Reproductive Discrimination

Struck v Sec of Defense

This case straddles both the issues of abortion and adoption. Story courtesy of LINK>Teri Kanefield. You can read the entire essay at that link.

Susan Struck joined the Air Force at the age of 23 in 1967. The recruiter warned her that she would be discharged if she got pregnant. She was sent to Vietnam. When Struck learned she was pregnant, her commanding officer gave her a choice: Get an abortion or leave the Air Force. At that time, abortion was legal in the armed services. Struck refused an abortion on the grounds that she was Catholic — although a lapsed Catholic. She wanted to give her child up for adoption and remain in the Air Force.

According to Air Force regulations, when an officer became pregnant, a board of officers was convened to hear the case. On October 6, 1970, Struck appeared before the board and asked if she could use her accumulated leave to have the baby, arrange for the adoption, and then return. The board refused her request. A few weeks later, on October 26, the secretary of the Air Force reviewed the findings of the board and ordered Struck to be discharged effective October 28, 1970.

With the help of the ACLU in Washington state, Struck took her case to court. Colonel Max B. Bralliar, commanding officer of the Minot Air Force Base, testified that Struck “demonstrated excellent ability in the performance of the managerial aspects of the work units and an excellent knowledge and application of nursing care principles,” and that she was highly dedicated with a “professionally correct and mature attitude.”

Meanwhile, Struck returned home to have her baby and arrange for the adoption. She gave birth to a girl, who she called L.B., which stood for “Little Baby-san” or, if she was in a different sort of mood, “Little Bastard.” She selected the adoptive parents, Julie and Art, who agreed to Struck’s terms: the baby would be raised Catholic, and Struck would be allowed to visit. On December 10, 1970, the adoption was finalized. Julie and Art named the baby Tanya Marie.

On June 4, 1971, the district court ruled against her, so she appealed to the U.S. Court of Appeals for the Ninth Circuit. Five months later, the Ninth Circuit affirmed the district court’s order. She filed a petition for rehearing, but was again denied. One of the judges dissented for two reasons: first, men with temporary periods of disability were not discharged, and second, he found it irrational that only the natural mother, not the natural father, was declared unfit for service after the birth of a child. With the dissent, the ruling was 2-1 against Struck.

Susan Struck wanted to take her case to the Supreme Court. Because Ginsburg was then the director of the ACLU’s newly-formed Women’s Rights Project, Struck’s case found its way to Ginsburg’s desk. Ginsburg thought Struck’s case was the perfect case to challenge abortion laws as unequal under the Fourteenth Amendment. The gender distinction in the Air Force policy made absolutely no sense. Once the baby was adopted and Struck was legally no longer a mother, there was no reason to deem her unfit for service.

Moreover, Struck’s case made two vital points: A woman should decide whether or not she would have an abortion, and abortion laws naturally discriminate on the basis of sex or gender. As Ginsburg said, nobody is for abortion. What people are for or against is a woman’s right to choose. For Ginsburg, the issue wasn’t about privacy. It was about autonomy. It was about a woman’s right to control her own life and her own body. Moreover, the facts would make the case unlikely to trigger a backlash.

Ginsburg planned to ask for a narrow ruling that would make the public aware of the issue without turning the abortion question into a hot political mess. To Ginsburg’s regret, as she was working on Struck’s case, another case–the case of Jane Roe–made it to the Supreme Court first. The 1973 Supreme Court decision in Roe v. Wade extended the right to privacy to the right to have access to an abortion.

Ginsburg believed the Court’s ruling was too broad. The sweeping decision caused the abortion laws of forty-six states that restricted abortions to be instantly rendered unconstitutional, even the most liberal of them. Ginsburg feared the decision would turn the issue into a political one, mobilizing the pro-life movement.

Progress in Washington State

Washington House Bill 1747: “Keeping Families Together” would encourage guardianships over termination of parental rights when possible. Black and Brown families are especially vulnerable — in Washington, Indigenous children are 2.7 times more likely and Black children are 2.4 times more likely than white children to experience the termination of both parents’ rights. This bill would help to reduce racial bias and inequities in the child welfare system.

Jamerika Haynes-Lewis who wrote an op-ed, LINK>HB 1747 Offers a Pathway to Keeping Families Together, for the South Seattle Emerald a year ago in January 2022 write – I think of my own experience as a foster child in the system. My world completely changed at 5 when I stepped into my first foster home. Though I had relatives and other people that could have served as guardians, this option was not considered. Instead, adoption was the only choice. This event led me to moving from the Eastside of Tacoma to becoming one of few Black children in Poulsbo, Washington. Away from my family and community connections, I suffered immensely from racism and an identity crisis. And I had to experience this alone, on my own.

I am unable to determine the current status of HB 1747’s effort. I did also find Washington House Bill 1295 at The Imprint LINK>Hidden Foster Care, which would guarantee legal counsel for hundreds of parents ensnared in “hidden foster care” — informal placements arranged outside of court oversight. In a practice deployed to varying degrees nationwide, social workers with the state’s Department of Children, Youth, and Families offer parents the option of voluntarily handing over their children to friends or family. In exchange, parents can provide input on where they would like to have the children stay without the dictates of a formal foster care placement. Legislation introduced by Rep. Lillian Ortiz-Self (D) would provide public defenders for those parents, who currently face separation from their children through contracts with the child welfare agency known as “voluntary placement agreements.” Such arrangements have been criticized by social work scholars and child welfare advocates, who say they can be coercive and strip parents of their due process rights.

“When you look at representation for such a critical decision in your life — whether or not to place your children in the care of the state — we just want to make sure that parents fully understand what they’re stepping into and what their options are,” Rep. Ortiz-Self said in an interview last week.

Optimistically, I believe that activists will continue making progress and will endeavor to remain informed as well as sharing what I learn here.

Adoption, Foster Care or Guardianship

Came across some thoughts. Just passing them along.

To the thought that adoption equals indentured servitude, one adoptee said – It started as permanent indentured servitude and nothing has changed except the marketing. In answer to that, someone else said – Until the law changes, hopeful adopters can choose guardianship or (not quite as good) choose NOT to amend the birth certificate per this LINK>google doc on State Laws.

The perspective from an adoptive parent, who adopted from foster care, and who is also the sister of an adoptee – The problem with guardianship is it varies so much on what it provides and how it functions. Part of me wonders if that is by design – make it so onerous that it’s the less desirable option.

Washington state recently passed a law that forbids children to be removed from a placement – if that placement is willing to provide LINK>minor guardianship but not adoption. This was specifically done with kinship in mind – apparently children used to be removed from willing kin placements to be put up for adoption, if a grandmother didn’t want to make her grandchild, her child, on paper.

Under a guardianship, the youth loses the benefits they would keep if they had been adopted or remained in foster care, including medical benefits. Guardians can apply for cash support but it is SUCH a complex process and many people don’t qualify. Her perspective is that it makes guardianship only possible for a specific socioeconomic group – and less possible for kin. Like with adoption, a teen must consent. The system leaves many teens frightened that guardianship means no more stability than foster care – with less oversight.

This adoptive parent would love to see a streamlined guardianship process that is a federal/legal mechanism. One that conveys the same parental rights and responsibilities towards minors that adoption does, while simultaneously banning any birth certificate amendments, legal name changes and still preserves legal ties to all genetic family members.

From the daughter of an orphan and an anti-adoption activist – someone saying that “in guardianship the youth lose benefits that they would keep in foster care” – that is the whole point of guardianship and adoption – to transfer financial responsibility from the state to the guardian or adopter! The adopter or guardian puts the child on their medical plan, feeds them, clothes them etc. The government does provide adoption incentive payments and tax credits and sometimes Medicaid for children with complex medical needs because its still cheaper than having the kid remain in foster care. If guardians or adopters ever lose their jobs and can’t support the kids they took in, they can go on welfare, just like the families the kids were taken away from.

The federal government is betting that won’t happen. The federal government has started offering states Title IV funding for achieving ‘permanency’ through guardianship but it is a relatively new development. Title IV refers to federal student aid in which there is a demonstrable financial need to be able to attend public, private nonprofit and proprietary schools. Attendees of these colleges can receive student loans, grants or enter a work-study program.

Hopefully, guardianship would help stop the bullying of people into adoption. Some persons make guardianship sound like it is not as good as adoption for money related reasons. It is outrageous that ‘the system’ is manipulating teens into believing that adoption offers them more stability and oversight than foster care. Foster care meets their needs until they reach the age of 18. They have a right to facilitated visitation with their family. They can’t be moved out of the county where their family resides. They can’t be homeschooled or forced to participate in their caregiver’s religion. They don’t have to call their caregivers “mom” or “dad” and their care givers are not legally allowed to refer to them as their son or daughter. Their caregivers have to take them to mainstream doctors and dentists. They are assigned a caseworker to monitor the safety and appropriateness of the placement. If they are abused in a foster home, they can sue the state and be awarded damages. They always have the right to be returned to live with their family – if it ever becomes safe and however possible – even after their parents rights have been terminated – ONLY if they have NOT been adopted.

Child Protective Services pushes for adoption in order to meet quotas. They receive bounty payments when the meet federal government requirements for completing placements into adoptions. When kids age out of foster care, they age out with their rights intact and there are many programs and scholarships available to them as former foster youth. These would not be available to them, if they are adopted or obtain a guardian. With both guardianship and adoption, the child loses the oversight of the state. The state is freed from the liability related to what happens to the person in the adoptive home or at the hands of the guardian, if any abuse occurs.

At least with guardianship, the youth remains a member of their family with all kinship rights intact – permanently. The guardian has to do the job of a parent without the title. Legally a child is entitled to the same level of care and support from a guardian that they would receive from an adoptive parent, only they won’t lose their kinship in their family and they can return to their parents, if the situation improves. The guardian does not have a right to keep the person permanently. A guardian also is not allowed to exploit a child in their care, the way an adopter can (such as putting them on Youtube and profiting off filming their every move, as so many adopters and parents do these days). Adopting without changing the birth certificate is not as good as guardianship but it is vastly better than adopting and changing the birth certificate for those who are forced to adopt their kin, rather than serve as guardians.

Did You Know ?

Did you know that among the many hurdles that parents face when their children are removed (often due to poverty mainly) and placed in foster care, that these struggling parents are also hand a bill for the costs of that foster care of their children ? This has been the way that it has been handled but that may change over the coming weeks and months.

According to Aysha Schomburg, the associate commissioner of the Children’s Bureau which is the agency that provides federal funding to state and county child welfare agencies, their “default position” now is that states should stop charging the child’s parents and “find innovative ways to support families.” She adds, “When a state child support agency takes what little funds a parent has when a child enters foster care, it makes it harder for that parent to pay for gas or bus fare or to get to work; harder to get or keep stable housing. That’s not what we want.”

Impoverished families keep getting those bills until they’re paid off completely. Some parents still get billed for years — even 20 years or more — after being reunited with their kids. So this is a financial burden that can stick with families for years — and decades.

Examples of how big these bills can be . . . a Minnesota mother’s tax refunds were garnished after her three children were placed in foster care. That bill was over $19,000 after her children spent 20 months in foster care. One couple in Washington state had the horrendous experience of having their son taken from them due to the husband being charged with assaulting their 4 year old son. Eventually, all charges were dismissed but it took 13 months to get their son came back home. The state sent the couple a bill of $8,000 for the boy’s foster care and garnished their paychecks.

The policy changes will only apply to parents coming into the system now in some states. In reality, some states will be more generous and other states will not. A 1984 federal law requires state and county child welfare agencies to, when “appropriate,” collect the money and return part of it to the US Treasury to reimburse the federal government, which pays for a large percentage of foster care.

There is more where the content for today’s blog was sourced – “The federal government will allow states to stop charging families for foster care” by Joseph Shapiro posted at NPR’s website.