Abortion Law Blog Essay

A Response to Justice Amy Coney Barrett

During oral argument in Dobbs v. Jackson, the Supreme Court case challenging Mississippi’s attempt to prohibit pre-viability abortions, Justice Coney Barrett called the attention of counsel arguing against the Mississippi ban to so-called Safe Haven laws. Here are relevant excerpts from the Dobbs argument transcript:

I have a question about the safe haven laws. So Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child . . . and I think the shortest period might have been 48 hours if I’m remembering the data correctly.  . . .  [I]nsofar 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.  Why don’t the safe haven laws take care of that problem? 

Safe Haven laws, which do exist in some form in each of the United States, are designed to permit people in emergency situations to leave infants in designated places (e.g., hospitals or firehouses) with some assurance of protection from prosecution or civil sanctions as a result of the infant’s abandonment.  Drawing on my research as a family law scholar and my experience as a person who has conceived, given birth, and nurtured a child, I have tried to consider carefully the Justice’s suggestion that Safe Haven laws would lessen hardships thought to be associated with restricting a pregnant persons’ right to choose abortion. In doing so, I bear in mind that restrictions on the right of abortion choice could presage additional restrictions of what we now understand to be established rights of personal and family liberty or autonomy. 

I have thought for a long time about rights of personal and family liberty and autonomy.  In 1997, I wrote that the Supreme Court’s rationales for recognizing those rights were incomplete and unconvincing.  I took as granted that a healthy measure of choice in partnering and parenting, and a significant measure of control over one’s body and mind, are liberties that free citizenship implies and that a republican form of government requires.  But I questioned the stability of the doctrine that the Supreme Court has relied on to sustain these rights of choice and self-control.   

In cases involving the right to choose contraception, the doctrine came to be known as “penumbral privacy” and was defended as a means of protecting a right to seclusion found in the shadows of explicit protections in the Bill of Rights against things like having to quarter soldiers, or suffer an unwanted search, or admit to criminal wrongdoing.  But, as “taking The Fifth” suggests, the concept of privacy carries limited normative weight.

The doctrine supporting unenumerated rights of personal and family autonomy has long been defended as something requisite to a proper balance between liberty and order.  This was promising in that it suggested a right of self-definition in a context of respect for others.  But how can one gauge whether the balance between liberty and order is proper?  Some cases are easy:  Don’t yell “Fire!” in a crowded theater just for mischief.  But most cases are not so easy: Should I be at liberty to follow a religious conviction to shelter my children from the modern world, or should I be ordered to send them to school?  Should I be at liberty to punish my children with spanking if I was spanked as a child and firmly believe that my parents loved me and that spanking made me a better person?

It seemed to me – and it still does – that there was a more elegant and powerful way to defend constitutional protection of rights of personal and family autonomy.  It is this:  The original United States Constitution was vague and indeterminate about important matters of human rights.  It did not define citizenship, and it had been interpreted to preclude citizenship by people of African descent. It protected human enslavement.  It was quickly amended with a Bill of Rights that protected people against certain abuses of federal power, but it did not protect people against abuses of state power. 

The Constitution was revised after the Civil War to address these deficiencies.  Citizenship and its privileges and immunities were assured to all persons born or naturalized in the United States.  Slavery was forbidden.  People (citizens or not) were protected against unwarranted deprivations of life, liberty, or property and against unequal benefit of law’s protections.

Those who implemented these changes – the congressional bodies that proposed them, the state conventions that ratified them, and the people who elected representatives to those congressional bodies and ratifying conventions – were under the influence of an antislavery ideology.  They aspired to what Abraham Lincoln described as “a new birth of freedom,” and they repeatedly cited the constraints suffered by enslaved people as freedom’s anthesis.  No more, they said, would people be owned by other people.  No more would they be denied recognition of their rights as partners, or parents, or laborers, or members of a social and political community.  When the Reconstruction Amendments are understood together, and when they are understood in the light of their connection to the eschewal of human enslavement, they are easily understood to protect certain basic rights that had been denied to enslaved people:  the right to live and labor on chosen terms, to have a political voice, to move about the country freely, to marry, to procreate, and to parent in chosen ways.

Do the Reconstruction Amendments also protect a right to choose not to procreate? This is a question with which I have struggled.  I have found some guidance in the history of slavery and in the traditions that supported antislavery and abolition.  Enslaved women and men were used against their will for breeding (as well as for the sexual satisfaction of the white owning caste).  As a result, some vowed and attempted to inhibit procreation.   As I wrote in 1997,

“Antislavery activists spoke out against these violations of a person’s ‘inalienable right to [their] own body,’ [and] enslaved people devised means of resisting claims made on their progeny.  Means of resistance took sobering, sometimes chilling forms. . . . J.W. Loguen did not marry because, as he put it in his autobiography, slavery must ‘never own a wife or child of mine.’  Henry Bibb wrote that “if there was any one act of my life while a slave, that I have to lament over it is that of being a father and a husband of slaves,’ and vowed that the daughter whom he left in slavery was ‘the last slave that ever I will father for chains and slavery on this earth.’  Slave women who shared this sentiment were abstinent or used a variety of substances and devices to prevent conception or to induce abortion.  Emancipated slave Jane Blake commented that if ‘all bond women had been of the same mind, how soon the institution [of slavery] could have vanished from the earth.’ Abolitionist Lydia Maria Child wrote of a mother facing the imminent sale of her children who ‘took an axe and chopped off their heads, and then ended her own life with the same instrument.  Another woman in the same situation ‘threw her three infants into a well and then jumped in after them.’ Margaret Garner was immortalized by Toni Morrison in Beloved for trying to kill her four children to prevent their enslavement, and abolitionist Ellen Watkins Harper marveled that Garner’s act failed to move her country to abolish slavery. A former slave told of a woman whose children were regularly sold at the age of one or two.  He said that ‘when her fourth baby was born and was about two months old, she just studied all the time about how she would have to give it up, and one day she said, I just decided I’m not going to let Old Master sell this baby; he just ain’t going to do it.  She got up and give it something out of a bottle, and pretty soon it was dead.’”

What, I asked in 1997, could these stories of celibacy, contraception, abortion, and infanticide tell us about the right of procreative choice?   What, I ask today, could they tell us about the profound and painful question of whether or when a pregnant person may be forbidden or otherwise prevented from terminating a pregnancy?  There is no easy answer to this grave and weighty question.  Different answers flow from different religious or moral convictions and in different human contexts.  But the stories of slavery’s control over procreative liberty speak indirectly to Justice Coney Barrett’s suggestion that some of the difficulty in defining and justifying a constitutional right of abortion choice has been resolved by laws that permit new parents to surrender their infant children for adoption with little fuss or blame.

Adoption can be a noble thing.  It can be more noble than childbearing.  The exploitation and cultural arrogance that infected nineteenthand twentieth century “orphan train” and Native American “boarding school” projects are hopefully things of the past.  Adoption is also deeply desired, both by people unable or disinclined to procreate and by open-hearted others.  But what is the likelihood that an infant whom I surrender to public care will be successfully adopted?  Or adopted at all?

I try to imagine that I have conceived a child in the State of  Mississippi. Taking refuge in a Safe Harbor law would give me little if any comfort.  There are many reasons for this, most having to do with a strong sense of responsibility and connection that I would feel toward a descendant whom I had conceived, carried, and birthed.  First, I know that in the adoption market black and brown babies are far less expensive than are white babies.  And I know that this is because there is significantly less demand in the adoption market for black and brown babies and significantly less demand in the adoption market for darker-skinned babies than for lighter-skinned babies.  And I know that black and brown babies more often go unadopted.  I also know that adoptions sometimes fail, and the adopted child is sent or returned to state care.

But worry about a child’s adoption prospects would not be the only cause of my reluctance to bear and birth a child for the adoption market.  My reluctance would come also from a conviction that early abortion is not an act of murder, but an act to interrupt a human process that would ultimately lead to the birth of my progeny – of a child to whom I would have owed my all.  I hold this conviction without disrespecting the convictions of those who believe that early abortion, or even contraception, is murder.  For, as Justice Sotomayor suggested at another point in the Dobbs argument, what, other than religious (or, she might have added, personally held moral) belief could tell us when, before viability, the sanctity of life is bestowed? 

With abiding respect for those who would choose otherwise, I would decline any “Safe Harbor” that the State of Mississippi might offer me.  And I would feel wrongfully invaded and profoundly unfree were I forced to continue an early and unwanted pregnancy.