State abortion bans create new governmental obligations for children

Now that the Supreme Court has overturned Roe v. Wade, “trigger laws” and formerly stale abortion restrictions in numerous states are going into effect. This raises a new question: Do governments take on any legal obligations when, in the words of former Justice Blackmun in the 1992 Casey case, they “conscript[] women’s bodies” to act as surrogates for the state? In limited circumstances, the answer is clearly, yes.

Because Roe v. Wade protected a formal right to an abortion, for decades the issue of society’s affirmative responsibility for families has been overshadowed by the fiction that pregnancy and successful childrearing are exclusively the personal responsibility of individual women. This is despite the fact that socioeconomic conditions are the primary predictor of unwanted pregnancy, the majority of women obtaining abortions used contraception, while neonatal and early childhood conditions play a critical role as a “foundation for future learning, health and life success.”

Unfortunately, the same states that are most aggressively “pro-life” also perversely exacerbate demand for abortions by rejecting federal funding for family planning and forbidding sensible sex education. They then place resulting, unintended children in danger by denying them the resources necessary to thrive. Pointing out this hypocrisy, former longtime lawmaker Rep. Barney Frank (D-Mass.) declared decades ago that for “legislators who oppose abortion but also oppose child nutrition and day care[,] … life begins at conception and ends at birth.” 

In extreme cases, however, the government can be held constitutionally liable when its neglect harms children. With new abortion bans in place, sadly these cases will become more common. The Supreme Court just further limited the ability of the federal government to mitigate the unfolding climate crisis, which is already causing deadly heat waves that disproportionately impact Black mothers and the most vulnerable. Given this reality, the costs we owe future generations — to simply assure them the fair start in life that is the genesis of equal opportunity and democracy — are mounting. We pay those costs upfront, or we will suffer them in a democracy that continues to degrade around us. 

Under principles laid down in the 1989 Supreme Court case Deshaney v. Winnebago County Department of Social Services, states have a specific duty to protect its own wards from unreasonable risk of danger. For example, in 2015, a federal judge ruled that the Texas Department of Family and Protective Services (DFPS) violated the constitutional Due Process life and liberty rights of present and future children by holding them in unreasonably dangerous institutional settings that are overburdened, understaffed and mismanaged. Children in DFPS care have been exposed to horrifying levels of severe abuse and neglect with hundreds allegations in recent years, including court monitors revealing in March 2022 that staff at a DFPS facility were dealing Ecstasy and Xanax to kids in exchange for nude photos of the children that they then tried to sell online. Many other states face similar problems.

Given that Texas’ Senate Bill 8 banned most abortions in 2021, the approximately 30,000 of the abortions performed in Texas in 2018 would be illegal today. The number of abortions in recent years has been increasing in every region of the country. Many women who would have lawfully terminated a pregnancy will now give birth. Because of the rampant anti-Black and anti-male bias in adoption matching, and some states, such as Texas, granting the biological father a veto over adoption regardless of marital or cohabitation status, a significant proportion of women who are unable to or decline to raise an unplanned child will not find an appropriate adoptive family.

An unknown, but presumably considerable, number of these children will end up in state care. But, according to a January 2022 court report, in late-2021, each month Texas DFPS was accepting 312 children into its custody for which it lacked placement. How will states adequately care for the thousands of children that will be added these broken systems?

In a dramatic contrast, courts in a plurality of states ban recidivist, neglectful parents from further procreation until they are capable of caring for their existing children. Courts even issue preemptive no-custody orders, declaring parents unfit to have custody over future children for a given period of time. Yet, deadbeat, “pro-life” states are imprudently, forcibly creating children without assessing their institutional capacity to care for present or future charges. They are not preparing for an influx into foster care or funding childcare, prenatal health, early education or any of the numerous other programs that will be necessary to offer these most vulnerable members of society a fair start in life.

Even worse, they are not following the good example of Colorado, which makes long-acting contraceptives readily available, dramatically reducing unintended pregnancies in the first place.

Letting “pro-life” scofflaws off scot-free is inconsistent with responsibilities imposed on individuals in equivalent circumstances. Courts, including in Texas, have not had any difficulty recognizing that when a doctor’s misdiagnosis prevents a woman from learning of her fetus’ congenital defect, that doctor is the legal cause of the birth and financially liable for the resulting disabled child’s medical expenses. (Campbell v. United States in 1992 and Pressil v. Gibson in 2015). However, if a state imposes an abortion ban that outright forces a woman to give birth to a severely disabled child, as it stands she will not receive any compensation. Rather, in Texas, as in other states, if she surrenders the child to the state that forced her to birth it, she will be charged for the government’s cost for housing the child.

Some abortion opponents, such as the “whole life movement,” seek to care for fetal life by advocating for improved access to health care and other social support policies. But this is not the approach taken in Republican-controlled legislatures across the country. These states now risk creating a massive, permanent underclass. The addition of an unplanned child places enormous strain on a family and, without proper interventions, also on the wider community.

For instance, in California, 28 percent of all prison inmates had a history of an open child welfare case or foster care. According to the National Foster Youth Institute, “nationwide, 50 [percent] of the homeless population spent time in foster care.” When Roe v. Wade was the law of the land, enacting unenforceable abortion bans could score cheap political points. They now come with a steep cost for all of us.

The Supreme Court’s conclusion that “abortion is not a fundamental constitutional right” does not mean that actual abortion restrictions — as applied — are constitutional or that they satisfy the state’s moral and legal duties to families and future children. 

Unless states with abortion limitations invest in family planning, childcare, healthcare, education and systems capable of properly caring for unwanted children, abortion bans will result in states violating their “duty to protect.”

Regardless of whether abortion is legal or not, when a state usurps control of reproduction from women but neglects to adequately care for the resulting offspring, it acts illegitimately.

Carter Dillard is the author of “Justice as a Fair Start in Life” and chairman of the board of directors of Fair Start Movement, which seeks to ensure every child a “fair start” by incentivizing better family planning and smaller, more equitable families for all, thereby creating a more just and sustainable society.