Response to ACLU in re: HB 2810 and SB 6496
February 2, 1998
Washington State House of Representatives
Washington State Senate
Olympia, WA 98504
Dear Senators and Representatives,
We are writing in response to the ACLU of Washington’s letter dated February 2nd, 1998, in which they state their opposition to HB 2810 and SB 6496, which would give adult adoptees access to their original birth certificates. It is apparent from their letter that the ACLU of Washington is misinformed about the history of Washington State Adoption law, recent case law concerning open records, and the effects of open records on the rates of abortion and/or adoption. The purpose of this letter is to provide clarification of those issues for the ACLU of Washington and for other interested parties.
Washington State had open records until 1943, when they were sealed to protect the adoptee from the stigma of “illegitimacy.” Original birth certificates have never been sealed to protect birth parent confidentiality, as evidenced by the fact that adoption records remain open until and unless the adoption is finalized and the fact that the petitioner must publish newspaper notices with the birth parent’s name prior to such finalization. In 1990, the legislature passed the Confidential Intermediary law which opened adoption records to confidential intermediaries for the purposes of fostering reunions between birth parents and adult adoptees. In 1993, the legislature prospectively opened birth records to adult adoptees but took no action regarding earlier adoptions. The ACLU of Washington’s letter failed to note this historical background, incorrectly stating that the records were opened to adult adoptees in 1990, and incorrectly implying that the records were sealed to protect birth parent confidentiality.
The ACLU of Washington’s letter also mentions the recent Tennessee lawsuit Doe V. Sundquist, but fails to disclose that the plaintiffs lost that case in each in every venue including the United States Supreme Court, which refused to hear the case in October of 1997. The Court dismissed the claims that opening records violated a birthparent’s right to privacy or that they violated any implied contracts of confidentiality, and stated definitively that “State adoption procedures have never promised total confidentiality to birth parents. This fact is reflected by the absence of references to confidentiality in the forms that birth mothers signed under the former statutory scheme to surrender their parental rights.” (1997 FED App. 0051P (6th Cir))
Finally, the ACLU of Washington claims that opening records to adult adoptees might raise the abortion rate while reducing the adoption rate but fails to quote any evidence to support this assertion. The fact is that the national abortion rate of 25.8 abortions per thousand female residents between the ages of 15 and 44 is over twice that of Kansas, an open records state which has a rate of 12.7 and is surrounded by closed records states which have rates of 21.9 for Colorado, 17.0 for Missouri, and 13.9 for Nebraska. Additionally, data compiled by the Alan Guttmacher Institute shows that abortions and abortion rates in England and Wales decreased in 1974 through 1976, when the opening of adoption records was discussed in Parliament and put into effect, even though the same data indicates a consistent increase in those rates for all other years between 1961 and 1987. As for adoptions, there were 31.2 adoptions per thousand live births across the nation in 1992 but 48.4 in the open records state of Kansas, and lower rates of 26 in Colorado; 27.5 in Missouri, and 42.4 in Nebraska, all sealed records states.
Jerry Sheehan of ACLU-W acknowledges that they have no data to support their claim that opening records will raise the abortion rate, and acknowledges the fact that case law does not support the ACLU’s position. Mr. Sheehan instead claims that the ACLU-W is arguing that while a birthparent may not have a legal right to confidentiality, they have a natural right to demand that the original birth certificate be withheld from the adult adoptee. This flies in the face of a “rights of the adopted person” policy adopted by the ACLU National Chapter in 1987 which states that:
“…… the ACLU believes that laws suppressing information about adoptees and/or their birthparents, and laws allowing access to such information only upon consent or registration, or laws allowing access to such information only upon court order, deny adopted persons, their birthparents, and their relatives the equal protection of the laws and constitutes unwarranted interference by the government with the right of people to choose whether to associate.”
We believe that this position is in accord with the National ACLU’s stated goals of furthering the right of freedom of assembly, equal protection under the law, and freedom from governmental interference in one’s personal matters – all of which we believe to be furthered by a shift towards open records. Therefore, we are surprised to be facing opposition from the ACLU of Washington, whose website states that they “…staunchly support every person’s right to make personal decisions – without government interference – about religion, abortion, marriage, and other family and lifestyle matters.” Open `98 disagrees with ACLU-W that a birth certificate is a confidential record whose contents belong solely to the parents listed on it, and instead agrees with the Sixth Circuit Court of Appeals, which stated that:
“we note our skepticism that information concerning a birth might be protected from disclosure by the Constitution. A birth is simultaneously an intimate occasion and a public event–the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth.”
(1997 FED App. 0051P (6th Cir))
Washington State Open ’98
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425-883-7293Response to ACLU in re: HB 2810 and SB 6496
