humans for the profit of more than one entity involved in the business of adoption has been severely limited. When I was researching my dad’s adoption, which was related to The Salvation Army, they admitted to me they had to close most of their unwed mothers homes because the demand went down sharply with the legalization of abortion in the Roe v Wade decision.

21st Century Children and Families Act

Whether it gets through or not, it is a step in the right direction. New legislation authored by California Rep. Karen Bass (D), would drastically change that standard: Under the 21st Century Children and Families Act, states could not even attempt to permanently sever children from their parents until they’d been in foster care for two full years consecutively, barring extreme circumstances — and even then it would be up to the states, and no longer a federal mandate. The reason that this is important is that the 1997 Adoption and Safe Families Act (ASFA) requires states to terminate parental rights when a child has been in foster care for 15 of 22 consecutive months. Granted this is just a tiny step.

“This bill is an important first step in moving away from cookie-cutter timelines that have caused devastating harm to children and families for decades,” said Kathleen Creamer, managing attorney of the family advocacy unit for Community Legal Services in Philadelphia.

Existing exemptions would be maintained for certain “aggravated” circumstances, such as when parents have committed sexual abuse or have been involved with the death of another child. But the legislation would free parents from the federal timeline when their custody rights are threatened due to incarceration or immigration detention — or in cases where they are actively working with the court to overcome hurdles in their lives to successfully bring the family back together. Parents are not subjected to the federal timeline if their children are placed with relatives.

Under the bill, if a state so chooses, it could eliminate all timeline requirements, except in cases involving aggravated circumstances.

Bass announced her landmark legislation in a news release Thursday. “It’s time to update old child welfare laws,” she said. “More needs to be done to improve foster kids’ options for stability in their lives. Premature modification of parental rights too often leaves children in foster care with no legal family.”

The legislation is at the earliest possible stage, and far from guaranteed, with many elements that could lead to controversy, including strengthening the rights of prospective LGBTQ parents. The bill could also be challenged by representatives of the adoption industry, policy watchers said.

“With respect to the timelines, we’ll be looking at those proposed changes carefully and considering how they affect children and families involved in foster care, especially BIPOC children and families, given the systemic discrimination they face,” said Mary Boo, executive director of the North American Council on Adoptable Children.

Children removed from their homes following allegations of abuse or neglect remain in foster care while their parents address the issues that landed them there, issues typically arising from extreme poverty. Under family and dependency court oversight, local child welfare systems must mitigate the circumstances that led to the child’s removal into foster care, offering the parents therapy, anger management, parenting classes and drug treatment, as well as the time necessary to overcome situational crises such as homelessness or illness.

Charles Redding barbecues for his two children last Easter at the home of a relative in St. Paul, Minnesota.
The family is now in dependency court fighting to stay together.

But that time is often not enough. The pandemic has brought heightened scrutiny to the “cruelty” of federal timelines. Parents such as Charles Redding of Minnesota have fought to regain custody of their children when circumstances are stacked against them to no fault of their own. Redding, for instance, had emerged from jail with no computer to attend court-mandated hearings and online classes, and the local center where he needed to go for drug testing suspended services. Earlier this year, Redding’s two children sobbed through a virtual court appearance, imploring a Hennepin County juvenile court judge to give their dad more time to secure stable housing for them to live together.

David Kelly, a former official in the U.S. Children’s Bureau, called the bill introduced this week “a critical, long overdue step toward justice for families,” adding: “I hope it proves a galvanizing moment for realizing the family children need most is their own.”

Bass is a longstanding champion of children and parents caught up in the foster care system — families who are disproportionately Black and Native American. She is among those emphasizing that the bar for reunification is often too high, and the impact of permanent family separation too damaging to continue the federal standards as they currently exist.

“The changes that I’m proposing today focus the foster care system on the child and the idea that children should be at the center of our efforts,” Bass stated.

Her legislation would require that before moving to terminate parental rights, states must describe the steps they took and services they provided to help keep a family together. It would also mandate data collection on the accessibility and availability of those services.

Shanta Trivedi, director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore said that while states are already required under law to provide services under a “reasonable efforts” standard, the proposed law will ensure that protocol is followed for every family.

“This puts teeth into the ‘reasonable efforts’ requirement that were previously absent,” Trivedi said.

The bill has another key element: It adds sexual orientation, gender identity and religion to federal nondiscrimination protections that previously only included race and ethnicity. Under the proposed law, states and agencies they contract with could not “deny to any person the opportunity to become an adoptive or a foster parent” based on those additional factors. The provision would directly challenge laws in nearly a dozen states that permit faith-based providers to exclude members of the LGBTQ community by following religious ideology in choosing which foster and adoptive parents, or even which youth in foster care, they will and will not serve.

The legislation proposed by Bass retains current legal requirements that adoptions cannot be delayed to match children with families of the same race, gender, culture and religion. But it instructs states to consider such factors if that is requested by the child or their birth parent.

When the Adoption and Safe Families Act became law decades ago, nearly a third of all foster children had been in the system for at least three years. The timeline was designed to push those cases in the direction of adoptions or guardianships so that children didn’t languish with uncertain futures.

Since then, adoptions from foster care have more than doubled — from 30,000 in 1998 to 66,000 in 2019. Over the past decade, federal statistics show that the number of children awaiting adoption has also increased, by more than 20%.

The attempt to rewrite ASFA comes at a time when some are pushing for its outright repeal, including Jerry Milner, the Trump-era head of the U.S. Children’s Bureau. Along with Kelly, his former deputy, Milner now leads a consulting group helping state and local systems interested in significant reforms of their child welfare systems, including the strengthening of family bonds so children can avoid permanent family separation.

Critics of the current timeline that pushes for termination of parental rights after 15 months describe it as arbitrary and unjust to the families who mostly come from communities of color where daily life and the weight of historic and systemic injustice can bear down on home life. Advocates for parents say the federal timeline also penalizes people in recovery for substance abuse or seeking treatment for mental health challenges — complex healing that can take time and involve relapse and setbacks.

In a February 2021 op-ed, Creamer and Chris Gottlieb, co-director of the NYU School of Law Family Defense Clinic, described the social context around the original law: “Passed in the wake of the now-debunked ‘crack baby’ scare, and at the same time as nefarious federal laws on crime and welfare, it reflected the racial and class biases that were ascendant at the time and that to this day continue to inflict harm on children, youth and families.”

Under the proposed legislation, a 24-month timeline was selected to align with the Family First Prevention Services Act, a 2018 law that overhauled the federal child welfare system to decrease reliance on group homes and emphasize foster care prevention. But as it is currently worded in the Bass bill, states could choose not to abide by the two-year timeline — the legislation as written uses the word “may” — not “shall” — while continuing to receive federal funds for the children who remain in foster care.

“We are hopeful that this is just the beginning of making sure that states have the flexibility they need to embrace and uphold family integrity,” said Shereen White, director of policy and advocacy for the national nonprofit Children’s Rights.

Child welfare policy consultant Maureen Flatley, who helped craft both the original Adoption and Safe Families Act and Bass’ new bill, said the additional protections for parents would not only help more children reunify with their families, it could reduce the number of young adults who leave foster care alone and disconnected from stable housing, income or a support system.

Flatley said while the timelines can succeed at creating a greater sense of urgency around permanency for foster youth, roughly 22,000 youth still age out of foster care each year with no legal family ties. Meanwhile, many of their parents may simply have needed more time to complete court-ordered service plans.

“By maintaining those family connections and those relationships, we may be able to mitigate and limit the number of kids who are aging out alone,” Flatley said.

Under the 1997 Adoption and Safe Families Act, states have received financial incentives to push foster children along the adoption path, despite critics’ objections. Bass’s bill does not address adoption incentives, instead taking aim at timelines that lead to the termination of parental rights — a critical first step for children to be adopted.

Still, even staunch detractors of the existing law applauded Bass’s attempt to update it through a social justice lens.

“I don’t know what the chances are for passage, but the fact that we can even have this discussion shows that the racial justice reckoning finally is reaching child welfare,” said Richard Wexler, an outspoken foster care critic and executive director of the National Coalition for Child Protection Reform. “If it passes, it will improve the lives of, ultimately, millions of children.”

Thanks to The Imprint for this blog.