As an attorney with the Bronx Defenders, Kara Wallis routinely attends permanency hearings, which occur when a foster youth is either being returned to their home, placed with adoptive parents, or beginning independent living. As part of these hearings, judges read a set of directives for the guardian overseeing custody, such as providing the youth with a passport or a driver’s license. For foster youth transitioning to independent living, these directives include things like job counseling.
“Never have I heard an order regarding reproductive rights, though,” Wallis said. She explains that some judges use a standard directive, and others might create their own. But in her experience, without exception, they lack an acknowledgment of contraception or reproductive health needs.
This issue is not confined to permanency hearings, but is rather illustrative of a wide systemic problem. For the roughly quarter-million girls in foster care in the United States, access to contraception is a matter of luck. Without clear oversight and regulations regarding their health-care needs, advocates for foster youth say they often struggle for basic care.
Statistics show that girls and young women in foster care are twice as likely as their peers outside of foster care to become pregnant. While rates of teen pregnancy are steadily declining across the board nationwide, the rate of teen pregnancy among foster youth continues to climb. One study conducted at the University of Chicago of over 700 young people from three states found that of the foster youth surveyed, almost 35 percent were pregnant by age 17 or 18, compared to roughly 15 percent of youth living outside of the system. And by 19, 46 percent of those youth had experienced a repeat pregnancy, compared to 34 percent for youth living outside of foster care who had already been pregnant once. Another study found that almost 50 percent of girls in foster care they surveyed became pregnant by 19. Research shows that unwanted pregnancies and births outnumber wanted pregnancies and births among foster teens. And while federal policies and legal precedent exist to protect the reproductive rights of foster youth, experts find that these often fall short of achieving their intended goal, instead creating loose guidelines that are seldom followed.
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One of the most consequential cases on the issue was heard in 1988, when the District Court of New York handed down a decision in Arneth v. Gross that cemented the rights of minors in foster care to obtain contraception. Plaintiffs in the case filed a suit against Mission of the Immaculate Virgin, a religiously affiliated foster home, for implementing policies that prohibited minors in its care from using contraception. At the time, the court designated foster youth as a certified class for the sake of litigation, and ruled that as such, requiring the Mission to provide contraception for them was not in violation of the Mission’s religious liberty.
Furthermore, foster youth are entitled to reproductive health-care insurance coverage—including contraception—under Medicaid. According to the National Center for Youth Law (NCYL), states must offer a program called “Early and Periodic Screening, Diagnostic and Treatment,” which specifies a package of benefits, including family planning services, for youth enrolled in Medicaid. Additionally, states are required to cover family planning services with no additional out-of-pocket cost under section 1396d(a)(4)(C) of the Medicaid Act.
But as senior NCYL attorney Rebecca Gudeman explained to Rewire, that doesn’t always translate into access, or the ability to use those services.
In much of the country, foster care is privatized, and the oversight of foster care programs is often handed over by the state to religious organizations like Catholic Charities or the United States Conference of Catholic Bishops; this includes both oversight of foster parents and direct implementation of policies, like running group homes. This means that federal regulations that are opaque at best are left up to interpretation, oftentimes from religious organizations with deep-seated opposition to contraception. Advocates believe this system can place “political and religious ideology” over the ability of foster youth to access adequate education about sex and pregnancy prevention, as Wallis wrote in her law review article, “No Access, No Choice: Foster Care Youth, Abortion, and State Removal of Children.” This, they say, puts youth at an especially high risk for unsafe sex and unintended pregnancy.
New York City, for example, contracts with more than 30 nonprofits to provide foster care, many of which are religiously affiliated. Despite a series of lawsuits in the 1980s and ’90s aimed at ensuring foster youth have access to contraceptive care, it took until 2014 for the city’s Administration for Children’s Services to implement a policy prohibiting agency staff from imposing their religious or moral objections on foster youth. At the time, however, little indication was given as to how this policy would be implemented.
Through her work at Bronx Defenders, which provides “criminal defense, family defense, civil legal services, social work support and advocacy to indigent people of the Bronx,” Wallis sees firsthand how these discrepancies in federal policy and state care play out.
Wallis explains that within a system that is already so depleted of resources, reproductive health care like contraception gets even further marginalized, especially when access is overseen by organizations or individuals who see it as elective or unnecessary. She also points out that while agencies should be affirmatively having conversations about reproductive health with foster youth, they often aren’t. This means foster youth who are living with unfamiliar people are put in a difficult, even impossible situation—self advocating for contraceptive care.
So, while Medicaid ensures that contraceptive care is covered monetarily, actual access is a different story. Everything—from getting to and from an appointment, to being able to safely discuss their contraception issues with an adult—becomes a challenge.
“The law is right,” she said. “But what does that look like?” She explains that the overburdened foster care system in New York City leaves foster youth struggling to get access. And the privatization of foster care in New York state means that foster care organizations are balancing a set of dual incentives: fiduciary—including the responsibilities the state or federal law requires, like providing youth with access to education about reproductive health—and how to abide by any of their religious beliefs. Wallis notes that while access to reproductive health care, including contraception, is fraught both in private and state-run foster care, religious organizations create an added element where foster parents and caseworkers are even more likely to harbor religious biases, and foster youth are going to be even more reticent to bring up issues like contraception knowing that.
Beyond that, she points out that private religious foster care agencies often hand-pick the doctors that they allow foster youth in their care to see—and it is not unlikely that these are doctors they know hold beliefs about reproductive health care that are in line with those of the organization, or that it is assumed foster parents have chosen these particular organizations based on their religious mission statement.
A lack of specificity in policy allows for negative judicial and organizational intervention as well.
“I get very concerned about the bench weighing in on reproductive access,” Wallis said. For example, although judges may not issue directives ordering parents to allow youth access to foster care, she says she has seen discussion of reproductive rights hinder a biological parent’s case. She says that depending on the caseworker, a biological parent discussing birth control with their teen can be deemed to be encouraging risky behavior, and can be used against the parent at any time during their case. Caseworkers act, in many cases, as a liaison between the family and the courts: making visits to the homes, and then reporting back with suggestions, usually to a family court judge. For example, if the state is deciding whether to remove a teen from their home, or if a teen is ready to return to their home, the caseworker assigned can argue that a parent’s discussion of contraception should count against them.
“This is where the difference between privatized and state-run foster care really comes into play,” she explained. Wallis says that while there are a number of barriers to accessing birth control in state-run foster care, like a lack of mandating affirmative conversations with foster youth, and the omission of reproductive health care from the directives in permanency hearings, it’s still possible to have a caseworker who is not hostile to reproductive health; who might, for example, look approvingly on a biological parent discussing birth control with their teen. But when it comes to foster care agencies with a religious mission, she said, “The chances of getting a caseworker from an agency with a religious mandate who is trained in conversations on reproductive health, or supportive of a biological parenting discussing birth control, may be less likely than if the youth were in state run care.”
Wallis points out that for many of these young people, the best outcome when it comes to accessing contraceptive care, and stability more generally, is to stay within their biological family whenever possible. Aside from religious restrictions, for many foster youth the lack of familiarity they have with foster families presents an especially crucial challenge when it comes to reproductive health care; removing them from their homes and relocating them has the potential to remove any connection they had with a trusted family or community member to whom they could go with these questions. And research backs this up—teens feel unsure or uncomfortable when it comes to talking about contraception, for a number of reasons including uncertainty about who can make those decisions for them.
The more nuanced issues of interpersonal relationships between foster youth and their placements present a unique set of challenges—one that a group of advocates in California is trying to ameliorate by pushing for policies.
In 2016, lawyers from NCYL and the law firm Keker, Van Nest & Peters filed a complaint against Promesa Behavioral Health, which operates group homes for foster youth in California, on behalf of the California Planned Parenthood Education Fund and three former foster youth. Their complaint outlined how Promesa “regularly searched the belongings of foster youth for contraceptives, such as condoms, and confiscated any contraceptives found.” It also stated that Promesa “forced foster youth to waive their right to confidential reproductive health care, required foster youth to sign an agreement that they would not engage in sexual activity, and punished them when they sought or received reproductive health services.” It’s worth noting that while Promesa had religious affiliations at its inception, it was not a religiously affiliated organization at the time of the complaint.
Gudeman said that when NCYL brought these issues to the attention of the state, it was immediately “responsive and collaborative.” As a result, the state of California, working with NYCL, implemented new policies that more explicitly outline the ways in which foster youth are entitled to contraceptive care and other reproductive health services, including a state plan to reduce unintended unwanted pregnancy, an all-county letter that details the sexual health rights of youth, and clear and direct guidelines for social workers and caregivers regarding their obligations under federal and state law. These directives include requirements that case managers provide youth with “age-appropriate, medically accurate information,” “ensure personal biases and/or religious beliefs are not imposed upon foster youth,” and that foster parents “facilitate access and transportation to reproductive and sexual health related services.”
“Their right to services is clear. What has been left unwritten historically, though, is exactly what child welfare agencies and foster parents are obligated to do to ensure youth are connected to the contraceptive and reproductive health services they want. That absence of policy allowed for explicit and implicit restrictions to flourish,” said Gudeman. She noted that the directives translated existing law “into clear and concrete guidelines,” meaning “child welfare agencies and foster caregivers now understand exactly what they must, may, and must not do.”
Beyond religious agencies, religious parents acting as individuals may serve to deliberately obstruct contraceptive care. But others are simply confused about how much they are allowed, or obliged, to do. About them, Gudeman said, “Many caregivers actually appreciate this clarity because it gives them permission to act where they may not have been sure they had permission to act before.” She hopes California becomes a model state with these policies: “Clear and concrete guidelines mean there is no room for grey or disparate application.”
Still, there is work to be done. Barbara Facher, a health-care social worker with the Alliance for Children’s Rights in California, which provides free legal services, advocacy, and support for foster youth, said in her experience, L.A. County, where she is based, has good policies. However, she notes, implementing these policies still requires work—”the devil’s in the details,” as she put it—and says the task at hand now is to partner with local agencies to ensure that these policies are becoming realities.
This is where California’s SB 245 comes into play. The law, which was passed earlier this year, goes beyond the policies arising from the Promesa case. It ensures foster youth receive “age-appropriate pregnancy prevention information” and mandates a curriculum for caseworkers and foster care providers that includes issues related to sexual and reproductive health. By mandating age-appropriate reproductive health information and requiring social workers to document how they are providing access to reproductive health care and pregnancy prevention, the law works to ensure the reproductive rights of foster youth are protected, not only in the abstract. The law also mandates training for judges, group home personnel, and foster family agencies in accordance with a statewide curriculum.
A spokesperson for the Alliance for Children’s Rights says that until SB 245 was implemented, laws existed that outlined foster youth’s rights, but it was unclear who was responsible for what. And although she said the penalties for refusing to obey the law are complex, minors who want contraception and can’t get it could reach out to organizations like the Alliance for support.
It is unclear whether efforts like these will be mirrored on the federal level, but the Alliance for Children’s Rights believes SB 245 is a good example of “the continued effort required in order to clarify the responsibility for connecting a young person in foster care to reproductive health services, including pregnancy prevention,” said the spokesperson. She points out that in order for it to be a success not only in theory but in practice, it needs to make “perfectly clear where the responsibility lies for supporting youth in enacting that right.”
Beyond that, its representatives believe in addressing the need for access to birth control holistically. This means concrete strategies and setting clear guidelines for caseworkers and foster parents about providing information about and access to contraceptives, while taking into consideration the many factors that make foster youth more likely to have unintended pregnancies, as well as other issues, like commercial exploitation, self-harm, relationship violence, and substance abuse. Laurie Rubiner, the president and CEO of the Alliance for Children’s Rights, says that young people who experience trauma, abuse, and neglect enter the foster care system with a unique set of vulnerabilities. She told Rewire that every aspect of their health care, including reproductive health care, needs to be addressed while considering this context. She notes that some foster youth may also look at getting pregnant as their chance to start a family of their own and would need support, and that the foster youth they work with also travel through an average of seven placements, which creates an instability that impedes their ability to foster trusted relationships.
“You can legislate a lot of things,” said Facher. But you can’t legislate trusted behavior. … We know that a lot of these kids are not having the right interventions and the right conversations. One of the reasons we always objected to minor consent or notification laws is not everyone has that relationship with a parent. With [foster youth] you take that and you magnify it tenfold.”