Shotgun Adoption

Kathryn Joyce

The National Abortion Federation estimates that as many as 4,000 CPCs operate in the United States, often using deceptive tactics like posing as abortion providers and showing women graphic antiabortion films. While there is growing awareness of how CPCs hinder abortion access, the centers have a broader agenda that is less well known: they seek not only to induce women to "choose life" but to choose adoption, either by offering adoption services themselves, as in Bethany's case, or by referring women to Christian adoption agencies. Far more than other adoption agencies, conservative Christian agencies demonstrate a pattern and history of coercing women to relinquish their children.

This article was originally published in the September 14, 2009 edition of The Nation; research for the article was provided by the Puffin Foundation Investigative Fund at The Nation Institute.

Carol Jordan, a 32-year-old pharmacy technician, was living in
Greenville, South Carolina, in 1999 when she became pregnant. She’d
already decided against abortion, but she was struggling financially and
her boyfriend was unsupportive. Looking through the Yellow Pages for
help, she spotted an ad under "crisis pregnancies" for Bethany Christian
Services. Within hours of calling, Jordan (who asked to be identified
with a pseudonym) was invited to Bethany’s local office to discuss free
housing and medical care.


Bethany, it turned out, did not simply specialize in counseling pregnant
women. It is the nation’s largest adoption agency, with more than
eighty-five offices in fifteen countries.

When Jordan arrived, a counselor began asking whether she’d considered
adoption and talking about the poverty rates of single mothers. Over
five counseling sessions, she convinced Jordan that adoption was a
win-win situation: Jordan wouldn’t "have death on her hands," her bills
would be paid and the baby would go to a family of her choosing in an
open adoption. She suggested Jordan move into one of Bethany’s
"shepherding family" homes, away from the influence of family and
friends.

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Crisis pregnancy centers (CPCs), the nonprofit pregnancy-testing
facilities set up by antiabortion groups to dissuade women from having
abortions, have become fixtures of the antiabortion landscape,
buttressed by an estimated $60 million in federal abstinence and
marriage-promotion funds. The National Abortion Federation estimates
that as many as 4,000 CPCs operate in the United States, often using
deceptive tactics like posing as abortion providers and showing women
graphic antiabortion films. While there is growing awareness of how CPCs
hinder abortion access, the centers have a broader agenda that is less
well known: they seek not only to induce women to "choose life" but to
choose adoption, either by offering adoption services themselves, as in
Bethany’s case, or by referring women to Christian adoption agencies.
Far more than other adoption agencies, conservative Christian agencies
demonstrate a pattern and history of coercing women to relinquish their
children.

Bethany guided Jordan through the Medicaid application process and in
April moved her in with home-schooling parents outside Myrtle Beach.
There, according to Jordan, the family referred to her as one of the
agency’s "birth mothers"–a term adoption agencies use for relinquishing
mothers that many adoption reform advocates reject–although she hadn’t
yet agreed to adoption. "I felt like a walking uterus for the agency,"
says Jordan.

Jordan was isolated in the shepherding family’s house; her only social
contact was with the agency, which called her a "saint" for continuing
her pregnancy but asked her to consider "what’s best for the baby."
"They come on really prolife: look at the baby, look at its heartbeat,
don’t kill it. Then, once you say you won’t kill it, they ask, What can
you give it? You have nothing to offer, but here’s a family that goes on
a cruise every year."

Jordan was given scrapbooks full of letters and photos from hopeful
adoptive parents hoping to stand out among the estimated 150 couples for
every available baby. Today the "birthmother letters" are on Bethany’s
website: 500 couples who pay $14,500 to $25,500 for a domestic infant
adoption, vying for mothers’ attention with profuse praise of their
"selflessness" and descriptions of the lifestyle they can offer.

Jordan selected a couple, and when she went into labor, they attended
the birth, along with her counselor and shepherding mother. The next
day, the counselor said that fully open adoptions weren’t legal in South
Carolina, so Jordan wouldn’t receive identifying information on the
adoptive parents. Jordan cried all day and didn’t think she could
relinquish the baby. She called her shepherding parents and asked if she
could bring the baby home. They refused, chastising Jordan sharply. The
counselor told the couple Jordan was having second thoughts and brought
them, sobbing, into her recovery room. The counselor warned Jordan that
if she persisted, she’d end up homeless and lose the baby anyway.

"My options were to leave the hospital walking, with no money," says
Jordan. "Or here’s a couple with Pottery Barn furniture. You sacrifice
yourself, not knowing it will leave an impact on you and your child for
life."

The next morning, Jordan was rushed through signing relinquishment
papers by a busy, on-duty nurse serving as notary public. As soon as
she’d signed, the couple left with the baby, and Jordan was taken home
without being discharged. The shepherding family was celebrating and
asked why Jordan wouldn’t stop crying. Five days later, she used her
last $50 to buy a Greyhound ticket to Greenville, where she struggled
for weeks to reach a Bethany post-adoption counselor as her milk came in
and she rapidly lost more than fifty pounds in her grief.

When Jordan called Bethany’s statewide headquarters one night, her
shepherding mother answered, responding coldly to Jordan’s lament.
"You’re the one who spread your legs and got pregnant out of wedlock,"
she told Jordan. "You have no right to grieve for this baby."

Jordan isn’t alone. On an adoption agency rating website, Bethany is
ranked poorly by birth mothers. Its adoptive parent ratings are higher,
although several adopters described the coercion they felt "our birth
mother" underwent. But neither is Bethany alone; in the constellation of
groups that constitute the Christian adoption industry, including CPCs,
maternity homes and adoption agencies, Bethany is just one large star.
And instances of coercion in adoption stretch back nearly seventy years.

Ann Fessler, author of The Girls Who Went Away: The Hidden History of
Women Who Surrendered Children for Adoption in the Decades Before Roe v.
Wade
, has meticulously chronicled the lives of women from the "Baby
Scoop Era": the period from 1945 to 1973, when single motherhood was so
stigmatized that at least 1.5 million unwed American mothers
relinquished children for adoption, often after finishing pregnancies
secretly in maternity homes. The coercion was frequently brutal,
entailing severe isolation, shaming, withholding information about
labor, disallowing mothers to see their babies and coercing
relinquishment signatures while women were drugged or misled about their
rights. Often, women’s names were changed or abbreviated, to bolster a
sense that "the person who went away to deliver the baby was someone
else" and that mothers would later forget about the babies they had
given up. In taking oral histories from more than a hundred Baby Scoop
Era mothers, Fessler found that not only was that untrue but most
mothers suffered lifelong guilt and depression.

The cultural shift that had followed World War II switched the emphasis
of adoption from finding homes for needy infants to finding children for
childless couples. Karen Wilson-Buterbaugh, founder of the Baby Scoop
Era Research Initiative, has compiled sociological studies from the era,
including Clark Vincent’s speculation in his 1961 book Unmarried
Mothers
that "if the demand for adoptable babies continues to exceed
the supply…it is quite possible that, in the near future, unwed
mothers will be ‘punished’ by having their children taken from them
right after birth"–under the guise of protecting the "best interests of
the child."

The Baby Scoop Era ended with Roe v. Wade, as abortion was
legalized and single motherhood gained acceptance. The resultant fall in
adoption rates was drastic, from 19.2 percent of white, unmarried
pregnant women in 1972 to 1.7 percent in 1995 (and lower among women of
color). Coinciding with this decline was the rise of the religious right
and the founding of crisis pregnancy centers.

In 1984 Leslee Unruh, founder of Abstinence Clearinghouse, established a
CPC in South Dakota called the Alpha Center. The first center had opened
in 1967, but in 1984 Unruh’s CPC was still a relatively new idea. In
1987 the state attorney’s office investigated complaints that Unruh had
offered young women money to carry their pregnancies to term and then
relinquish their babies for adoption.

"There were so many allegations about improper adoptions being made and
how teenage girls were being pressured to give up their children,"
then-state attorney Tim Wilka told the Argus Leader, that the
governor asked him to take the case. The Alpha Center pleaded no contest
to five counts of unlicensed adoption and foster care practices;
nineteen other charges were dropped, including four felonies. But where
Unruh left off, many CPCs and antiabortion groups have taken up in her
place.

It’s logical that antiabortion organizations seeking to prevent
abortions and promote traditional family structures would aggressively
promote adoption, but this connection is often overlooked in the
bipartisan support that adoption promotion enjoys as part of a
common-ground truce in the abortion wars. In President Obama’s speech at
Notre Dame, he suggested that one solution to lowering abortion rates is
"making adoption more available." And in a recent online debate,
Slate columnist William Saletan and Beliefnet editor Steven
Waldman proposed that unmarried women be offered a nominal cash payment
to choose adoption over abortion as a compromise between prochoice and
prolife convictions.

Compared with pre-Roe days, today women with unplanned
pregnancies have access to far more information about their
alternatives. However, Fessler says, they frequently encounter CPCs that
pressure them to give the child to a family with better resources. "Part
of the big picture for a young woman who’s pregnant," she says, "is that
there are people holding out their hand, but the price of admission is
giving up your child. If you decide to keep your child, it’s as if
you’re lost in the system, whereas people fight over you if you’re ready
to surrender. There’s an organization motivated by a cause and profit.
It’s a pretty high price to pay: give away your first-born, and we’ll
take care of you for six months."

Christian adoption agencies court pregnant women through often
unenforceable promises of open adoption and the option to choose the
adoptive parents. California’s Lifetime Adoption Foundation even offers
birth mothers college scholarships. Additionally, maternity homes have
made a comeback in recent years, with one network of 1,100 CPCs and
homes, Heartbeat International, identifying at least 300 homes in the
United States. Some advertise almost luxurious living facilities, though
others, notes Jessica DelBalzo, founder of an anti-adoption group,
Adoption: Legalized Lies, continue to "bill themselves as homes for
wayward girls who need to be set straight."

Most homes are religiously affiliated, and almost all promote adoption.
Many, like Christian Homes and Family Services (CHFS), reserve their
beds for women planning adoption. Others keep only a fraction for women
choosing to parent. Most homes seamlessly blend their advertised crisis
pregnancy counseling with domestic and international adoption services,
and oppose unmarried parenthood as against "God’s plan for the family."

Religious women may be particularly susceptible to CPC coercion, argues
Mari Gallion, a 39-year-old Alaska mother who founded the support group
SinglePregnancy.com after a CPC unsuccessfully pressured her to
relinquish her child ten years ago. Gallion, who has worked with nearly
3,000 women with unplanned pregnancies, calls CPCs "adoption rings" with
a multistep agenda: evangelizing; discovering and exploiting women’s
insecurities about age, finances or parenting; then hard-selling
adoption, portraying parenting as a selfish, immature choice. "The women
who are easier to coerce in these situations are those who subscribe to
conservative Christian views," says Gallion. "They’ll come in and be
told that, You’ve done wrong, but God will forgive you if you do the
right thing."

Mirah Riben, vice president of communications for the birth mother group
Origins-USA, as well as author of The Stork Market: America’s
Multi-Billion Dollar Unregulated Adoption Industry
, says that many
mothers struggle for decades with the fallout of "a brainwashing
process" that persuades them to choose adoption and often deny for
years–or until their adoptions become closed–that they were pressured
into it. "I see a lot of justification among the young mothers. If their
adoption is remaining open, they need to be compliant, good birth
mothers and toe the line. They can’t afford to be angry or bitter,
because if they are, the door will close and they won’t see the kid."

Such was the case for Karen Fetrow, a Pennsylvania mother who
relinquished her son in 1994 through a Bethany office outside
Harrisburg. Fetrow, a formerly pro-adoption evangelical, sought out a
Christian agency when she became pregnant at 24. Although Fetrow was in
a committed relationship with the father, now her husband of sixteen
years, Bethany told her that women who sought to parent were on their
own.

After Fetrow relinquished her son, she says she received no counseling
from Bethany beyond one checkup phone call. Three months later, Bethany
called to notify her that her legal paperwork was en route but that she
shouldn’t read it or attend court for the adoption finalization. "I
didn’t know that the adoption wasn’t final and that I had three months
to change my mind," says Fetrow. "The reality was that if I had gone, I
might have changed my mind–and they didn’t want me to."

Although for thirteen years Fetrow couldn’t look at an infant without
crying, she continued to support adoption and CPCs. But when she sought
counseling–a staple of Bethany’s advertised services–the director of
her local office said he couldn’t help. When her son turned 5, she
stopped receiving updates from his adoptive parents, although she’d
expected they would continue until he was 18. She asked Bethany about
it, and the agency stalled for three years before explaining that the
adoptive parents had only agreed to five years of updates. Fetrow
complained on Bethany’s online forum and was banned from the site.

Kris Faasse, director of adoption services at Bethany, said that while
she was unaware of Fetrow’s and Jordan’s particular stories, their
accounts are painful for her to hear. "The fact that this happens to any
mom grieves me and would not be how we wanted to handle it." She added
that only 25-40 percent of women who come to Bethany choose adoption,
which, she said, "is so important, because we never want a woman to feel
coerced into a plan."

Shortly after Fetrow was banned from Bethany’s forum, the local Bethany
office attempted to host a service at her church, "painting adoption as
a Christian, prolife thing." At a friend’s urging, Fetrow told her
pastor about her experience, and after a meeting with the Bethany
director–who called Fetrow angry and bitter–the pastor refused to let
Bethany address the congregation. But Fetrow’s pastor seems an
exception.

In recent years, the antiabortion push for adoption has been taken up as
a broader evangelical cause. In 2007 Focus on the Family hosted an
Evangelical Orphan Care and Adoption Summit in Colorado Springs. Ryan
Dobson, the adopted son of Focus founder James Dobson, has campaigned on
behalf of CHFS and Unruh’s Alpha Center. Last year 600 church and
ministry leaders gathered in Florida to promote adoption through the
Christian Alliance for Orphans. And a recent book in the idiosyncratic
genre of prolife fiction, The River Nile, exalted a clinic that
tricked abortion-seeking women into adoption instead.

Such enthusiasm for Christians to adopt en masse begins to seem like a
demand in need of greater supply, and this is how critics of current
practices describe it: as an industry that coercively separates willing
biological parents from their offspring, artificially producing
"orphans" for Christian parents to adopt, rather than helping birth
parents care for wanted children.

In 1994 the Village Voice investigated several California CPCs in
Care Net, the largest network of centers in the country, and found gross
ethical violations at an affiliated adoption agency, where director
Bonnie Jo Williams secured adoptions by warning pregnant women about
parenthood’s painfulness, pressuring them to sign papers under heavy
medication and in one case detaining a woman in labor for four hours in
a CPC.

There were nineteen lawsuits against CPCs between 1983 and 1996, but
coercive practices persist. Joe Soll, a psychotherapist and adoption
reform activist, says that CPCs "funnel people to adoption agencies who
put them in maternity homes," where ambivalent mothers are subjected to
moralistic and financial pressure: warned that if they don’t give up
their babies, they’ll have to pay for their spot at the home, and given
conflicted legal counsel from agency-retained lawyers. Watchdog group
Crisis Pregnancy Center Watch described an Indiana woman misled into
delaying an abortion past her state’s legal window and subsequently
pressured into adoption.

Literature from CPCs indicates their efforts to raise adoption rates. In
2000 the Family Research Council (FRC), the political arm of Focus on
the Family, commissioned a study on the dearth of adoptable babies being
produced by CPCs, "The Missing Piece: Adoption Counseling in Pregnancy
Resource Centers," written by the Rev. Curtis Young, former director of
Care Net.

Young based the report on the market research of consultant Charles
Kenny, who questioned women with unplanned pregnancies and Christian CPC
counselors to identify obstacles to higher adoption rates. Young argued
that mothers’ likelihood to choose adoption was based on their level of
maturity and selflessness, with "more mature respondents…able to feel
they are nurturing not only their children, but also, the adoptive
parents," and "less mature women" disregarding the baby’s needs by
seeking to parent. He wrote that CPCs might persuade reluctant women by
casting adoption as redemption for unwed mothers’ "past failures" and a
triumph over "selfishness, an ‘evil’ within themselves." Though Young
noted that some CPCs were wary of looking like "baby sellers," he
nonetheless urged close alliances with adoption agencies to ensure that
the path to adoption was "as seamless and streamlined as possible."

Young was speaking to a larger audience than the FRC faithful. Care
Net runs 1,160 CPCs nationwide and partners with Heartbeat
International to host a national CPC hot line. Kenny is tied to the
cause as a "Bronze"-level benefactor of the National Council for
Adoption (NCFA), the most prominent adoption lobby group in the
country, in the company of other benefactors like Bethany; Texas
maternity home giant Gladney; the Good Shepherd Sisters, a Catholic
order serving "young women of dissolute habits"; and the Mormon
adoption agency LDS Family Services.

The federally funded NCFA has a large role in spreading teachings like
these through its Infant Adoption Awareness Training Program, a
Department of Health and Human Services initiative it helped pass in
2000 that has promoted adoption to nearly 18,000 CPC, school, state,
health and correctional workers since 2002. Although the program
stipulates "nondirective counseling for pregnant women," it was
developed by a heavily pro-adoption pool of experts, including Kenny,
and the Guttmacher Institute reports that trainees have complained about
the program’s coercive nature.

In 2007 the FRC and NCFA went beyond overlapping mandates to collaborate
on the publication of another pamphlet, written by Kenny, "Birthmother,
Goodmother: Her Story of Heroic Redemption," which targets "potential
birthmothers" before pregnancy: a seeming contradiction of abstinence
promotion, unless, as DelBalzo wryly notes, the abstinence movement
intends to create "more babies available for adoption."

Even as women have gained better reproductive healthcare access,
adoption laws have become less favorable for birth mothers, advancing
the time after birth when a mother can relinquish–in some states now
within twenty-four hours–and cutting the period to revoke consent
drastically or completely. Adoption organizations have published
comparative lists of state laws, almost as a catalog for prospective
adopters seeking states that restrict birth parent rights. Among the
worst is Utah.

Jo Anne Swanson, a court-appointed adoption intermediary, has studied a
number of cases in which women have been lured out of their home states
to give birth and surrender their children under Utah’s lax laws–which
require only two witnesses for relinquishments that have occurred in
hotel rooms or parks–to avoid interstate child-placement regulations.
Some women who changed their minds had agencies refuse them airfare
home. And one Utah couple, Steve and Carolyn Mintz, told the Salt
Lake Tribune
that the director of their adoption agency flew into a
rage at a mother in labor who’d backed out of their adoption, and the
mother and her infant ended up in a Salt Lake City homeless shelter.
Many complaints have been lodged by birth fathers who sought to parent
their children but were disenfranchised by Utah’s complicated system of
registering paternity.

Utah isn’t alone in attacking birth fathers’ rights. From 2000 to 2001,
a Midwestern grandmother named Ann Gregory (a pseudonym) fought doggedly
for her son, a military enlistee, to retain parental rights over his and
his girlfriend’s child. When the girlfriend became pregnant, her
conservative evangelical parents brought her to a local CPC affiliated
with their megachurch. The CPC was located in the same office as an
adoption agency: its "sister organization" of eighteen years. The CPC
called Gregory’s son, who was splitting his time between home and boot
camp, pressuring him to "be supportive" of his girlfriend by signing
adoption papers. The agency also called Gregory and her ex-husband,
quoting Scripture "about how we’re all adopted children of Jesus
Christ."

What followed, Gregory says, was "six weeks of pure hell," as she felt
her son and his girlfriend were "brainwashed" into adoption. She
researched coercive adoption and retained a lawyer for her son. When the
mother delivered, the attorney had Gregory notify a hospital social
worker that parental rights were being contested, so the baby wouldn’t
be relinquished. Two days later, as the adoption agency was en route to
take custody, Gregory filed an emergency restraining order. The matter
had to be settled in court, where Gregory’s son refused to consent to
adoption. The legal bill for two weeks came to $9,000.

Both parents went to college, and though they are no longer together,
Gregory praises their cooperation in jointly raising their son, now 8.
But she is shaken by what it took to prevail. "You’ve got to get on it
before the child is born, and you’d better have $10,000 sitting around.
I can’t even imagine how they treat those in a worse position than us.
They say they want to help people in a crisis pregnancy, but really they
want to help themselves to a baby."

"A lot of those moms from the ’50s and ’60s were really damaged by
losing their child through the maternity homes," says Gregory. "People
say those kinds of things don’t happen anymore. But they do. It’s just
not a maternity home on every corner; it’s a CPC."

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

News Law and Policy

Texas Lawmaker’s ‘Coerced Abortion’ Campaign ‘Wildly Divorced From Reality’

Teddy Wilson

Anti-choice groups and lawmakers in Texas are charging that coerced abortion has reached epidemic levels, citing bogus research published by researchers who oppose legal abortion care.

A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”

Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.

White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy. 

“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.

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White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.

Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.

“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”

White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.

During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”

Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.

There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.

‘Extremely common but hidden’

“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”

Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.

“I believe the number is closer to 50 percent, in my opinion,” Parker said. 

There were 54,902 abortions in Texas in 2014, according to recently released statistics from the Texas Department of State Health Services (DSHS). The state does not collect data on the reasons people seek abortion care. 

White and Parker referenced an oft cited study on coerced abortion pushed by the anti-choice movement.

“According to one published study, sixty-four percent of American women who had abortions felt forced or unduly pressured by someone else to have an unwanted abortion,” White said in a statement.

This statistic is found in a 2004 study about abortion and traumatic stress that was co-authored by David Reardon, Vincent Rue, and Priscilla Coleman, all of whom are among the handful of doctors and scientists whose research is often promoted by anti-choice activists.

The study was cited in a report by the Elliot Institute for Social Sciences Research, an anti-choice organization founded by Reardon. 

Other research suggests far fewer pregnant people are coerced into having an abortion.

Less than 2 percent of women surveyed in 1987 and 2004 reported that a partner or parent wanting them to abort was the most important reason they sought the abortion, according to a report by the Guttmacher Institute.

That same report found that 24 percent of women surveyed in 1987 and 14 percent surveyed in 2004 listed “husband or partner wants me to have an abortion” as one of the reasons that “contributed to their decision to have an abortion.” Eight percent in 1987 and 6 percent in 2004 listed “parents want me to have an abortion” as a contributing factor.

‘Flawed research’ and ‘misinformation’  

Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.

“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.  

White sponsored or co-sponsored dozens of bills during the 2015 legislative session, including several anti-choice bills. The bills she sponsored included proposals to increase requirements for abortion clinics, restrict minors’ access to abortion care, and ban health insurance coverage of abortion services.

White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.

The bill was met by skepticism by both Republican lawmakers and anti-choice activists.

State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.

“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”

‘Very small piece of the puzzle of a much larger problem’

White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”

There is research that suggests a connection between coerced abortion and domestic and sexual violence.

Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.

“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”

A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.

Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.

‘Tactic to intimidate and coerce women into not choosing to have an abortion’

TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”

One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”

The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.

The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.

“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”

“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.

Among the other resources that TJF provides is a document produced by Life Dynamics, a prominent anti-choice organization based in Denton, Texas.

Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”

Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.

Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.

Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.

“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.

Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.

“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”

“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.