Challenging Handmaid’s Tale jurisprudence in child welfare

Courts in New York, Texas, Arizona and at least 11 other states demand that fathers control the mothers of their children, punish fathers who don’t and, worst of all, deprive children of loving parents who have done them no harm. New York’s highest court is being asked to put a stop to it.

See also the press release about the litigation from Pregnancy Justice

A New York City mother, known in court papers as Ms. W., used drugs during her pregnancy.  When Ms. W. gave birth, the newborn tested positive for methadone – which had been prescribed to Ms. W. to control her addiction.  But New York City’s family police agency, the Administration for Children’s Services, charged her with neglect. 

The agency didn’t stop there. They also charged the father, known in court papers as Mr. B., with neglect – because ACS said, he didn’t do enough to stop Ms. W. from using drugs. The family court (New York’s term for what other states sometimes call “juvenile court,”) agreed.  So did a mid-level appeals court.  

Now Mr. B’s lawyers, The Bronx Defenders, the Family Justice Law Center and the New York University School of Law Family Defense Clinic, are asking New York’s highest court, the Court of Appeals, to take up the case and overturn the lower courts.  Forty-four organizations and scholars have joined amicus briefs in support of Mr. B.

The Court of Appeals has never heard the issue, even though bad decisions like this are fairly common in New York. To what may be a greater degree than any other state, New York courts have deemed fathers neglectful for failing to stop a pregnant partner’s drug use, or not knowing about a pregnant partner’s drug abuse when they supposedly should have. The neglect finding can lead to anything from constant, onerous surveillance of the family to confiscating newborns at birth and depriving them of the chance to live with either parent.  

Texas and Arizona also do this often. As Pregnancy Justice explains in a comprehensive report on the practice, in those states, a father’s failure to control his pregnant partner has led directly to the child losing the chance to be with either parent forever – it’s grounds for termination of parental rights, though in Texas language on page 750 of this 2022 State Supreme Court decision may have improved things a little. Similar decisions have been handed down in at least 11 other states. 

The problems are legion: 

● For starters, the whole scheme is based on the assumption that using drugs during pregnancy automatically makes you an unfit parent, or that using drugs, period, inherently makes you a danger to your child.  Sometimes that’s true; often it’s not.  Just ask the “cannamoms” of Massachusetts - or the children raised by Betty Ford. 

As Pregnancy Justice explains: 

[K]nowing that someone uses drugs tells us nothing about that person’s ability to parent. That is even more true where the allegation is mere use—not an allegation of excess or the loss of control—or that a person did not stop the other parent from using drugs during pregnancy. 

(Just guessing here, but had Betty Ford been an alcoholic and addicted to prescription opioids while pregnant (which, in fact, she was later in her children’s lives) child protective services probably wouldn’t have taken any children from her husband.) 

● This line of decisions is, in effect, a judge-made backdoor fetal personhood law – something there’s no way the New York State Legislature would enact overtly.  The decisions are based on the concept that the fetus was neglected by the mother, and the father is guilty of neglect for not preventing the mother from neglecting the fetus.  

● Then there’s the whole “Handmaid’s Tale” vibe -- the idea that women are mere vessels for reproduction who are to be under the strict control of men. If anything these decisions go farther – depriving children of their mothers and their fathers if the fathers exercise insufficient control over their partners’ pregnancies. 

In fact, the control the government demands can predate conception.  Mr. B was found neglectful in part because, the lower court said, he was aware his partner was using drugs at the time they were “planning to conceive.” 

● The decisions don’t explain how much control is enough. Is simply providing help sufficient? Apparently not, since Mr. B. repeatedly provided help and support when Ms. W. went into treatment. So what are the men supposed to do? Lock the women up in their homes? Pregnancy Justice cites the father in a California case who said: 

“How am I supposed to force her to stop? I have been supportive and sent her to get help. I don’t own her; she is not a pet. I cannot force her. Even if I was married to her, I could not force her to stop using drugs.” 

The extremism reflected in these decisions can be seen in these examples, cited by Pregnancy Justice: 

From New York: 

“The petitioner established by a preponderance of the evidence that the father neglected the subject child. Despite his knowledge that the mother continued to abuse marijuana during her pregnancy, he failed to exercise a minimum degree of care to protect the child.”

From Texas: 

In [one case] the father’s legal bond with his child was terminated even though he did not use drugs or have a history of use, completed recommended services and regular visits, provided diapers and toys for the child, and had a suitable home, but only because he knew the mother used drugs during the pregnancy and “failed” to prevent her from doing so. 

From Arizona:

In one case, the father originally lost his parental rights for failing to stop the mother’s drug use during pregnancy, when he did not know the mother was pregnant, did not have a relationship with her, and did not know he was going to become a father until after the birth. 

In another case, the court, lacking direct evidence of the mother’s substance use, inferred her continued substance use and used that as a basis to find the father had an “inability to discern [her] use” and to terminate the parent-child bond. In other words, the court terminated the father’s rights and created a legal orphan because the father failed to observe something the state could not prove existed. 

In another case, both parents’ rights were terminated based on the mother’s legal medical cannabis use. 

There is one drug for which we are aware of no similar cases: We know of no children ever having their right to be raised by their father terminated because the father did not stop his pregnant partner from smoking cigarettes. But hey, if courts started doing that, it could affect, you know, people like us. 

But the worst harm is that inflicted on children – forced at best to endure needless harassment and surveillance by family police agencies, at worst denied the chance to live with their own loving fathers and instead consigned to the chaos of foster care. 

That brings us to what may be the most perverse part of this whole scheme of judge-made law, something discussed in an amicus brief filed by Children’s Rights and the Columbia Law School Family Defense Clinic. The brief explains how these lower court decisions create incentives that push prospective fathers away from their partners. (The quotes  below omit citations): 

Prospective fathers should be able to be involved during a pregnancy without being legally required to infringe on their partners’ bodily autonomy or fear that their involvement will lead to a charge of neglect. The lower court’s decision punished Mr. B because of his involvement during the mother’s pregnancy, despite Mr. B’s efforts to support Ms. W. in her attempts to become sober. … 

Had Mr. B not been involved and not provided support, he would have been under no burden to take steps to prevent Ms. W’s drug use. Instead, the lower court’s decision—and similar precedents—punishes prospective fathers for their involvement during a pregnancy and thus disincentives fathers from becoming involved during the crucial prenatal stage of development. … 

[U]nder the line of precedents at issue in this case, the more a father is involved with and supportive of his pregnant partner, the more likely it is that a family court will later deem him neglectful and take his baby from him … This creates a perverse incentive: if a father lives with or supports his pregnant partner, he risks being labeled neglectful; if he disengages, he avoids such a finding—even if that disengagement deprives the mother of essential support. 

The New York State Court of Appeals should take this opportunity to reverse this line of decisions.  Courts in Texas, Arizona and at least 11 other states should be reconsidering as well.