Abortion rights stand on a scary precipice right now, and the Supreme Court will soon decide whether they survive or fall.
On November 1, 2021, the Supreme Court heard oral argument in Whole Woman’s Health v. Jackson, a challenge to the constitutionality of the most extreme abortion law currently in force in the country—Texas’s SB 8. That law relies on a unique private enforcement mechanism designed to subvert constitutional challenges and impede access to federal courts. The law prohibits abortions after the detection of embryonic cardiac activity, which usually occurs around six weeks after the first day of a pregnant woman’s last menstrual period. Described in more detail here and here, the law precludes direct enforcement by the State of Texas and instead deputizes “any person” in the world to bring a private lawsuit to collect at least $10,000 in damages from anyone who provides or abets an abortion after the cut-off point.
This law is being challenged in a variety of lawsuits, both state and federal. There is still no ruling from the U.S. Supreme Court on the two federal cases it heard in November, even though a significant majority of the Justices seemed poised during argument to block the enforcement of SB 8. But even when it does rule, the Court is unlikely to rule on the underlying constitutional question. Given the expedited procedures used in the case and the focus of questions in the argument, it seems most likely that the Court will address the uniquely oppressive procedures Texas is using only for abortion, which are intended to make it impossible for people to exercise their federal constitutional right of abortion. (Those procedures were just declared unconstitutional in a parallel state court case, Van Stean v. Texas Right to Life.) But the Court can block the law without saying anything about the underlying constitutional right to obtain an abortion because, for the moment, there still is one, and states cannot create a scheme whose sole purpose is to thwart a federal constitutional right. No matter what the Court does in the SB 8 cases, we will never know why it allowed an obviously unconstitutional law to take effect in the first place and permitted it to continue in effect for at least 100 days. If the rule of law means anything, it should mean that this doesn’t happen.
As much as SB 8 has captured our attention (especially mine, as I teach reproductive rights law in Texas), it is a side show. The main event is another case, Dobbs v. Jackson Women’s Health Organization, in which the Court heard oral arguments on December 1, exactly a month after the SB 8 argument. This case involves a challenge to a Mississippi law that bans all abortions after fifteen weeks unless necessary to save the life of the pregnant woman. Unlike the Texas case, this case squarely presents the question whether there is (still) a constitutional right to seek an abortion until a certain point in pregnancy. The Court will likely issue an opinion in this case at the end of its term, in June 2022, just as the Justices are escaping both the literal and figurative heat in Washington, D.C.
At stake in Dobbs is the constitutional right of abortion. The Court first recognized that right in 1973 in Roe v. Wade and reaffirmed but revised it in Planned Parenthood v. Casey in 1992. (A more detailed analysis of these cases can be found here, here, and here.) Thus, the Court has recognized and enforced a right to abortion for almost fifty years.
As reformulated in Casey, the abortion right, more specifically, is the right to terminate a pre-viability pregnancy without an undue burden from the government. Every court to consider the question has understood that to mean that there can be no outright bans on abortion before viability, which is currently around 24 weeks in the United States (the time when a fetus might be capable of living with or without medical support outside the womb). States can and do impose a variety of obstacles to abortion care—waiting periods, mandatory ultrasounds, scripted and false or misleading counseling, and so on.
Red states have also passed laws that clearly violate the undue burden standard, such as Texas’s SB 8. But until the United States Court of Appeals for the Fifth Circuit allowed SB 8 to take effect on September 1 of this year—completely abdicating its responsibility to apply existing Supreme Court precedent—no court has ever permitted a pre-viability ban to take effect. The legislatures continue to pass unconstitutional bans in the hopes that an increasingly conservative Supreme Court will revisit Roe and Casey and either overrule them completely or curtail them significantly.
The Mississippi law at issue in Dobbs clearly violates Roe/Casey. Fifteen weeks is long before viability, and pre-viability bans are unconstitutional. The federal district court enjoined the law, and the federal appellate court—in a very conservative circuit—agreed. But the Supreme Court granted review, signaling its intent to revisit the entire abortion rights framework. In Dobbs, the Supreme Court agreed to consider only one question: “Whether all pre-viability prohibitions on elective abortion are unconstitutional.” Given the Court’s current very conservative 6-3 majority, it seems likely that the answer will be no.
Based on the Justices’ questions during oral argument, many experts believe the Court will overturn the entire line of abortion cases and hold that the Constitution does not take a position on abortion. This would throw the issue back to the states, which would be devastating to American women, as more than half the states have already taken steps or will take steps to ensure that abortion is banned in virtually all circumstances. And yet this position would not go far enough for the anti-abortion movement, whose ultimate goal is to get constitutional protection for fetuses, which would prevent states from allowing abortion.
There is no crystal ball, and it is possible that the Court will land somewhere short of overruling Roe/Casey, perhaps to stave off the “stench” cited by Justice Sotomayor created by reversing course for no reason other than the change in the identity of the Justices—and their political ideologies. Yet that change in composition—from Ruth Bader Ginsburg to Amy Coney Barrett and from Anthony Kennedy to Brett Kavanaugh—is exactly why abortion rights are on the chopping block. During the oral argument, one could observe posturing by both Kavanaugh and Barrett that seemed designed to overrule Roe and Casey but without conceding that the Supreme Court is just a political body and that when the Justices interpret the Constitution, they are simply giving effect to their personal ideologies.
For Justice Kavanaugh, this meant a series of questions about whether the Court should be “scrupulously neutral” on the issue of abortion and simply not take a side at all. He dwelled on this idea of neutrality in several questions, fooling no one. And there is nothing “neutral” about “neutrality.” If the Constitution has been interpreted to protect the right of abortion, and the Court now decides to withdraw that protection, it has sided with the anti-abortion movement at the expense of women’s life, liberty, and ability to flourish. This is especially glaring given the doctrine of stare decisis, which means that the Court is not supposed to abandon precedents without a sufficiently compelling reason. Kavanaugh’s motives were transparent—he wants to get rid of abortion (maybe more to prove his Federalist Society bona fides than because he holds principles of any kind) without losing even more standing in polite society than he lost during his contentious confirmation hearings. But in some ways, the questions from Justice Barrett were even more absurd.
In two different colloquies, Justice Barrett suggested that abortion is no longer needed because every state now has a safe-haven law.
First things first: what is a safe-haven law? These are laws that were passed in rapid succession about twenty years ago—there is now one in every state. These laws, also called “Baby Moses” laws, give parents a short window during which they can leave a newborn baby at a “safe haven” without risking prosecution for child abandonment or neglect. The statutes designated certain “safe havens,” such as hospitals, churches, and police or fire stations, where the parents can just leave a baby and walk away. Just as Moses was rescued by the Pharoah’s daughter after being left in a basket at river’s edge—while his sister Miriam secretly watches to make sure he is discovered—a “safe haven” baby will presumably be discovered quickly enough to be kept alive until it can be turned over to a child protection agency. These laws conjure up the image of old foundling hospitals, where mothers could push unwanted babies through a revolving window, ensuring their care and safety (and the mother’s anonymity).
During Julie Rikelman’s oral argument, in which she argued on behalf of the abortion clinic providers who challenged the Mississippi law, Justice Barrett posed the following question:
Ms. Rikelman, 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 after birth], 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. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.
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 then brought them up again when questioning Solicitor General Elizabeth Prelogar, who had been given oral argument time to defend the federal government’s interest in enforcing the U.S. Constitution:
And I mentioned the safe haven laws to Ms. Rikelman, and it—it seems to me I fully understand the reliance interests. There are the airy ones Justice Kagan was referring to and then there are the more specific ones about a woman’s access to abortion as a backup form of birth control in the event that contraception fails so that she need not bear the burdens of pregnancy.
But what do you have to say to Petitioners’ argument that those reliance interests do not include the reliance interests of parenting and bringing a child into the world when maybe that’s not the best thing for her family or her career?
Both lawyers were surprised by this line of questioning, as safe-haven laws don’t play any role in the law or policy of abortion. But Justice Barrett’s suggestion seemed to be that no woman needs an abortion if she has the option of abandoning her newborn baby at a fire station without penalty. As she put it when referencing involuntary parenthood: Why don’t the safe haven laws take care of that problem? Now at first glance, this might seem like an odd way of framing the choice faced by a pregnant woman. Wouldn’t adoption be the more natural alternative for a pregnant person who does not want to be a parent? At second glance, it’s worse than odd. It was a blatant attempt by Justice Barrett to suggest that safe haven laws, relatively new in the grand scheme of things, have changed the landscape sufficiently to justify the Court’s abandoning the abortion rights it established in 1973 and reaffirmed in 1992. I would bet money that she will write an opinion of some kind in this case in which she makes this ludicrous suggestion.
Safe-haven laws are “new.” Texas passed the first infant safe-haven law in 1999, and every other state passed one, too, within just a few years. But they are not relevant. Texas’s safe-haven law was passed after a year in which thirteen babies were abandoned in public places, four of whom were found dead. Baby Moses laws were focused on a very specific—and also very rare—situation: birthing mothers in crisis who leave their newborn babies to die or commit neonaticide. The safe haven was a very specific remedy for a particular situation—pregnant women who concealed their pregnancies, gave birth in secret, and then abandoned their babies. The idea behind a safe-haven law is that these mothers could be given an alternative—the same ability to walk away, but without the fear of discovery and prosecution. In return, the abandoned babies would be safe(r).
Safe-haven laws do not contemplate scores of babies being raised communally by firefighters. Like any child without adequate parental care, a safe-haven baby would be placed initially in foster care or an orphanage and, if possible, with an adoptive family. In the end, the desired outcome for a baby without parents is adoption, whether that baby spent a few hours under a burning bush or was handed over gently in the hospital from a nurse to a social worker or from a birthing parent to a carefully chosen adoptive parent. Adoption is the means by which the law creates a legal parent-child relationship either to supplement or replace a biological parent-child relationship. Although there was no such thing as adoption at our country’s founding, states began passing adoption statutes in the 1860s, and soon every state had one.
The 1860s were a long time before 1973, when the Supreme Court first held that the right to terminate a pregnancy is fundamental and therefore protected under the Fourteenth Amendment. The Court knew when it decided Roe that a person could give birth and also not be a parent—there is no criminal or civil penalty for relinquishing a baby for adoption. And yet the Court deemed the right to terminate a pregnancy fundamental. And it did so by drawing on notions of bodily autonomy and decision-making autonomy about matters as personal and consequential as whether to bear or beget a child. The burdens of pregnancy and childbirth are significant in their own right—it is fourteen times more deadly to give birth in this country than to have an abortion. And this is to say nothing of other possible harms of pregnancy like discrimination at work, an increased risk of intimate partner violence, the physical burdens of pregnancy on the body, and the loss of income that often accompanies pregnancy and childbirth due to the lack of benefits like paid leave.
In addition, the decision to relinquish a child for adoption is weighty—one that may well have different consequences for the biological parents than would the decision to terminate a pregnancy. The Supreme Court has upheld a ban on one method of abortion largely because it assumed—without evidence—that women would regret having allowed a doctor to perform what the Court deemed a ghastly method. I have been critical of the decision in Gonzales v. Carhart both because the Court made a factual assumption about women’s reaction to abortion without any empirical evidence (and available evidence is to the contrary) and because it infantilized women by assuming that they are not capable of making decisions on their own or dealing with the consequences of their decisions. In a society that is allegedly predicated on self-determination and democratic ideals, the Court has no business curtailing women’s rights in order to protect them from their own regret. Given the way in which the Court has used women’s emotions against them in this context, it was particularly shocking to hear Justice Barrett casually suggest that forced pregnancy is no big deal because one can just give birth and leave the baby at a fire station. If we were going to make decisions based on hypothetical regret, might this not be a better time to do it?
Safe-haven laws were probably a good idea, though evidence suggests they are rarely used. Simply put, the birth of a child is not always taken as a blessing. Killing the newborn is an old and well-known pathology. But a cluster of cases near the end of the twentieth century fueled talk of an “epidemic” of newborn abandonment. The public was shocked when Melissa Drexler gave birth in a bathroom stall at her high school prom, and deposited a bag with the baby and a stack of bloody towels in the bathroom trash can. Melissa fixed her hair and makeup before returning to the dance floor and requesting that the DJ play “The Unforgiven” by Metallica. Drexler pleaded guilty to aggravated manslaughter and was sentenced to fifteen years in prison; she was released after serving three. Melissa was not alone. High school sweethearts Amy Grossberg and Brian Peterson were convicted of manslaughter after leaving their son in a dumpster behind the dilapidated hotel where he was born in 1996. There are other stories, of course, many of which resulted in criminal penalties. But the safe-haven laws are designed to prevent the harm for which the punishment is imposed—to save the baby. The slogan for New Jersey’s safe-haven program aptly describes the system: “No Shame. No Blame. No Names.” Yet few babies are left at safe havens. Some number are still abandoned, unsafely, shortly after birth. And we don’t know what becomes of the babies who are left at safe havens. There are over 100,000 children in the United States waiting to be adopted, many languishing in foster care systems that are inadequately funded and poorly run (even as some agencies fight for the right to reduce the number of adoptive parents by discriminating against LGBT couples).
There is no reliable data on the number of newborn babies who are killed or abandoned. One survey of newspaper reports in 1998, when these laws were first under consideration, found 105 reports of babies abandoned in public places across the country, 33 of whom were found dead. This is tragic, but relatively miniscule in a country where four million births take place every year. And the number pales in comparison to the number of mothers who die from pregnancy-related causes in this country—about 18 for every 100,000 births. Yet Justice Barrett suggested that it’s not that much of a burden for a woman who is 16 weeks pregnant—and thus too pregnant to get an abortion under Mississippi’s law—to continue for another 24 weeks. After all, she can just have the baby, and, if she survives the birth, leave it at a fire station.
Justice Barrett concluded her first “safe haven” question with this: Why – why didn’t you address the safe haven laws and why don’t they matter? The second question answers the first.