By Dorothy E. Roberts
In the Dobbs v. Jackson Women’s Health Organization oral arguments, Justice Amy Coney Barrett presented parental relinquishment as an alternative to abortion access. In the leaked Supreme Court opinion in Dobbs, which overturned Roe v. Wade, Justice Alito referred to this idea approvingly.
We asked Professor Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at the University of Pennsylvania, to highlight some of the problems with that claim.
Drawing on her recently published book, Torn Apart: How the Child Welfare System Destroys Black Families – and How Abolition Can Build a Safer World (Basic Books, 2022), Roberts explains in the conversation below how the child welfare system uses family separation (or the threat thereof) as a means of policing Black families (as well as Native families, other non-white families, and poor families). This, she adds, is a result of the state’s failure to invest in families in fundamental ways, and is a clear manifestation of reproductive violence.
An inequitable system
Whether it’s children who are placed for private adoption, or children who are placed for adoption out of foster care, the conditions that lead to these transfers of children are typically shaped by inequitable hierarchies and structures in our society.
In other words, it is almost always the case that children available for public adoption in the United States were forcibly taken from families in Black, Indigenous, and impoverished white communities. Even in private adoption, what’s considered the voluntary placement of children for adoption is structured by inequitable social and power arrangements so that less privileged mothers relinquish their babies to more privileged adoptive parents. This same pattern is mirrored in international adoption, where people in the United States adopt children from non-Western nations. Adoption never works the other way around. That political reality of adoption is obscured by [Justice Amy Coney Barrett’s] comment.
Justice Coney Barrett is ignoring the ways in which the whole system of family separation, foster care, and adoption is extremely coercive. Telling women to give up the babies whom they were forced to bear is similarly coercive. Moreover, most of the babies Justice Coney Barrett envisions being left at safe havens will be placed in foster care because there won’t be enough people seeking to adopt them. And so, calling this a “voluntary” placement of children hides the many kinds of coercion in the child welfare system — what I’m calling the “family policing system.”
On one level, caseworkers, police officers, and judges force family caregivers to give up custody of their children by taking children from them. That leads to about 250,000 children separated from their families every year.
But there’s also what some scholars are calling a “shadow foster care system.” This is where caseworkers pressure family caregivers to agree to so-called “safety plans,” on the threat that if they don’t sign them, the child protection agency will bring a formal petition in court, which could lead to legal loss of custody. In addition to the 250,000 children taken from their families in the context of court proceedings, there are another estimated 250,000 children who are displaced and put in some form of substitute care through this shadow system. This displacement is considered to be legally voluntary, because family caregivers sign forms consenting to it, but they’re actually coerced into signing these forms by caseworkers’ threats.
The entire way in which children end up in foster care and available for adoption is extremely coercive, and it’s intended to be. It’s a system that operates under the threat of child removal and potential termination of parental rights.
I think many people ignore that when children are adopted from foster care, it’s only because their parents’ rights have been terminated – because a judge has permanently severed their legal relationship with their parents. And that is usually because the parents have failed to comply with a set of mandates that are issued by so-called child protection agencies. So, the way in which children end up available for adoption is actually through a system that relies on coercion, threats, and terror.
The confluence of neoliberal capitalist and racist policies
Adoption has been promoted as a private, market-based solution for meeting the needs of children and families. The unmet material needs of children and families are the main reason why children are placed in foster care, and then made available for adoption, in the first place — because states define neglect as failure to provide for children’s well-being; they confuse neglect and poverty. Family caregivers who lack the financial means to meet children’s needs risk losing custody of their children, and our country does little to nothing to support them. In fact, our society is structured to deprive these families of the income, housing, medical care, and other resources required to meet their children’s needs.
One example of this relationship between adoption and lack of state support for families comes from twin federal legislation in the 1990s. The Personal Responsibility and Work Opportunity Act, the welfare restructuring law, was passed in 1996 and signed by President Clinton. This law abolished the federal entitlement to welfare, and turned the former public benefit to support care for children into a behavior modification system. Its purpose was no longer to provide any kind of aid to families with children, but instead to coerce mothers who receive welfare to change their behaviors, by getting married, taking low-wage jobs, and having fewer children. Welfare reform gave states immense power to condition the receipt of welfare on all sorts of requirements, all based on the stigma and racist stereotypes about mothers who receive welfare, such as the false myth of the Welfare Queen. The following year, in 1997, the same Congress passed the Adoption and Safe Families Act, which sought to deal with the large numbers of children who had been separated from their families and put into the foster system by requiring that child welfare authorities speed up termination of parental rights and giving states incentives to place more children in foster care for adoption. The law was fueled by racialized rhetoric that advocated “freeing” Black children, who made up a disproportionate share of the foster care population, from their mothers so they could be adopted.
This was the first time in U.S. history where the federal government required states to “protect” children through child welfare agencies, but without a federal obligation for states to provide income to families their care. I see this as the confluence of neoliberal racial capitalist policies: instead of providing for the material needs of children and families, Congress turned to this private measure of adoption. It prioritized adoption over family support by simultaneously abolishing the entitlement to welfare, speeding up the termination of the rights of impoverished parents, and incentivizing the adoption of their children. That’s another way in which the Justice Coney Barrett’s comments ignore how these coercive policies of family policing, denial of adequate resources for caregiving, and adoption all come together in an oppressive way.
Family policing is structured to provide for children only when parents and other family caregivers have lost custody of those children. Whether that coerced relinquishment of custody involves fostering or adoption, it is a perverse way in which our society forces families into an unjust bargain, where the cost of receiving care for children is giving up custody of them.
Justice Coney Barrett’s comments highlight the way in which forms of reproductive control and violence intersect in the lives of Black women, who are disproportionately entangled in the prison system, in the family policing system, and in the welfare behavior modification system. In opposition to that, reproductive justice activists have, from the very beginning of elucidating a reproductive justice framework, included in that vision of justice the freedom to not to have children or to have children, and also to raise children in a safe, supported, healthy environment. I see the Justice’s comments as a violation of all of these aspects of reproductive justice, because she is supporting the denial of freedom to have or not to have a child, as well as the denial of the freedom to raise a child in an equal and humane and caring society — a society where adoption isn’t forced upon politically marginalized people as a response to crises caused by race, class, and gender inequities.