Analysis Abortion

Criminalized Pregnancies: When One Woman’s Suicide Attempt Becomes Murder

Robin Marty & Jessica Mason Pieklo

An excerpt from Crow After Roe, the new book by Rewire Senior Political Reporter Robin Marty and Senior Legal Analyst Jessica Mason Pieklo.

The following is an excerpt from chapter five of Crow After Roe: How “Separate But Equal” Is the New Standard in Women’s Health and How We Can Change That (Ig Publishing) by Rewire‘s Robin Marty and Jessica Mason Pieklo.

Bei Bei Shuai never believed she would find herself on her knees, sobbing and begging her lover not to leave her. A recent Chinese immigrant to this country, Shuai was eight months pregnant when her boyfriend, Zhiliang Guan, informed her that he wasn’t actually planning to get a divorce and marry her as he had promised, but was instead returning to his wife. Shuai was heartbroken and believed there was nothing left for her. On December 23, 2010, she left a suicide note saying that she would “take this baby with me to Hades” and ingested rat poison, intending to end her own life.

Luckily, friends discovered Shuai and convinced her to go to a hospital, where doctors worked quickly to save her life. While Shuai was physically unharmed, sadly, the same could not be said for her baby. The infant girl Shuai would call Angel was monitored in utero for over a week, but on December 31, doctors became concerned for her condition and performed a Caesarean section. Angel came into the world on New Year’s Eve at thirty-three weeks gestation. Two days later, she was discovered to have a massive bleed in her brain and was removed from life support.

If Shuai had been brokenhearted after her lover left her, it was nothing compared to how she felt after the death of her child. After Angel was removed from life support, Shuai cradled the baby in her arms for the five hours the tiny infant held on, offering in prayer to give up her own life if her daughter could be spared and demanding that the baby not be taken from her.

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When Angel died on January 3, 2011, Shuai was immediately transferred to the mental health wing of the hospital, grief stricken and under heavy sedation. She remained there until March, undergoing treatment. Upon her release, she was charged with murder and thrown in jail.

When Angel died, the coroner indicated the cause of death as the rat poison taken by Shuai, despite the fact that cerebral bleeding is a common condition in babies born before thirty-four weeks gestation. In addition, Child Protection Services had immediately been alerted when Shuai entered the hospital. Based on these actions, the Indianapolis police arrived at the hospital shortly after Angel’s death to conduct interviews to determine whether they would charge Shuai with murder or feticide. In 2009, in response to a robbery that caused a pregnant woman to lose the twins she was carrying, the Indiana house had voted unanimously to strengthen the state’s “feticide” law to include any action that causes an unborn child to die, excluding abortion. The law was meant to add additional punishment to crimes that involved pregnant women, with a sentence of up to twenty years in prison if a pregnancy ended as the result of an illegal act. No one had considered that the law could also be used on a pregnant woman herself, especially not one who had committed her own “crime” as a result of mental illness.

At first, the police believed that Shuai had taken the poison in an attempt not to kill herself but to terminate her pregnancy. Initial news reports made no mention of suicide or of her sudden breakup with Guan. The police didn’t even seem sure about a motive behind the act. “It is a very unfortunate situation, very rare circumstances that someone would take rat poison in an attempt to either harm themselves or their unborn baby,” said Kendale Adams, public information officer for the Indianapolis Police Department, when discussing the case on the local ABC affiliate a few hours after the investigation had begun. “The fact that there was no licensed physician supervising in a particular case means that the act of abortion is a criminal offense,” former Marion County judge Gary Miller told ABC.

What is most puzzling, however, was why, once it became clear that Shuai was indeed trying to end her own life and that the death of Angel was not her intent, prosecutors refused to drop the charges. In fact, the longer the investigation went on, and the more people and groups who came to Shuai’s defense, the more the state seemed to dig in its heels. Prosecutors claimed they’d thought long and hard about the circumstances before deciding to charge the mourning mother. “This is a very unique case,” David Rimstidt, Marion County chief trial deputy, told WRTV Indianapolis. “Every charging decision is very difficult and goes through a process where we consider all the facts, all the circumstances, and under this situation, we believe we’ve charged the two charges we can prove.”

In April, Shuai’s lawyer, Linda Pence, asked a judge to set bond, a request that was denied. The judge said that no one in the state who had been charged with murder had ever been offered bond, and Shuai’s case shouldn’t be any different. Pence appealed the ruling in June, but bail was again denied. The judge also denied a motion to dismiss the case, despite a friend-of-the-court brief filed by more than eighty pregnancy, women’s and civil rights groups—including the American College of Obstetricians and Gynecologists—in support of Shuai.”This was a depressed, seriously depressed woman who acted out of an irrational despair and tried to kill herself and, unfortunately, the fetus was harmed,” Dr. David Orentlicher, a law professor at the Indiana University School of Law and an adjunct professor of medicine at Indiana University School of Medicine, told the local ABC news affiliate. “She had no intent to harm her fetus. That was not the reason she did this.”

The basic argument of the prosecution was that the murder and feticide charges were appropriate because the same laws were being applied to Shuai as a pregnant woman that would be applied to anyone else who had caused the death of a fetus past viability. Shuai’s attorneys and supporters, on the other hand, countered with the claim that the law was being applied to her differently as a pregnant woman, as her actions couldn’t be separated from the events that may or may not have caused the death of her baby. Was Shuai in fact being held to a different standard by virtue of being pregnant? After all, if she had not been pregnant, the state would not have charged her with attempted murder for trying to kill herself, as suicide is not a crime in Indiana. If the fetus had died in utero, as opposed to surviving birth, Shuai at the very least would not have been looking at a murder charge and probably would have been granted bail while she awaited trial for feticide. Even if she had sought an abortion so late in her pregnancy, while those performing the procedure would have been charged with a crime, Shuai herself wouldn’t have been. But prosecutors were using the suicide as the “crime” on which they were pinning the feticide charge. However, it was because she had done everything in her power to save both herself and Angel that Shuai was facing so much time in prison. Emma Ketteringham, the director of legal advocacy for the National Advocates for Pregnant Women, said that Shuai had been a model patient and mother: “[Shuai] consented to everything the hospital suggested. She agreed to have a C-section and to let the hospital do whatever tests they wanted to do.”

In refusing to dismiss the charges against Shuai, the state of Indiana was in essence saying that unborn children had rights and that those rights outweighed those of the mother. “Prosecuting women based on the outcomes of their pregnancies violates their constitutional rights and is cruel and unusual punishment. And yet, this is what is happening,” wrote author Soraya Chemaly, who followed the Shuai case closely. “In this environment, and with no confidence that their rights will be respected and protected, pregnant women will continue to be jailed, in ever increasing numbers, in unexpected ways that violate their rights. Fear of imprisonment will result in women compromising their health and the health of their fetuses by avoiding pre-natal care, treatment for addiction and medical help if they fear they are miscarrying. They will have more abortions to avoid penalization.”

This is why Shuai had no choice but to fight the charges. Constitutional guarantees of due process ensure that no one “may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Yet Shuai was denied notice of what the law forbade, as she couldn’t have known that attempting suicide would subject her to criminal liability; not even the Indiana legislature had contemplated such an outcome when writing and passing the state’s “feticide” law. As her attorneys noted, there was not one single case in Indiana in which a woman had been charged with murder or feticide based solely on allegations that she did or did not do something during pregnancy. Nor had the homicide laws of the state ever been applied to the substantial number of pregnant women who experienced a stillbirth or miscarriage each year, or to other pregnant women in Indiana who had attempted suicide.

Shuai’s lawyer, Linda Pence, has accused Marion County prosecutor Terry Curry of attempting to enforce his own version of the feticide law in order to criminalize the failure to protect a fetus while pregnant. Looking specifically at Shuai’s situation, it seems clear that prosecutors were seeking out a “test case” for such a charge. Alerting Child Protective Services when Shuai arrived at the hospital, despite the fact that no child had been born yet, was in itself unusual. That police arrived soon after Angel’s death and began interviewing hospital staff is another clue. Curry has been accused of building his case solely on an inaccurate, unscientific and discredited autopsy report by a pathologist employed by a private entity named Biblical Dogs. According to a briefing filed by Shuai’s attorneys, the pathologist who performed the autopsy offered only a simple inferential analysis of the cause of the baby’s hemorrhage based upon nothing more than temporal events and non-medical hearsay statements. In other words, merely because Ms. Shuai ingested poison, that must have caused and thus was the cause of the death of her child. Significantly, the pathologist was not aware that Ms. Shuai had received indomethacin prior to caesarean surgery which has direct side effects upon the fetus alone, including hemorrhaging, and never reviewed Ms. Shuai’s medical records, thus precluding her from identifying other issues that could have caused fetal demise, such as a lack of oxygen to the brain. The prosecutor’s chief witness did not rule out, nor did she even consider other possible causes of death, never performed research or scientific studies relating to newborn brain bleeds, the effects of blood thinners on persons, pregnant women, or fetuses, nor did she review the medical research in these fields.

Ultimately, Shuai’s case leaves pregnant women exposed to the subjective, scientifically unsound opinions of law enforcement and the state. It raises severe equal protection concerns as well, since prosecutors have effectively made suicide a crime that applies only to pregnant women. Furthermore, a state engages in gender discrimination when it places additional restrictions on women from which men are exempt, which is unconstitutional under both state and federal law. Shuai did not become pregnant by herself, and, in fact, the father of her child, who promised to care for her and their baby and instead abandoned them, was the catalyst of her emotional breakdown. Yet he was not prosecuted despite the fact that “a person who intentionally causes another human being, by force, duress, or deception, to commit suicide commits causing suicide,” a Class B felony in the state of Indiana. The inescapable conclusion of the Shuai case was that in Indiana, a pregnant woman now had a fundamentally different relationship to the criminal justice system than did the father of the child.

The right to procreational privacy includes the right to carry a pregnancy to term. Indeed, this is the fundamental truth to women’s liberty interests: the ability to be free from state-determined procreation. What the state of Indiana was saying with the Shuai prosecution was that women with histories of mental health issues, addictions and other health conditions that might prevent them from being able to ensure a healthy birth outcome, as well as women who could not afford comprehensive prenatal care, drug treatment and mental health services, could now face prison time if they experienced a miscarriage, stillbirth, or neo-natal death. And what happens to those women the state determines are a risk for endangering future pregnancies? In the past, the United States has forcibly sterilized entire generations and categories of women. How can we be sure this country will not go to a similarly dark place again?

After an enormous outpouring of support, as well as pressure on the state, Bei Bei Shuai was finally released on $50,000 bail on May 22, 2012, 435 days after she had been arrested. She moved in with friends and wore an ankle monitor, awaiting her trial date. In July the prosecution suddenly offered Shuai a deal—plead guilty to feticide, and they wouldn’t try her for murder. The offer was tempting. With a feticide plea, though Shuai could conceivably serve twenty years in prison, the sentence could be as little as six years, and, if she was highly cooperative, she could receive a suspended sentence. If she didn’t take the plea and she was found guilty of murder, she could potentially spend most of the rest of her life in prison. Was the prosecution offering a nearly irresistible plea deal in the hopes that despite everything, they could still get a feticide precedent on the books? Had the murder charge always been just a threat to get Shuai, a grief-stricken immigrant still new to the country, to agree to a lesser charge? Whatever the prosecution’s motives, Shuai refused the deal. According to her attorney, Shuai is ready to fight not only to prove her own innocence but to ensure that no other woman in her circumstances is ever punished for the death of her baby if something happens during her pregnancy. She may never be able to bring her Angel back, but Bei Bei Shuai can still fight for her reputation and try to free herself from the stigma of guilt.

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.

Commentary Politics

Democrats’ Latest Platform Silent on Discriminatory Welfare System

Lauren Rankin

The current draft of the 2016 Democratic Party platform contains some of the most progressive positions that the party has taken in decades. But there is a critical issue—one that affects millions in the United States—that is missing entirely from the draft: fixing our broken and discriminatory welfare system.

While the Republican Party has adopted one of the most regressive, punitive, and bigoted platforms in recent memory, the Democratic Party seems to be moving decisively in the opposite direction. The current draft of the 2016 Democratic Party platform contains some of the most progressive positions that the party has taken in decades. It calls for a federal minimum wage of $15; a full repeal of the Hyde Amendment, which prohibits the use of federal Medicaid funding for abortion care; and a federal nondiscrimination policy to protect the rights of LGBTQ people.

All three of these are in direct response to the work of grassroots activists and coalitions that have been shifting the conversation and pushing the party to the left.

But there is a critical issue—one that affects millions in the United States—that is missing entirely from the party platform draft: fixing our broken and discriminatory welfare system.

It’s been 20 years since President Bill Clinton proudly declared that “we are ending welfare as we know it” when he signed into law a sweeping overhaul of the U.S. welfare system. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 implemented dramatic changes to welfare payments and eligibility, putting in place the Temporary Assistance for Needy Families (TANF) program. In the two decades since its enactment, TANF has not only proved to be blatantly discriminatory, but it has done lasting damage.

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In one fell swoop, TANF ended the federal guarantee of support to low-income single mothers that existed under the now-defunct Aid to Families with Dependent Children (AFDC) program. AFDC had become markedly unpopular and an easy target by the time President Clinton signed welfare reform legislation into law, with the racist, mythic trope of the “welfare queen” becoming pervasive in the years leading up to AFDC’s demise.

Ronald Reagan popularized this phrase while running for president in 1976 and it caught fire, churning up public resentment against AFDC and welfare recipients, particularly Black women, who were painted as lazy and mooching off the government. This trope underwrote much of conservative opposition to AFDC; among other things, House Republican’s 1994 “Contract with America,” co-authored by Newt Gingrich, demanded an end to AFDC and vilified teen mothers and low-income mothers with multiple children.

TANF radically restructured qualifications for welfare assistance, required that recipients sustain a job in order to receive benefits, and ultimately eliminated the role of the federal state in assisting poor citizens. The promise of AFDC and welfare assistance more broadly, including SNAP (the Supplemental Nutrition Assistance Program, commonly known as food stamps) benefits, is that the federal government has an inherent role of caring for and providing for its most vulnerable citizens. With the implementation of TANF, that promise was deliberately broken.

At the time of its passage, Republicans and many Democrats, including President Bill Clinton, touted TANF as a means of motivating those receiving assistance to lift themselves up by their proverbial bootstraps, meaning they would now have to work while receiving benefits. But the idea that those in poverty can escape poverty simply by working harder and longer evades the fact that poverty is cyclical and systemic. Yet, that is what TANF did: It put the onus for ending poverty on the individual, rather than dealing with the structural issues that perpetuate the state of being in poverty.

TANF also eliminated any federal standard of assistance, leaving it up to individual states to determine not only the amount of financial aid that they provide, but what further restrictions state lawmakers wish to place on recipients. Not only that, but the federal TANF program instituted a strict, lifetime limit of five years for families to receive aid and a two-year consecutive limit, which only allows an individual to receive two years of consecutive aid at a time. If after five total years they still require assistance to care for their family and themself, no matter their circumstances, they are simply out of luck.

That alone is an egregious violation of our inalienable constitutional rights to life, liberty, and the pursuit of happiness. Still, TANF went a step further: It also allowed states to institute more pernicious, discriminatory policies. In order to receive public assistance benefits through TANF, low-income single mothers are subjected to intense personal scrutiny, sexual and reproductive policing, and punitive retribution that does not exist for public assistance recipients in programs like Social Security and Supplemental Security Income disability programs, programs that Democrats not only continue to support, but use as a rallying cry. And yet, few if any Democrats are crying out for a more just welfare system.

There are so many aspects of TANF that should motivate progressives, but perhaps none more than the family cap and forced paternity identification policies.

Welfare benefits through the TANF program are most usually determined by individual states based on household size, and family caps allow a state to deny welfare recipients’ additional financial assistance after the birth of another child. At least 19 states currently have family cap laws on the books, which in some cases allow the state to deny additional assistance to recipients who give birth to another child. 

Ultimately, this means that if a woman on welfare becomes pregnant, she is essentially left with deciding between terminating her pregnancy or potentially losing her welfare benefits, depending on which state she lives in. This is not a free and valid choice, but is a forced state intervention into the private reproductive practices of the women on welfare that should appall and enrage progressive Democrats.

TANF’s “paternafare,” or forced paternity identification policy, is just as egregious. Single mothers receiving TANF benefits are forced to identify the father of their children so that the state may contact and demand financial payment from them. This differs from nonwelfare child support payments, in which the father provides assistance directly to the single mother of his child; this policy forces the fathers of low-income single women on welfare to give their money directly to the state rather than the mother of their child. For instance, Indiana requires TANF recipients to cooperate with their local county prosecutor’s child support program to establish paternity. Some states, like Utah, lack an exemption for survivors of domestic violence as well as children born of rape and incest, as Anna Marie Smith notes in her seminal work Welfare Reform and Sexual Regulation. This means that survivors of domestic violence may be forced to identify and maintain a relationship with their abusers, simply because they are enrolled in TANF.

The reproductive and sexual policing of women enrolled in TANF is a deeply discriminatory and unconstitutional intrusion. And what’s also disconcerting is that the program has failed those enrolled in it.

TANF was created to keep single mothers from remaining on welfare rolls for an indeterminate amount of time, but also with the express goal of ensuring that these young women end up in the labor force. It was touted by President Bill Clinton and congressional Republicans as a realistic, work-based solution that could lift single mothers up out of poverty and provide opportunities for prosperity. In reality, it’s been a failure, with anywhere from 42 to 74 percent of those who exited the program remaining poor.

As Jordan Weissmann detailed over at Slate, while the number of women on welfare decreased significantly since 1996, TANF left in its wake a new reality: “As the rolls shrank, a new generation of so-called disconnected mothers emerged: single parents who weren’t working, in school, or receiving welfare to support themselves or their children. According to [the Urban Institute’s Pamela] Loprest, the number of these women rose from 800,000 in 1996 to 1.2 million in 2008.” Weissmann also noted that researchers have found an uptick in “deep or extreme poverty” since TANF went into effect.

Instead of a system that enables low-income single mothers a chance to escape the cycle of poverty, what we have is a racist system that denies aid to those who need it most, many of whom are people of color who have been and remain systemically impoverished.

The Democratic Party platform draft has an entire plank focused on how to “Raise Incomes and Restore Economic Security for the Middle Class,” but what about those in poverty? What about the discriminatory and broken welfare system we have in place that ensures not only that low-income single mothers feel stigmatized and demoralized, but that they lack the supportive structure to even get to the middle class at all? While the Democratic Party is developing strategies and potential policies to support the middle class, it is neglecting those who are in need the most, and who are suffering the most as a result of President Bill Clinton’s signature legislation.

While the national party has not budged on welfare reform since President Bill Clinton signed the landmark legislation in 1996, there has been some state-based movement. Just this month, New Jersey lawmakers, led by Democrats, passed a repeal of the state’s family cap law, which was ultimately vetoed by Republican Gov. Chris Christie. California was more successful, though: The state recently repealed its Maximum Family Grant rule, which barred individuals on welfare from receiving additional aid when they had more children.

It’s time for the national Democratic Party to do the same. For starters, the 2016 platform should include a specific provision calling for an end to family cap laws and forced paternity identification. If the Democratic Party is going to be the party of reproductive freedom—demonstrated by its call to repeal both the federal Hyde and Helms amendments—that must include women who receive welfare assistance. But the Democrats should go even further: They must embrace and advance a comprehensive overhaul of our welfare system, reinstating the federal guarantee of financial support. The state-based patchwork welfare system must be replaced with a federal welfare assistance program, one that provides educational incentives as well as a base living wage.

Even President Bill Clinton and presumptive Democratic presidential nominee Hillary Clinton both acknowledge that the original welfare reform bill had serious issues. Today, this bill and its discriminatory legacy remain a progressive thorn in the side of the Democratic Party—but it doesn’t have to be. It’s time for the party to admit that welfare reform was a failure, and a discriminatory one at that. It’s time to move from punishment and stigma to support and dignity for low-income single mothers and for all people living in poverty. It’s time to end TANF.