Justice Amy Coney Barrett Brings Up Adoption, Safe Haven Laws During Mississippi Abortion Case Arguments
Supreme Court nominee Judge Amy Coney Barrett poses for a photo with junior United States Senator James Lankford (R-OK) on Capitol Hill on October 21, 2020 in Washington, DC.
Leigh Vogel-Pool/Getty Images

Justice Amy Coney Barrett presented questions about adoption and safe haven laws during arguments concerning the Mississippi abortion case at the Supreme Court on Wednesday.

“I have a question about the safe haven laws,” Coney Barrett said to Julie Rikelman, the senior director of the Center for Reproductive Rights. “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.”

“So it seems to me, seen in that light, 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? It seems to me that it focuses the burden much more narrowly.”

She added, “And so 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. Why — why didn’t you address the safe haven laws and why don’t they matter?”

She added a short while later, “as I read Roe and Casey, they don’t talk very much about adoption. It’s a passing reference that that means out of the obligations of parenthood. But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?”

Rikelman answered, “No, Your Honor, I believe it’s both, and — and that is exactly how Casey talked about it. It talked about the two strands of cases that supported the right.”

As reported by The New York Times:

Justice Barrett again asks about giving up a baby for adoption as an alternative. Prelogar says part of the liberty rights on which society has come to rely since Roe is that women have the freedom to decide whether to terminate a pregnancy versus instead terminating their parental rights.

The Times also noted:

Justice Barrett is asking questions that focus on the possibility of adoption and safe haven laws, which allow a parent to safely abandon an infant with certain designated people so the child can become a ward of the state. Her point seems to be that banning abortion would not necessary doom women to also raise unwanted children, in terms of the impact on their lives.

The Supreme Court’s decision on the case could dramatically change the landscape of abortion in the country.

The case, Dobbs v. Jackson Women’s Health Organization, concerns a 2018 law in Mississippi that bans most abortions after 15 weeks of pregnancy. As the law stands now, Roe v. Wade and the decisions that came after it hold that states have to allow a woman to be able to get an abortion up to the point of viability, or when the baby can survive on its own outside the womb. Most states hold this mark at around 20 to 24 weeks, so the Mississippi law is a direct violation.

Mississippi said in its original petition that the questions presented to the Court do not require them to overturn Roe or Planned Parenthood v. Casey. In its brief in July, however, the state wrote, “Roe and Casey are egregiously wrong” and said the court should overrule those decisions.

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