“Safe Haven” Laws Are Key to the Right’s Push to End Women’s Right to Abortion
Nationwide, “safe haven” laws allow mothers to abandon newborn children and relinquish responsibility for parenting them. The laws sound like something no one could oppose — but they’ve been a key strategy in the Right’s war on women’s right to abortion.
A pro-life demonstrator stands in front of the US Supreme Court in Washington, DC on May 5, 2022. (Jim Watson / AFP via Getty Images)
On December 1, during oral argument in Dobbs v. Jackson Women’s Health Organization, the six conservative members of the Supreme Court made clear that the court was prepared to eviscerate the legal right to abortion. It wasn’t particularly surprising stuff, unfortunately — until Amy Coney Barrett piped up with a question out of far-right field. Her remarks pointed to the anti-abortion movement’s long game: a campaign to re-stigmatize unwed motherhood and abortion, aided unwittingly by pro-choice Democrats. Regardless of how closely the court hews to the draft opinion leaked on May 2, Barrett’s December remarks foreshadow coming attacks on reproductive freedom.
“I have a question about safe haven laws,” Barrett asked the lawyer for the abortion clinic. Helpfully explaining for the uninitiated what on earth she was talking about, she said that “in all 50 states, you can terminate parental rights by relinquishing a child” — that is, abandon a baby anonymously at police and fire stations, hospitals, and the like, without fear of prosecution. She noted that the court decisions establishing the right to abortion all emphasize the burdens of forced parenting, yet the “safe haven” laws allow women to opt out of parenting.
With a weird sideswipe, Barrett simultaneously acknowledged and dispatched the burden of forced pregnancy, as “an infringement on bodily autonomy, you know . . . like vaccines.” Then she got right to the point: Didn’t safe haven laws solve the problem of unwanted pregnancies, making abortion unnecessary and Roe’s protections irrelevant?
As deeply strange as Barrett’s remarks were, they illuminate the worldview she and other fundamentalists inhabit — and the society she aims to make all American women live in. Anti-abortion activists have painstakingly laid the groundwork for this moment for decades. One mostly unnoticed element of the strategy has been the passage of safe haven laws.
“Safe Havens” Everywhere
After the first such bill (originally called the “Baby Moses” law) was signed into law by Governor George W. Bush in Texas in 1999, safe haven laws swept the country. By 2008, all fifty states had enacted them. They were typically enacted in the wake of a highly publicized discovery of a dead discarded newborn and were offered as the solution to this horrifying problem.
Once outrage was whipped up, legislators acted with speed — typically taking no more than a few months, and in some cases only a few weeks, to introduce and pass the laws, with no opposition. Not one vote was cast against safe haven laws in at least ten states.
No one, of course, is against protecting abandoned babies from death, any more than anyone is against a “culture of life,” a phrase deployed insidiously by the Christian right as shorthand for opposition to abortion. That’s probably why Democrats and the pro-choice movement jumped on this bandwagon.
In my home state of Washington, the prime sponsor of the original safe haven law, passed in 2002, was a liberal Democrat, Jeanne Kohl-Welles. In other states, Planned Parenthood and Right to Life united to back safe haven bills.
But safe haven laws quietly frame unwanted pregnancy as a matter of a choice between killing babies and relinquishing them for adoption, and they blur the distinction between abortion and infanticide.
Democrats may not have noticed where the wagon was headed, but the anti-abortion movement certainly did. An amicus brief submitted on behalf of twenty-six anti-abortion members of the House of Representatives in defense of the Partial-Birth Abortion Ban Act of 2003 put it, “The frequency of abortions throughout pregnancy, the grotesque and barbaric methods of destruction of children in the womb, and the consequent cheapening of human life in the eyes of society, [are] reflected in the widespread phenomena of ‘dumpster babies.’”
Stories of dead babies found in public bathrooms or in dumpsters are shocking but very rare. A 2003 study put the rate of babies killed or left to die at two per every hundred thousand births. Killing or abandonment of babies is not a major cause of infant death in the United States. It doesn’t even rank in the top ten. Lack of prenatal care and maternal smoking, to name just two, kill many more babies.
Safe haven laws take funding and attention away from reducing these more significant causes of infant mortality. They also discourage women from getting prenatal care while putting them in a double bind: for a woman to take advantage of the supposed inducements of safe haven laws — anonymity and immunity — she must conceal her pregnancy for its entirety, foregoing prenatal and obstetric care, while somehow managing to deliver her baby alive and healthy (the laws typically grant immunity from prosecution only if there is no sign of neglect or abuse). This may explain why so few women make use of the laws.
In Washington state, the number of babies surrendered to safe havens since 2002 numbers in the dozens; forty-three babies were turned over to safe havens in Washington between 2009 and 2016, about five per year. Nationwide, about thirty-five hundred babies were turned over to safe havens between 1999 and 2018. Advocates say saving the life of even one baby is worth it. But even by that measure, it’s not clear the laws work — no one knows what would have happened to these babies if not for the safe haven laws.
Even after passage of safe haven laws, babies are still occasionally found in dumpsters. For example, in Texas in 2019, ten years after passage of the first safe haven law, fifteen babies were illegally abandoned, five of whom died. These incidents haven’t undermined enthusiasm for these laws. Instead, they serve as occasions for news articles on the mysterious depravity of pregnant women who refuse to use safe havens — reminding the public that women don’t seem capable of using their choices properly — and spur calls for more funding for safe havens.
In Washington state, the safe haven law was broadened in 2014, after a dead infant was found wrapped in a blanket in the woods outside of North Bend. In 2016, the discovery of a baby (alive) in a dumpster in Everett prompted news stories on Washington’s safe haven law, with quotations from an adoptive mother who helped spearhead passage of the law and was “troubled” that the Everett baby’s mother “failed to use the law.”
Safe haven laws may actually increase the number of dumpster babies through a feedback loop of shame. By associating unwed birth with shame, safe haven laws suggest that unwed sex is shameful, and if unwed sex is shameful, then one certainly can’t plan for it by using birth control. And for that matter, if one cannot openly say yes to the sex one does want, it is more difficult to say no to the sex one doesn’t want, all of which may lead to unwanted — and unspeakable — pregnancies. Perhaps this is why Texas, first in the nation to pass a safe haven law, has high numbers of both legal and illegal infant abandonments.
The “culture of life” teaches that premarital sex and unwed pregnancy are wrong, yet they still occur, even among those who have absorbed these teachings. Indeed, unwed pregnancy is more common among those who are taught that premarital sex is wrong. The Catch-22 between the shamefulness of both abortion and unwed pregnancy tends to induce paralysis in a pregnant unmarried woman, as Merritt Tierce eloquently described in the New York Times Magazine. A tiny number of these immobilized women abandon their babies in dumpsters.
Back to Shame
Both child abandonment and adoption are nothing new, having been practiced in some form throughout time and across cultures. During the December 1 oral argument, the lawyer for the abortion clinic noted in responding to Barrett’s question that, while safe haven laws are new since Roe, adoption certainly existed at the time of the court’s decision.
In fact, until Roe, as I have explained elsewhere, each year thousands of unwed women gave up their babies for adoption in America. After Roe, the number of American babies given up for adoption plummeted. Yearly adoptions of American children peaked in 1970 at a hundred seventy thousand and then fell to half that number by 1975. In 2014, only eighteen thousand children under the age of two were placed for adoption in the United States.
This decline cannot be attributed to increases in abortion — abortion rates initially rose modestly after Roe, but then fell to below their pre-Roe rates. Roe helped de-stigmatize unwed pregnancy, freeing women to choose abortion or to keep their babies. It was as if America gave pregnant women a chance to vote and the result was a landslide: women overwhelmingly expressed their new choices by declining to give up their babies for adoption.
Yet the effects of those huge numbers of surrendered babies are still with us. Internet sites for adoptees and birth mothers seeking each other abound, as do accounts of the profound and ongoing anguish of surrendering mothers’ experience. The American practice of stranger adoptions is a rare one in the world; it developed in the twentieth century through such legal means as sealed birth certificates and requires the erasure of birth mothers and the permanent “termination of parental rights,” a phrase that Barrett used in the December 1 oral argument several times, in a peculiar way.
“You can terminate parental rights by relinquishing a child,” Barrett said, a sentence that flips perspective halfway through, effectively obscuring the duress involved in relinquishing a child. “You” don’t terminate your own rights. Termination of parental rights is something that is done, devastatingly, by the state to mothers. This rhetorical sleight of hand is intrinsic to safe haven laws, which on the one hand protect abandoning mothers from criminal prosecution and public disclosure, and on the other irreversibly sever the parental bond. A birth mother in dire straits gets protection from prosecution and exposure only by relinquishing her most profound rights.
Anonymity for birth mothers is always characterized as part of the inducement to safely hand over the baby. The US government page on safe haven laws discusses anonymity, together with immunity from prosecution, under the header “Protections for Parents.” But in fact, advocates for both surrendering mothers and adoptees have long pressed to end anonymity in adoption, because it makes it much harder for birth mothers and adoptees to ever reconnect.
Furthermore, as Marley Greiner, a cofounder of adoptee advocacy group Bastard Nation, explained in the New Yorker, anonymity makes it difficult or impossible to tell if the birth mother was coerced into giving up her baby or for a mother to reclaim her child. Twenty-nine states have no procedures whatsoever for a mother to attempt to reclaim a child surrendered at a safe haven. A few states do provide for a surrendering mother to be given a token, such as a bracelet, that matches her to her baby, but the token does not give her the right to reclaim her baby: the Connecticut statute warns, “[T]he bracelet shall not be construed to authorize the person who possesses the bracelet to take custody of the infant on demand.” At the same time, only a few states require safe havens to maintain the abandoning mother’s confidentiality.
These features of safe haven laws do offer protections for adoptive parents from any challenge to their parental rights, and so are part of a wider effort to promote adoption, a favorite cause of the Christian right.
Justice Barrett has adopted two children from Haiti, a country with a troubled history of American Christian adoption and repeated allegations that children are being exported for American adoption despite not being orphans. One of Barrett’s two adopted children was adopted from Haiti shortly after the 2010 Haitian earthquake, when the US government allowed Haitian children to be scooped up and sent from the country with little to no proof that they were orphans or had been voluntarily relinquished. Similar issues have arisen wherever the international adoption industry has boomed.
In spite of these hiccups, adoption has been a successful strategy for the anti-abortion right, demonstrating that abortion opponents care about babies even after they are born, that they are for “life” instead of simply against abortion. The safe haven laws fit neatly into this strategy, promoting adoption as a method of saving babies’ lives, while, in the words of law professor Carol Sanger, “keeping a vivid cautionary tale about the wages of abortion and the apparent ruthlessness of pregnant women in the public eye.” By subtly re-stigmatizing unwed pregnancy, safe haven laws began to reverse the broad cultural change that flowed from Roe.
Barrett tells us, chillingly, what is at stake: “[T]he choice . . . would be between . . . the ability to get an abortion . . . or the state requiring the woman to go fifteen, sixteen weeks more and then terminate parental rights at the conclusion.” Here again, she obscures the difference between a termination done to a woman and one chosen by her. For Barrett and her ilk, motherhood begins at conception and ends whenever the state sees fit.
On December 1, the justices returned again and again to the question of stare decisis (the weight of prior court decisions) and whether fifty years of cultural expectations should count toward keeping Roe. Justice Barrett pointed out that there were already contrary cultural expectations.
Long before the Supreme Court oral arguments, and certainly long before the leaking of the draft decision, the anti-abortion movement had figured out that to prevail they would have to change the culture. They would have to shift the debate from rights to shame — shame for having sex outside marriage, shame for getting pregnant, shame for having an abortion, shame for not wanting to have a baby, shame for being a woman. Shame does not respect state borders, and it threatens reproductive freedom in all fifty states. Any effective resistance will have to challenge head-on the idea that women’s exercise of reproductive autonomy with or without marriage is, in fact, shameful.