The Supreme Court heard oral arguments on the most consequential challenge to abortion rights in the United States in decades earlier this week, and it was Justice Amy Coney Barrett’s line of questioning on whether the procedure was necessary, given the ability women have to place a newborn child up for adoption, that received widespread attention.
Under consideration is the case Dobbs v. Jackson Women’s Health Organization, which is concentrated on a law enacted in Mississippi in 2018 that bans nearly all abortions after 15 weeks of pregnancy and poses a direct threat to Roe v. Wade.
The case could return the issue back to the states — further inflaming one of the most divisive cultural and political issues nationwide. More than 20 states are poised to prohibit abortion or impose major restrictions that would curtail access if the court moves to weaken or overturn the ruling.
When questioning Julie Rikelman, a lawyer for the Center for Reproductive Rights who is representing Jackson Women’s Health — the last operating abortion clinic in Mississippi — Barrett on Wednesday called attention to safe haven laws, which generally allow for a parent to remain anonymous and shield them from criminal liability when they give up their newborn child to designated locations.
She noted that all states have such laws enabling people to “terminate parental rights by relinquishing a child after abortion.” These measures, she said, appear to remove the “burdens of parenting” emphasized in Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 Supreme Court decision that affirmed the pivotal ruling.
“Insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy,” Barrett said. “Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly.”
Barrett acknowledged that there is “without question, an infringement on bodily autonomy,” but said, “it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”
“It seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion,” she said. “Why didn’t you address the safe haven laws and why don’t they matter?”
Rikelman responded by first addressing the fact that while some of those laws are new since Casey, “the idea that a woman could place a child up for adoption has, of course, been true since Roe, so it’s a consideration that the Court already had before it when it decided those cases and adhered to the viability line.”
“But, in addition, we don’t just focus on the burdens of parenting, and neither did Roe and Casey,” she said. “Instead, pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work.”
In Mississippi, she said, “those risks are alarmingly high.” Rikelman specified that it is 75 times more dangerous to give birth in the state than it is to have a pre-viability abortion, “and those risks are disproportionately threatening the lives of women of color.”
Barrett’s comments did not go unnoticed during the closely watched Supreme Court arguments on Wednesday, with many observers arguing Barrett dismissed the burdens of pregnancy and childbirth in her focus on adoption.
Amy Coney Barrett is turning to safe haven laws, which allow parents to surrender parental rights. She’s talking about “forced parenting” being something one can opt out of without reckoning with the violations of forced pregnancy or forced birth.— Irin Carmon (@irin) December 1, 2021
I am a control freak so I gave birth to 2 kids w/o an epidural. My 2nd's elbow got stuck and caused a 2nd degree laceration that required 6 stitches. I felt everything. the pain of labor/birth, the pain of being ripped, and the needle sowing me up. childbirth is a burden.— Christina M. Kinane (@thekinane) December 2, 2021
Justice Barrett suggested that forcing a woman to remain pregnant against her will is no big deal in light of so-called “safe haven” laws permitting mothers to abandon their newborns without adverse legal consequences. She seemed oblivious to the Sophie’s Choice that presents.— Laurence Tribe (@tribelaw) December 1, 2021
Exactly. Justice Barrett all but said that forced pregnancy is constitutionally acceptable as long as women don’t face jail time for giving up the babies they’re compelled to gestate. What a pathetically impoverished view of women’s liberty, equality, and dignity! https://t.co/Nl8PlnANUl— Laurence Tribe (@tribelaw) December 1, 2021
Listen to the exchange here:
This question from Amy Coney Barrett is basically game over for Roe. She says: Now that all 50 states have "safe haven" laws that let women relinquish parental rights after birth, the burdens of parenthood discussed in Roe and Casey are irrelevant, and the decisions are obsolete. pic.twitter.com/omyhGISVmN— Mark Joseph Stern (@mjs_DC) December 1, 2021
More from Barrett: "Actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that means out of the obligations of parenthood." She's adopting Mississippi's argument that the availability of adoption obviates the need for abortion. pic.twitter.com/p3DvkSTakA— Mark Joseph Stern (@mjs_DC) December 1, 2021