What Amy Coney Barrett's Roe v. Wade Remarks Get Wrong About Adoption

Abortions aren't necessary because women can always give their babies up for adoption. That was the argument Justice Amy Coney Barrett appeared to be making during oral arguments in Dobbs v. Jackson Women's Health Organization earlier this month.

The Supreme Court's conservative justices signaled they were leaning towards upholding Mississippi's 15-week abortion ban in that case, leaving the future of Roe v. Wade—the landmark ruling that established the constitutional right to an abortion—in peril.

Barrett, who was appointed to the high court by former president Donald Trump last year, noted that all 50 states have safe haven laws that allow a woman to relinquish an infant for adoption shortly after giving birth.

"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," Barrett, who has two adopted children, said. "Why don't the safe haven laws take care of that problem?"

Experts and researchers told Newsweek that Barrett's argument ignores the burden of forcing a woman to carry a pregnancy to term, and minimizes the impact that placing a baby up for adoption can have on birth parents as well as the children involved.

Associate Justice Amy Coney Barrett
Associate Justice Amy Coney Barrett stands during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. Erin Schaff/Pool-AFP via Getty Images

"The argument that because a pregnant woman can give her baby up for adoption, she therefore experiences no recognizable burden and no violations of her fundamental rights is absurd," Lynn Paltrow, the founder of National Advocates for Pregnant Women, told Newsweek.

Restricting access to abortion forces women "to give up her right to bodily integrity, her right to medical privacy, to medical decision-making and her right to make decisions about the size and timing of her family."

Nicole Witt, the executive director of The Adoption Consultancy, said it's "a common misconception" that a woman facing a crisis pregnancy is choosing between abortion and adoption. But those who want to terminate a pregnancy and those who ultimately choose adoption are usually "facing very different challenges," she told Newsweek.

Some may choose to have an abortion because of the risk continuing with a pregnancy presents to their health or even their life.

"Every pregnancy is a risk to the pregnant woman's life," Paltrow said, adding that the U.S. has a "ridiculously high" maternal mortality rate along with no universal healthcare or paid parental leave.

Others may seek to terminate a pregnancy over fears of an abusive partner or because the child is the product of a non-consensual encounter. "There are thousands of other reasons a woman may consider an abortion that adoption in no way alleviates," Witt said.

Pregnant women may also be worried about the cost of prenatal healthcare and giving birth, or concerned about losing their job or being unable to work if they continue with a pregnancy.

While pregnancy discrimination in the workplace has been illegal in the U.S. since 1978, a 2019 investigation by The New York Times found that "many of the country's largest and most prestigious companies still systematically sideline pregnant women."

"So you've got thousands, if not hundreds of thousands of people, who, because of pregnancy, are not protected from workplace discrimination, who could be deprived of their ability to support the families and the children that they have," Paltrow said.

Barrett's remarks are "the same kind of argument that has been used throughout history when you look at white people trying to control Black women's lives and Black women's wombs," Marcela Howell, the president and CEO of In Our Own Voice: National Black Women's Reproductive Justice Agenda, told Newsweek.

She noted that rich women will always be able to travel for abortions, so the impact would be disproportionately felt by poor women and women of color.

"The burden of carrying a pregnancy on your body is not an easy thing," she said, adding that it's even riskier for Black woman, who have a higher maternal mortality rate and have historically faced discriminatory treatment in healthcare.

The suggestion of Barrett's remarks was that it "is okay to force a woman to carry an unwanted unexpected pregnancy to term in order to benefit some other person," Howell continued. "This is what they did in slavery... Black women were forced to give birth to more children who were then sold into slavery or who were kept to benefit the people who owned her."

Activists participate in a candlelight vigil
Activists participate in a candlelight vigil on abortion rights in front of U.S. Supreme Court on December 13, 2021 in Washington, D.C. Alex Wong/Getty Images

And while Barrett did acknowledge the burden of carrying an unwanted pregnancy to term, calling it "an infringement on bodily autonomy," her comments failed to acknowledge that the decision to relinquish an infant for adoption can have long-lasting consequences.

"It's naïve to presume that a woman who is not ready to parent could easily go through a pregnancy and simply place her baby for adoption without any negative repercussions," Witt said.

"Being forced to carry the pregnancy could put her in a position that I often see as an adoption professional—where her family puts so much pressure on her to parent that there is no way she could place the child for adoption without being disowned and losing her loved ones and her support system."

While she notes that the number of babies placed for adoption in the U.S. is dropping each year, Witt fears that outlawing abortion will lead to a situation where more children end up in foster care against their parents' will.

"Our country already doesn't have enough families willing to adopt children from foster care, so this would put a huge strain on our currently overburdened system," she said.

That will also disproportionately impact Black children, Howell said, pointing to research that shows Black children take longer to be adopted than white children, and that dark-skinned Black children wait longer than those with lighter skin.

Barrett's characterization of safe haven relinquishments as a way for a woman to "take back control over her life and her future is so incongruous with what we know about how women make decisions about pregnancy, about parenting and about what they want for their children and their families," said Gretchen Sisson, a sociologist with Advancing New Standards in Reproductive Health, a research group at the University of California San Francisco.

Demonstrators gather in front of the U.S.
Demonstrators gather in front of the U.S. Supreme Court as the justices hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks, on December 1, 2021 in Washington, D.C. Chip Somodevilla/Getty Images

"Adoption in this country is not a decision of a moment," Sisson told Newsweek. "It's a decision that is lived over the course of a lifetime for both the birth mother and the adoptive child."

The experts also hit back at Barrett's characterization that safe haven laws will allow a baby to be surrendered with no threat of criminal prosecution for the birth parent. "We've already seen prosecutors criminalizing women's bodies for miscarriages or illegal abortions," Howell said.

And the idea that these laws "are some adoption panacea is completely mythological," Paltrow said. She said it can be extremely difficult for a woman who has just given birth to comply with the laws, when different states have different rules about where a child can be left and in a small window of time.

"They make it sound like as you can have a baby and you can drop it off and never have to worry about that baby again," she said. "That is the myth, that is the hoax."

Mississippi's safe haven law, for instance, requires an infant no older than 72 hours to be left at an emergency medical services provider, defined as a licensed hospital operating an emergency department or an adoption agency licensed by the Department of Human Services.

"Let's say you are desperate mother who gave birth… you drop the baby off at the fire station in Mississippi instead of an emergency medical service provider. You can be guilty and arrested for abandonment of a child, desertion, or non-support of a child, contributing to the neglect or delinquency of a child," Paltrow said. "These are not panaceas, where you drop off your child and the state of Mississippi raise it with respect and care for you."

Elizabeth Bartholet, a professor at Harvard Law School, agreed that Barrett's remarks are "ignorant and misleading about the reality of the abortion decision."

However, she noted that safe haven laws are "infinitely better than having such women feel pressured into abandonment of the baby in unsafe ways or, worst case, murdering the baby."

But she pointed to disadvantages that include leaving a child "without any ability later in life to know who its forebears were."

In any case, safe haven relinquishments are incredibly rare, Sisson said, and it's impossible to know the circumstances in which they are used.

She said her research has found that most women who are denied an abortion don't give their child up for adoption, but choose to parent instead. A study she conducted with other researchers found 91 percent of women who were denied an abortion chose to parent, while just nine percent placed the infant for adoption.

"What we know is that women who want to have abortions are uninterested in adoption," she said. "It's not a function of just avoiding parenting, it's about not wanting to continue their pregnancies."

And for those who do choose adoption, Sisson says her ongoing research shows that there is "almost universally" a sense of mourning and grief involved.

"It's important to remember that the anti-abortion movement in the United States tells birth mothers and women who relinquish that they're heroes and they're selfless and they've made a brave and loving choice," she continued. "So some of them will come out of that grief and feel really quite good about their decision."

But Sisson said those who initially felt positively about their decision rarely felt as good when she returned to interview them years later.

"Even when an adoption works out well, as it did in my case, it is still fraught," Elizabeth Spiers wrote in a recent guest essay for The New York Times, describing how her biological mother found the choice "traumatizing and still feels that pain" decades later.

Spiers added: "The right likes to suggest that abortion is a traumatic experience for women—a last resort, a painful memory. But adoption is often just as traumatic as the right thinks abortion is, if not more so, as a woman has to relinquish not a lump of cells but a fully formed baby she has lived with for nine months."

Paltrow said adoption should always be available as a choice for birth parents, but it "has to be because it is done for reasons that they're comfortable with, not because it's the only option they're left with."

Howell added: "The ultimate problem that we're looking at is whether or not women have the right to make decisions about their own bodies. And what Justice Barrett is saying is: No, I don't believe they do."