The Children Be Damned . . .

There was widespread and well-deserved derision when a photo circulated of Vice President Mike Pence with dozens of Republican men from the far right “Freedom Caucus” at the White House last week as they discussed elimination of the ten essential (as in mandatory) health benefits for insurance plans under the Affordable Care Act. Why? Because one of the ten essential benefits is maternity care. It would have taken only one mother in that room to ridicule these men engineering a return to the good old days when maternity coverage was not always included in coverage and a woman could be denied maternity coverage after she became pregnant because it was a “pre-existing condition.”

Yet women are not the only population seriously threatened in this picture. Children are especially at risk, because both maternity, as in pre-birth care, “newborn care” and “pediatric services, including oral and vision care” are essential health benefits as well. The child-related care that would no longer be mandated includes: “Care provided to infants and children, including well-child visits and recommended vaccines and immunizations. Dental and vision care must be offered to children younger than 19. This includes two routine dental exams, an eye exam and corrective lenses each year.” Without this coverage, parents would be able to choose to save money while endangering public health and their children. For example, they could fail to vaccinate their children. That means more children would be at risk of deadly diseases and there would result a further erosion of herd immunity, which protects all of us. Or, without coverage, they could fail to get their children’s eyesight tested; poor eyesight has a direct effect on a child’s success in school, which in turn affects our country’s future success.

You don’t need this photo or backdrop, however, to know that the Freedom Caucus—and actually many Republicans in the era of religiously-fueled conservatism—have put unborn children ahead of the needs of the living. This meeting of conservative lawmakers that contemplated eliminating pediatric and newborn care from mandated coverage is one aspect of the ill wind that has blown over children’s thriving with the election of Donald Trump.

Just as dangerous to children is the continuation of the movement for extreme religious liberty. For example, President Trump’s leaked draft executive order—if signed–would imperil children, as I discuss here. When Hillary Clinton looked like the surefire next president, some right-wing advocacy groups that had lost the culture wars over gay marriage were licking their wounds and a few, in a moment of humility, were even considering a retreat from the public square. It appeared as though their political involvement since the entry of Jerry Falwell’s Moral Majority in 1979 had led to one spectacular defeat after another—Roe v. Wade persisted even with 5 male, pro-life Catholic Supreme Court justices and the legalization and acceptance of same-sex marriage and LGBTQ in general was unstoppable despite the expenditure of millions. Those in the child protection community hoped it would mark the end of the religious liberty statutes that have caused collateral damage to children.

But Trump’s victory reinvigorated the drive of religious conservatives. Obergefell be damned, they would persist in lobbying to obtain a legal regime in which they could force the LGBTQ families and individuals out of their spheres. They have fervently wished to be able to persist in their “mission” work while marginalizing LGBTQ families and children. While the Trump draft executive order that would make conservative Christianity the religion of the federal government is not law yet, the states are under siege from religious lobbyists demanding a right to only serve those children and families who reflect what they believe—all the while using the state’s money to push these children out of the way.

The Wave of Child-Endangering Bills Washing Up on the Steps of Some State Capitols

The headlines for the Indiana Religious Freedom Restoration Act (RFRA) were all about discrimination against LGBTQ. With the pressure of major corporations like Salesforce and Apple, the Indiana RFRA was amended to remove its threat to LGBTQ—but only in the marketplace of goods and services. Of course, like every other RFRA, Indiana’s was not targeted at LGBTQ discrimination but also put the vulnerable at risk in many scenarios, including children. Typically, the RFRA apologists assert that children aren’t endangered by the one-size-fits-all RFRAs because the government always has a “compelling interest” and, therefore, always wins. This is a misrepresentation of how the RFRA distorts the law by forcing the government to prove that its law is the “least restrictive means” of regulating this believer.

In fact, RFRA has been frequently invoked to protect adults from accountability for harming children. The Indiana RFRA case that made headlines involved a child beaten repeatedly with a hanger by his mother, leaving 36 ugly bruises. The photos are horrific. She invoked the Indiana RFRA to avoid prosecution and punishment. Despite the severity of the child’s injuries, she received nothing more than a parenting class and probation. In another case, the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) were charged by the federal government with violation of the child labor laws. Their response was to invoke the federal RFRA for the proposition that they did not even have to explain their beliefs to the judge. They won.

Slightly fewer than half of the states have these Pandora’s box RFRAs so it is difficult to understand what other laws religious believers need to put children at risk. But the Trump era has fueled a push in the states for religious “accommodation” in arenas that are child-specific, e.g., in the context of foster care and adoption services.

What Happened to the Best Interest of the Child?

The standard that governs child custody is whether the placement is in the “best interest of the child,” with the idea that the focus needs to be on the child and her needs—as opposed to the parents. The best interest of the child would not be a bad standard to adopt for public policy. The wave of new extreme religious liberty bills in the states, though, don’t even pass the “interest of the child” standard.

The new bills give religious organizations that perform social services the power to reject same-sex couples, their children, and LGBTQ children. South Dakota is leading the way down this ugly path, with Alabama close behind. The South Dakota law permits child-placing agencies to refuse services based on faith. In other words, if a gay child needs foster placement, a faith-based organization that views being LGBTQ as sinful and that receives state funds can flat-out refuse without consequence. The heart of the law is a laundry list of all of the monetary privileges that cannot be disturbed if the organization refuses to place a child based on faith. These bills are at their heart simple rent-seeking behavior. Here are all of the rents that the South Dakota bill protects from being affected even if the organization refuses to perform its state-paid services for select children or families. The state is prohibited from:

(1) Altering in any way the tax treatment of, or causing any tax, penalty, or payment to be assessed against, or denying, delaying, revoking, or otherwise making unavailable an exemption from taxation; (2) Disallowing, denying, or otherwise making unavailable a deduction for state tax purposes of any charitable contribution made to an organization; (3) Denying an application for, refusing to renew, or canceling any benefit from a state benefit program or other funding; (4) Declining to enter into, refusing to renew, or canceling a contract; (5) Declining to issue, refusing to renew, or canceling a license; (6) Imposing, levying, or assessing a monetary fine, fee, penalty, damages, award, or injunction; (7) Taking any enforcement action; (8) Discriminating against an organization in regard to participation in a state benefit program; (9) Limiting the ability of a person to engage in child-placement services; or (10) Taking any action that materially alters the terms or conditions of funding or a contract or license.

Ordinarily, an organization participating in a state’s foster care system (and therefore receiving state aid) must operate in a religiously neutral manner, so that the ends of the state are served, e.g., the maximum placement of children in safe and appropriate foster care homes. The same goes for organizations who facilitate adoption. Although the bills are often drafted so that any belief can permit a refusal to place a child, the lobbying in this era is all about opposition to same-sex marriage, and the “need” of religious believers to keep same-sex couples, their children, and gay children from entering their sphere. Why? Because these are sinners, but they are special sinners because their sins relate to being gay, and the “need” to avoid involvement with LGBTQ is paramount. If a gay child needs foster care, Catholic Charities could and apparently would refuse to process him through their operation. In other words, the avenues to a safe and secure foster home for this child have been significantly reduced, while religious organizations continue to be influential as social service providers with the state’s money. Texas is considering similar legislation.

This scenario of bracketing social services such that LGBTQ are excluded from receiving social services is also at play in the adoption context, where states like Massachusetts and California have denied state funds for those who refuse to serve couples or individuals based on sexual orientation or gender identity, but other states like Alabama have passed a religious exemption for faith-based organizations to be able to refuse adoptions to gay couples. The latter is questionable in light of the Supreme Court’s Obergefell decision, which Trump could effectively vacate if he were to obtain one more Supreme Court appointment. Most have focused on how the adoption denial impacts gay couples, but the threat to children in need of loving homes is also elevated, because the pathways to adoption are narrowed.

The good news for children is that Virginia’s Governor vetoed the extremely broad bill that would have immunized all religious organizations, their employees and volunteers, and agencies from any negative consequences for refusing to act or provide services based on their beliefs involving marriage. This bill did not stop at foster care and adoption but also would have permitted soup kitchens, homeless shelters, and hospitals to deny food, shelter, and care to same-sex couples and their children, and even to a gay child simply because she is gay.

Children rarely get a seat at the policy table, but they desperately need one when shelter, a home, and their health is at stake. They did not have a seat at the table at the White House during the Affordable Care Act discussions. Rather, they were invisible. When religious exemptions are seriously considered that would keep children in need from having a home, they have run off the rails. If religious organizations cannot deliver the services for which they are being funded to all state citizens in need, their funds should be frozen and their contracts cancelled. Let other organizations that will operate in the best interest of each child organically grow into this service by transferring the state funds from the organization that will not deliver the service to one that will. Here is a radical concept: make children the centerpiece of child welfare, protection, and placement laws.

Creating a culture that works for the best interest of all children will take a cultural earthquake. It couldn’t happen too soon.