HIGH STAKES, SILENT SYSTEMS: Part two of The Imprint’s investigation finds some child welfare policies at odds with minors’ rights to abortion and birth control. Read part one of the series here, and part three here.
The privacy and reproductive rights of foster youth across the country are often overlooked, overruled or mired in confusion: Under some state child welfare policies, teenagers living in group homes can have their birth control pills confiscated. Abortions that are legally available to all minors can require a state commissioner’s permission for young people in foster care. And in at least one part of the country, foster parents must submit “Critical Incident Reports” on “active sexual behavior.”
In states from Maine to Alaska, child welfare agencies require medical authorizations that advocates say are at odds with broader rights guaranteed to all minors, an Imprint investigation has found. The result could be restricted access to contraception, abortion and confidentiality in medical care.
“For the state to cause a young person to have fewer rights, be subject to restrictions upon their reproductive health care or face barriers to accessing services which their peers who are not in foster care do not is illogical, hypocritical and contrary to the stated goals of the child welfare system,” said attorney Leslie Heimov, a leading voice on reproductive rights for foster youth nationwide.
Heimov, whose firm represents tens of thousands of California foster youth, reviewed a sample of states’ policies at the Imprint’s request. “The system which is charged with nurturing and supporting youth is instead interfering with their reproductive health, compounding inequities and limiting their opportunities.”
In part one of its investigative series “High Stakes, Silent Systems,” published last week, The Imprint revealed that dozens of states’ child welfare policy manuals include little or no discussion of healthy relationships and sex education, and fail to detail foster youths’ rights to reproductive health care. The stakes are high for the roughly 100,000 foster youth nationwide ages 12 through 18. Compared with the general population, these young people are at higher risk of poor health outcomes, sexual abuse and frayed relationships.
The Imprint’s analysis, which involved a review of all 50 states, also revealed conflicting standards in some states’ written policies governing the lives of foster youth when it comes to reproductive health care.
New Jersey state law, for example, provides a broad guarantee to contraceptive access for anyone of “child-bearing age.” Yet according to local licensing regulations, a teenager in foster care placed in a group facility can only keep birth control pills among their personal possessions if facility staff decide she “is capable of self-administration,” and “documents the rationale.”
“The language seems to be ambiguous enough that even if the intention was not to create a barrier to access birth control, there is some potential for it to be used that way,” said Svetlana Shpiegel, an associate professor in social work and child advocacy at Montclair State University in New Jersey.
“The system which is charged with nurturing and supporting youth is instead interfering with their reproductive health, compounding inequities and limiting their opportunities.”— Leslie Heimov, Executive Director of the Children’s Law Center of California
The state’s Department of Children and Families did not reply to weeks of email and phone call requests for comment.
In Alaska, the highest court has ruled that requiring parental consent or a judge’s permission for pregnant minors seeking abortion violates the state’s constitution. That 2016 ruling applies to all youth, including those in foster care, said Susan Orlansky, former head of the American Civil Liberties Union’s Alaska chapter, co-counsel for the plaintiffs.
Yet the Child Protection Services Policy Manual, updated last May by the Alaska Office of Children’s Services, states that, for a young person in foster care seeking an abortion, a “physician is required to notify the parents, legal guardian, or custodian unless the court has ordered that notification is not required.”
“That’s just wrong,” Orlansky said. “The department is either blatantly not following the law, or nobody bothered to edit these documents to bring it up to date with the law.”
Orlansky added that policy language for contraceptives — specifically, describing consent rights only for those age 17 — also appeared to mischaracterize state law that allows minors of all ages to obtain birth control without parents’ involvement.
Alaska is one of several states that responded to The Imprint’s inquiries by stating that it would soon change its rules.
In response to early April inquiries, a spokesperson for the Alaska Office of Children’s Services said its published policy was inaccurate and would be updated “as soon as possible.”
“Upon receipt of your inquiry, we researched our policy and noted that the wrong information was included in the last policy update in May 2022,” said an emailed statement.
As of May 17, the policy had not been updated.
Across the continent in Maine, minors may receive “information and counseling” from a doctor, nurse, psychologist or social worker in order to consent to an abortion without a parent’s permission, according to state law.
Yet Maine foster youth need authorization from the governor-appointed commissioner of the state child welfare agency, according to the Office of Child and Family Services’ “Decision Making and Service Authorization” policy.
In a late April email, a spokesperson for the Office of Child and Family Services said there was no discrepancy with state law, noting that the additional authorization step for foster youth involved “situations where the requirements of the statute cannot be satisfied by the minor alone.”
An advocate for foster youth decried that response.
“Why? Because when there is no policy, or when the policy is somewhat vague, general or gray, it leaves room for bad practices to flourish,” said Rebecca Gudeman, senior director of health at the National Center for Youth Law. “Anytime a policy can be read in a way that might limit access to critical health care, it is likely that it will be read that way by some.”
Gudeman’s nonprofit firm has championed reproductive rights in foster care in California and other states through litigation and youth organizing campaigns, efforts that have contributed to significant policy changes. From her perspective, “if the state of Maine believes that some youth are able to consent to abortion on their own behalf, the policy should make that clear.”
On May 11, the spokesperson in Maine updated her response, stating that the rules had been placed under review, “as part of routine reviews and updates to all Office of Child and Family Services (OCFS) policies to ensure best practices.”
The extent to which state policies governing reproductive health care are closely followed is unclear, and young people can and often do get the help they need, regardless of what child welfare manuals may or may not say. Local advocates, foster parents and former foster youth in states such as New Jersey and Alaska said policies — even those that are overly restrictive — are not necessarily always enforced.
“I’ve taken youth to access reproductive health-related services, without the agency ever knowing,” said one former foster youth in Alaska, who noted that access in rural communities may be far more limited. They requested anonymity in order to protect the privacy of young people they’ve assisted. “It’s really hit or miss, because it’s become a really strong values issue — values of caseworkers or groups home staff, and the best interest of this young person.”
But many of the dozens of child welfare experts, health professionals, advocates and young people interviewed for this series agreed that, at a minimum, such policies exemplify the lack of attention that sexual and reproductive health issues have received from foster care systems — despite the high stakes involved.
“Ambiguity is good when you need the flexibility to be creative. But with this stuff, we don’t want you to be creative,” said Stacy Johnson, a Pennsylvania-based former foster youth and advocate. “It is inexcusable to me because these issues are not new. Who suffers? The youth. It’s more trauma they aren’t given services to deal with.”
“When there is no policy, or when the policy is somewhat vague, general or gray, it leaves room for bad practices to flourish.”— Rebecca Gudeman, senior director of health at the National Center for Youth Law
While only 4% of foster youth are removed from home due to documented sexual abuse allegations, state and national studies have found they report far higher rates of troubled personal relationships, sexual coercion and intimate partner violence, before and during their time in foster care.
Yet, in many states, child welfare agencies zero-in on “problematic,” “deviant,” “sexually reactive, sexually stylized,” or “promiscuous” behaviors – despite lacking requirements that foster youth receive education about healthy sexual development and relationships.
Wyoming’s Department of Family Services’ policy, for example, requires all foster parents to report verbally and in writing any “Active sexual behavior by the foster child” — by 5 p.m. the next day.
Clint Hanes, a department spokesperson, explained the policy applies to youth up to age 18. “Notifying the worker of sexual behavior provides the worker with an opportunity to provide a timely assessment of the situation and to ensure any needs are quickly identified and met, for the foster child, other children in the home, and the foster parents,” he said.
Gudeman, who is co-authoring a forthcoming book on minors’ consent and confidentiality rights in all 50 states, said this type of policy could lead to more harm than protection.
“If we want to guarantee that youth refuse to communicate with their foster caregivers about their health needs or anything happening with them romantically or sexually, just about the best way to make sure they clam up is by requiring foster parents to report everything, even where it does not rise to the level of concern,” she said. “It means that the truly abusive situations that might otherwise get disclosed will never come to light because youth learn quickly when to stay quiet.”
The Imprint found other questionable examples.
Delaware’s child welfare policy manual states that minors 12 and older can give written consent for a broad array of health care procedures, including medical and surgical care such as X-rays, birth control and diagnostic procedures. Abortion is described as one exception: “a minor 12 years of age or over who professes to be either pregnant or afflicted with contagious, infectious, or communicable diseases or who professes to be exposed to the chance of becoming pregnant may give written consent, except for abortion.”
Yet under Delaware state law, all minors ages 16 and 17 can consent to an abortion without parental involvement, or at any age with a judge’s permission.
A spokesperson for the Delaware Department of Services for Children, Youth and their Families confirmed the policy is current. She noted that Delaware’s “laws for medical consent and abortion cover all youth,” and that her agency did not “see the need to single out youth in foster care” with further guidance.
For Constance Iannetta, who cycled through foster homes and restrictive group facilities during her adolescence, policies that treat foster youth differently from other young people are no surprise.
“We all lost any sense of privacy or confidentiality in foster care,” she said, speaking on behalf of herself and her peers after reviewing a sample of policies from around the country.
Iannetta, founder and head of the national advocacy group FosterStrong noted the injustice. “These are basic human rights, and the fact that we have it like this in a policy or manual, it’s really horrible, it’s disheartening.”