Safe Haven Laws Were Never Supposed to Be an Alternative to Abortion

Despite what Amy Coney Barrett believes, safe haven laws cannot be retrofitted to meet the post-Dobbs crises in abortion access.

During oral arguments in Dobbs v. Jackson Women’s Health Organization, Justice Amy Coney Barrett questioned whether abortion was really necessary anymore given the existence of safe haven laws. (Erin Schaff / Getty Images)

The case of Dobbs v. Jackson Women’s Health Organization has thrust safe haven laws back into the public spotlight. Originally enacted in response to sensationalized cases of young women who had abandoned or killed their newborns, these laws enable a birth mother (or birth father or other relative) to anonymously drop their baby off at a designated location like a hospital or fire station, typically without the risk of being criminally charged with child abandonment or endangerment. From there, a state’s child welfare agency becomes responsible for finding an adoptive home for the surrendered baby.

Safe haven laws have done “serious work for the culture of life,” wrote scholar Carol Sanger, serving as “one more connecting dot in a larger enterprise that seeks to blur the boundaries between prenatal and postnatal life.” But safe haven laws were never intended to be a literal alternative to abortion—that is, not until Amy Coney Barrett expressly connected the dots during her questioning of Julie Rikelman, attorney for the plaintiff clinics, during oral argument in Dobbs.

Making light of the connection between gender equality and abortion rights, in her colloquy with Rikelman, Barrett expressed the view that safe haven laws take care of the pesky problem of compelled motherhood as they allow women to simply pop out and drop off the baby at her neighborhood fire station for someone else to raise. In short, being a vessel has never been easier nor true equality so readily within reach.

Although the Dobbs majority ultimately chose to hang its decisional hat on a different peg—namely that Roe was a constitutionally unwarranted exercise in “raw judicial power”—it honored Barrett’s vision of this modern development as a credible weapon in the anti-abortion arsenal.

Safe haven laws were never intended to be a literal alternative to abortion—that is, not until Amy Coney Barrett expressly connected the dots.

As many have recognized, Barrett’s is a cruel and dangerous vision. To begin with, safe haven laws ignore the very real risks and burdens associated with pregnancy and childbirth, particularly for vulnerable communities. As Rikelman pointed out during oral argument, it is 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, with disproportionate risk for women of color. Accounting for this reality, she stressed that precedent firmly establishes that the abortion right is comprised of two strands—the right to decisional autonomy and to bodily autonomy.

Safe haven laws have also been critiqued on the grounds that, as Jennifer R. Racine argued, they represent an abandonment of “society’s troubled young women” by “deciding that their deep-rooted problems can be saved by an after-the-fact, quick-fix solution.” Put slightly differently, as reported in a recent New York Times article, many experts in the adoption and women’s health fields call for using a contextual approach to evaluate these laws. Viewed in this way, rather than representing a “panacea,” safe haven surrenders can instead be read as “a sign that a woman fell through the cracks of existing systems. They may have concealed their pregnancies and given birth without prenatal care, or they may suffer from domestic violence, drug addiction, homelessness or mental illness.” 

Safe haven laws also fly directly in the face of generally agreed upon adoption best practices, such as pre-surrender options counseling, post-adoption support and open adoption plans. Critically, based on studies showing that “ongoing, meaningful contact before and after the adoption placement, results in better outcomes for members of the adoption triad,” open adoptions have become the “preferred and accepted standard” in the U.S., accounting for 90 percent of domestic adoptions. Open adoptions have also been shown to “reduce birth mothers’ feelings of pain and loss, resulting in more positive psychological well-being.”

Safe haven surrenders can be read as ‘a sign that a woman fell through the cracks of existing systems.’

However, the option of “ongoing, meaningful contact” is effectively precluded with safe haven baby surrenders due to the promised cloak of anonymity. According to Sanger, this secrecy is a “central lure” as it offers the relinquishing parent protection from stigma, media attention, and, in most instances, arrest.

Monica Kelsey, the founder of Safe Haven Baby Boxes, certainly had a point when she said “a baby should be placed in my box and not in a dumpster to die.” But the calculus is entirely different when the ‘decision’ to surrender a child is driven by desperation born of an abortion ban or restriction. This is an unconscionable ploy by the anti-abortion movement to further its long-sought after goal of erasing “the boundaries between prenatal and postnatal life” by, in this instance, claiming that safe haven surrenders are about saving babies from an untoward demise at the hands of their mothers, regardless of  whether they are located within or outside of the womb.

A growing number of states are considering fetal personhood laws that would formally efface the difference between the born and unborn—such as Georgia’s Living Infants Fairness and Equality (LIFE) Act, which allows taxpayers to claim “any unborn child with a detectable heartbeat” as a dependent on their state return in the amount of $3,000. This effort to retrofit safe haven laws as a viable substitution for abortion must be firmly resisted.  

It is unlikely that Monica Kelsey was including abortion as an option, given her roots in the anti-abortion movement and the fact that the Safe Haven Baby Box hotline refers pregnant callers exclusively to crisis pregnancy centers. Nonetheless, she wisely declared, “When a woman is given options, she will chose what’s best for her.” What’s best must include the option of abortion, free and clear of Barrett’s suggested sequestration of pregnant bodies as vessels.

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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About

Shoshanna Ehrlich is a professor in the Women’s, Gender, and Sexuality Studies Department at the University of Massachusetts Boston. In addition to teaching and writing about abortion, she has been an abortion rights activist for decades, with a particular focus on the rights of teens who are forced to seek judicial authorization for an abortion because they are unable to talk to or secure consent from a parent.