COERCION, CRIMINALIZATION, AND CHILD 'PROTECTION': HOMELESS INDIVIDUALS' REPRODUCTIVE LIVES.

• Author: Lavender, Bridget

INTRODUCTION 1609 I. BACKGROUND 1613 A. Who Is Homeless? 1613 B. What Causes Homelessness? 1616 C. Reproductive Rights, Reproductive Justice, and Homeless Individuals 1621 II. A SYSTEM OF REPRODUCTIVE REGULATION 1624 A. Not Pregnant: Welfare and Reproductive Coercion 1625 1. Welfare and the Reproductive Control and Punishment of the Poor 1626 2. TANF and Control of Homeless Women's Reproduction 1629 a. Coerced Marriage & Partnership 1632 b. Coerced Non-Pregnancy 1635 B. Pregnant: The Criminalization of Pregnancy's Unique Impacts on the Homeless 1640 1. The Criminalization of Pregnancy 1640 2. The Criminalization of Homeless Pregnancies 1643 a. Increased Reliance on Public Hospitals and Welfare Benefits 1643 b. High Substance Abuse and Addiction Rates 1645 c. The Compounding Effects of the Criminalization of Homelessness and the Criminalization of Pregnancy 1647 C. Post-Birth: The Child Welfare System and Removal of Homeless Individuals' Children 1652 1. Increased Likelihood of Investigation 1654 a. Increased Reliance on Public Services 1655 b. Racial Discrimination in Reporting 1657 2. Losing Children to Foster Care 1658 a. The Neglect Standard 1659 b. The Reasonable Efforts Requirement and Funding System 1663 c. Strict Behavioral Requirements 1666 3. Termination of Parental Rights 1666 III. IMPLICATIONS 1668 A. Reproductive Justice and Homelessness 1669 B. Constitutional Concerns 1670 1. Increasing Family Abuse and Entrenching Child Poverty 1672 2. Deterring Prenatal Care, Imposing Economic Hardship, and Undermining Families 1674 3. Frustrating the Goals of the Child Welfare System 1676 CONCLUSION 1678 INTRODUCTION

Desiree Quesada struggled with homelessness on the streets of Los Angeles for five years before she became pregnant. (1) During her pregnancy, she was transient, sleeping in an RV parked on a side street, in a motel room, or in a shelter bed on Skid Row. Determined to provide for her child and promising herself that her child would never spend a night on the streets, she agreed to move into an apartment with her father before the baby was due. But, before she even had a chance to leave the hospital with her newborn son, the Department of Children and Family Services placed her child in foster care. Desiree has not seen her son since. "I never even got to take him home." (2)

Vivian Thorp, also from California, was a struggling single mother when she enrolled in the state's welfare-to-work program. (3) She and her family, which several years later included a fiance and a second and third daughter, lived in and out of homelessness, struggling to pay the bills and manage her fiance's mental illness. Things became worse when, under California's "Maximum Family Grant" rule, which denied cash assistance to any child born into a family already receiving assistance, (4) Vivian was unable to receive additional welfare benefits to support her two youngest children. Her welfare check remained at $520 a month, not enough for three children. (5) With seemingly no other option, Vivian took to stealing diapers and food to provide for her family. Over a decade later, Vivian says she is "still traumatized" and angry at laws that "deprive kids of basic things like food and clothing." (6)

Across the country, in Washington, D.C., Shakieta Smith had no place to go with her two children. (7) She called the local shelter hotline but was told all shelters were full and there were no beds available. The hotline worker added a "chilling warning": if Shakieta admitted that she and her children "had nowhere safe to sleep, she'd be reported to the city's Child and Family Services Agency for a possible investigation into abuse and neglect." (8) From then on, Shakieta lived in constant fear of Child Protective Services. She worried that her children would be taken while they were at school. "I was afraid that my kids would be taken from me just because I can't afford to live in D.C.," she said. "It's not like I'm abusive or none of that. I ran into a situation where I don't have no place to go." (9)

These vignettes, real stories of women struggling with homelessness, illustrate the unique challenges that individuals face in managing their reproductive lives when housing is unstable or nonexistent. Desiree's, Vivian's, and Shakieta's stories are by no means rare--a wealth of scholarship documents local, state, and national efforts to regulate individuals' reproductive autonomy. Yet while the impact of these regulations on low-income populations, particularly low-income women, is clearly documented, there is significantly less published on the ways homeless individuals' reproductive autonomy in particular is regulated. This population, while sharing significant similarities with those who are low income but stably housed, faces additional barriers and has unique burdens, making their lived experiences markedly different.

In Part I of this Comment, I give a background on homelessness in the United States, describing both the demographics of the homeless population and the main causes of homelessness. Next, I discuss the Supreme Court's reproductive rights jurisprudence. This framework is helpful for understanding infringements on these rights that homeless individuals face. Finally, I draw the distinction between the fight for reproductive rights and the Reproductive Justice movement, which reaches beyond the mere securing of rights and better helps us understand the lived experiences of homeless individuals and the barriers they face in making reproductive decisions.

In Part II, I examine in detail the multiple overlapping and mutually reinforcing constraints on reproductive autonomy faced by homeless individuals when considering becoming pregnant, while pregnant, and when raising their children. First, reliance on welfare and other public benefits subjects individuals to coercion into marriage and/or away from pregnancy. Such coercion is arguably a violation of their fundamental right to choose whether to marry or become a parent. (10) Second, the criminalization of pregnancy, a phenomenon affecting pregnant individuals across the nation, is of particular concern for homeless populations due to their increased contact with and surveillance by government agencies, their increased rates of substance abuse and addiction, and the compounding effects of laws that criminalize the life-sustaining activities of the homeless. Finally, after a homeless individual gives birth, their lack of housing makes them and their families more susceptible to the child-welfare system, where they may eventually lose their child. Thus, at each of these stages of their reproductive lives, homeless individuals are subject to governmental regulation in distinctive ways tied to their lack of secure housing.

In Part III, I discuss the implications of my Comment for the Reproductive Justice movement, and the importance of considering homeless individuals' lived experiences in the fight for reproductive autonomy. I then briefly discuss the constitutional implications of these impediments. Finally, I present evidence suggesting that the policies and practices I critique actually hinder child welfare goals and further entrench homelessness and poverty.

Although my analysis unpacks three stages of constraints on the reproductive autonomy of homeless individuals, it is important to note that not all homeless individuals with the capacity to become pregnant experience each constraint. Some never become pregnant. Others may voluntarily terminate their pregnancy or involuntarily lose it. Those who give birth are often the most susceptible to being coerced into long-acting contraceptives, either by physicians or the threat of losing needed welfare benefits. The stages are fluid, and it is possible for an individual to simultaneously face multiple sets of the constraints I discuss.

My analysis of the various ways the fundamental right of a homeless individual to decide "whether to bear or beget a child" (11) contributes to discourses in the field of Reproductive Justice by focusing on an often-overlooked population--the homeless--and considering their lived experiences. Homeless individuals occupy the extreme end of poverty, while also disproportionately occupying other marginalized identities. For example, they are more likely to be Black, (12) LGBTQ+, (13) and disabled. (14) Their lives and bodies are systematically monitored, devalued, and regulated, with particular attention paid to their ability to procreate.

A note about the language used in this Comment. Many of the phenomena I discuss reflect the long history of state control over female bodies and reproduction, and the gendered nature of reproductive regulations. And many of the sources upon which I rely discuss these phenomena specifically in gendered terms, using the terms "woman" and "women." Because of this, I sometimes use those terms to reflect the gendered nature of the regulations and the specific sources cited. But this language is not fully representative of the range of gender identities affected by the regulations discussed. Not everyone who has the capacity to become pregnant is a woman, and it is important that the language in this space reflects that and does not erase the experiences of trans, nonbinary, and other LGBTQ+ people who have the capacity to become pregnant but who are not women. (15) To this end, I use gender-neutral language in this piece as a default to fully and accurately describe the phenomena I write about without assuming an individual's gender identity.

1. BACKGROUND

   This Comment focuses specifically on the impact of the law on homeless individuals' reproductive autonomy. I begin with an overview of the current problem of homelessness in the United States. I then introduce the concepts of reproductive rights and Reproductive Justice, and how these frameworks can help us to understand the lived experiences of the homeless.

   1. Who Is Homeless?

      Homelessness is...