Apparently We Don’t Need Abortion Because of Adoption … “or Whatever”

Amy Coney Barrett’s suggestion that adoption is a simple alternative to abortion is shocking. To have that suggestion come from a mother of seven children—who has both been pregnant and been through the process of adoption—is dangerous.

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Pro-choice and anti-choice activists demonstrate in front of the the US Supreme Court during the 47th annual March for Life on January 24, 2020 in Washington, DC. (OLIVIER DOULIERY / AFP via Getty Images)

During oral arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi case seeking overturn Roe v. Wade, Justice Amy Coney Barrett questioned whether abortion was really necessary anymore given the existence of safe haven laws.

For some, this was reminiscent of when, three years ago, during the immigration crisis at the border, then-White House Chief of Staff John Kelly flippantly said of the children ripped from their parents that “the children will be taken care of—put into foster care or whatever” with no concern about what would happen next.

During Julie Rickelman’s argument on behalf of the abortion clinics, Barrett explained that:

… both Roe and Casey emphasize the burdens of parenting, and 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. Why don’t the safe haven laws take care of that problem?

Safe haven laws were created to allow mothers to safely give up their children without fear of criminal prosecution or child welfare system involvement in response to a purported increase in babies being abandoned in unsafe locations. Mothers who are not able to care of their children are able to drop their babies at fire stations or hospitals where the state can take them into its care. Barrett’s position therefore is that the right to an abortion is unnecessary because mothers don’t have to experience the burdens of motherhood if they don’t want to, because they have the option of abandoning them at a “safe” location.

As many have pointed out, this argument ignores the fact that pregnancy itself has profound impacts on a woman’s life and comes with many risks, especially in a state like Mississippi with an exceptionally high maternal mortality rate. Further, the decision to have an abortion which might be complicated for some and easy for others, may be an entirely different calculus than the decision to give up a child after carrying it to term.  Just as people have abortions for a variety of deeply personal reasons, people may choose adoption for other reasons. Adoption is not and will never be, the equivalent of the right to an abortion for a victim of incest or someone who becomes pregnant after being raped. 

Pregnancy itself has profound impacts on a woman’s life and comes with many risks, especially in a state like Mississippi with an exceptionally high maternal mortality rate.

To suggest that adoption is a simple or equivalent alternative to abortion is shocking. To have that suggestion come from a mother of seven children, who has both been pregnant and been through the process of adoption, is dangerous.

As law professor Melissa Murray has noted, Barrett adds a layer of perceived authority to speak on such matters as the only mother on the Court. And, to be sure, one can have an informed opinion on a subject without personal experience. However, the right has tried to capitalize on Barrett as an expert on all things related to motherhood, when she has never herself had an abortion or given a child up for adoption.

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The Trumps with Amy Coney Barrett and her family on Sept. 26, 2020, in the Rose Garden of the White House. (White House / Shealah Craighead)

Crucially, what Barrett’s “pro-life” position also misses is the impact on the living child.  

Her rose-colored version of safe haven laws being a direct route from abandonment to adoption is simply not based in fact. Last year, as is typical, over 400,000 children were in foster care. Of those, only 4 percent were in-pre adoptive households. Over 100,000 children were awaiting adoption—meaning that their parents legal rights had been terminated or the state’s goal for them was adoption. And only 12 percent of those children were in a pre-adoptive home. For many children, even if eventually adopted, some time will be spent in foster care. And foster care is not always a safe haven.

For many children, even if eventually adopted, some time will be spent in foster care. And foster care is not always a safe haven.

Many children report abuse in foster care. A study of alumni from the Casey Family Programs found that 21 percent of children surveyed had experienced abuse in foster care. Another study in Georgia found that for children whose case goal was adoption, 34 percent had experienced some type of harm including abuse or neglect in foster care. 

In addition, foster children experience mental health struggles at unprecedented rates. One study found that 43 precent of foster children carried depression diagnoses, and 2 percent had PTSD diagnoses. Another found rates of PTSD that were almost twice that of U.S. war veterans. And for the many children who age out of foster care without being adopted, they have no legal relationship to their family and no safety net to fall back on, setting them up for uniquely grave outcomes.

Imagine if Barrett’s vision of the world comes to pass and the almost 900,000 women who had abortions in 2017 carried their children to term. If even half of those took advantage of safe haven laws, that would double the number of children in foster care that year alone, stretching an already overburdened system. In a state like Texas, where one out of five children is poor and foster children already sleep on the floor of agency offices, life is already bleak.

But as is often the case for conservatives, Barrett’s pro-life argument ends at the point of birth. Because of course, if a mother doesn’t want her child, once it is born, she can give it up for adoption or whatever.

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About

Shanta Trivedi is an assistant professor of law and faculty director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) at the University of Baltimore School of Law. She previously represented parents in Brooklyn who are embroiled in the child welfare system and as a result of that experience writes about state-sanctioned family separation focusing on issues related to race, poverty and gender.