Amy Coney Barrett Was Speaking In Anti-Abortion Code. Here’s What She Really Meant.

Justice Amy Coney Barrett. TPM Illustration/Getty Image

In an exchange that set much of the internet aflame, Justice Amy Coney Barrett posed a question to an attorney for Mississippi’s Jackson Women’s Health during last week’s oral arguments. Why, she wondered, were abortion rights necessary when “safe haven” laws exist to dispense with the “consequences of parenting and the obligations of motherhood”? 

“Why didn’t you address the safe haven laws, and why don’t they matter?” she asked.

She noted that every state has a version of the law, which generally decriminalizes leaving an unwanted newborn at a designated location.

The remark prompted incredulity and outrage. Some angrily dismissed it as her callous indifference to forcing women into unwanted pregnancy and childbirth. 

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But it was more than that. It was a wink, a quiet nod to a set of laws neatly woven into the tapestry of the anti-abortion movement. It was code for those in the know.

“The fact that she used that phrase, which most people don’t know what it is — she was signalling to her base,” Carol Sanger, a professor at Columbia University Law School, told TPM.

A Familiar Refrain For Those In The Anti-Abortion Movement

At all levels of the anti-abortion movement, advocates have long touted safe haven laws to dismiss the necessity of abortion — a rich history that Barrett’s question was tapping into.

The argument, stretching back more than two decades, is splattered across Supreme Court legal briefings supporting various abortion restrictions. 

“The safe haven statute completely eliminates the pregnant woman’s burden of parenthood,” petitioners write in a 2015 filing defending Arkansas’ 12-week abortion ban.

A similar refrain is voiced repeatedly by those defending the Mississippi ban currently before the Supreme Court. It was also wielded in filings for the six-week ban out of Texas and in a recently decided case on abortion clinic restrictions in Louisiana. 

“Abortion is permanent,” the Texas amici write. “Pregnancy lasts months.”

Anti-Abortion Ties From The Beginning

The first safe haven law, then called a “baby Moses law,” was passed in 1999 Texas during the fiercely anti-abortion governorship of George W. Bush.

It was a response to a rash of abandoned infants in the Houston area, but also to years of sensationalized stories about mothers — often very young, often in denial about their pregnancies — killing their newborns, or leaving them to die. Only a couple years prior, in a tabloid story that fascinated and horrified the country in equal measure, “prom mom” Melissa Drexler had given birth in a bathroom stall during her senior prom, left the baby in a trashcan and rejoined the dance. 

The safe haven idea quickly spread to other states, often buoyed by wide bipartisan agreement. In 2001 alone, 20 states adopted similar safe haven laws, according to Laury Oaks, professor of feminist studies at University of California Santa Barbara and author of a book on safe haven laws. 

The laws were facially about combatting infanticide, something both Democrats and Republicans obviously oppose. But the connections to the anti-abortion movement, physically and subtextually, have always been present. 

Some states drew the connections explicitly in their legislation, Sanger noted. Louisiana designated crisis pregnancy centers as safe havens. New Jersey gave a position on the state’s Safe Haven Task Force to the anti-abortion organization New Jersey Right to Life. Multiple states channelled the proceeds of “Choose Life” license plates to safe havens.  

“Safe Havens’ enduring achievement may not be infant rescue so much as the reinforcement of anti-abortion sentiment, by connecting infanticide to abortion,” Sanger wrote, adding: “It facilitates a cultural climate more hospitable to anti-abortion jurisprudence and the eventual reversal of Roe v. Wade.”

The Anti-Abortion Deus Ex Machina

The idea of safe haven laws as an abortion end-run is now prevalent, if you know where to look. It can be found in the anti-abortion movement’s lobbying at the highest court, but not just there.

“With Safe Haven laws, women have an alternative to abortion,” tweeted the research arm of the prominent anti-abortion organization Susan B. Anthony List.

State groups reliably echo the claim. 

“Arkansas’ Safe Haven Act of 2001 lets a woman surrender her newborn baby to law enforcement, medical personnel, and first responders,” Arkansas’ anti-abortion Family Council recently cheered. “The law gives women with unplanned pregnancies an option besides abortion.”

The argument even crops up at crisis pregnancy centers, tentacles of the anti-abortion movement masquerading as neutral medical advisers. Birthright St. Charles, one such outfit in Missouri, lists information on safe havens as an abortion alternative.

Lawmakers too use safe havens as swords in their state-level fight against abortion access. 

Arkansas state Sen. Jason Rapert (R), while advocating this year for a bill that would ban virtually all abortions in the state, pointed to safe haven laws as removing “all burden of childcare” from the unwilling mother. 

“So in this situation with this bill, if someone feels that they cannot care for the baby, or maybe they don’t want the baby, they don’t have to abort the baby,” he said. 

Not A Realistic Abortion Replacement

In Barrett’s question, she was also positing safe havens as a logistical alternative to abortions in a (perhaps not so) hypothetical future without Roe v. Wade. 

This, experts are quick to point out, would be unworkable. 

The data on safe havens is spotty and often unreliable. But there is little doubt that the number of abortions in the United States far eclipses the number of safe haven relinquishments. In 2021, Louisiana’s Department of Children and Family Services reported that 79 infants have been successfully relinquished under safe haven laws since 2004, a span of 17 years. The CDC recorded that 8,144 abortions took place in Louisiana in just one year in 2019, the most recent year for which they have reported data.

“You’d have to create whole new agencies,” Rick Barth, professor at the University of Maryland School of Social Work, told TPM. “Child welfare doesn’t want to be doing this — it wants to look at households where kids are living, making sure they’re safe.”  

Barrett’s question, then, was less a logistical solution and more a reference freighted with history, implication and subtext for a certain set of people.

“With a number of issues in our society, anti-abortion politics is ever-present, it’s always there,” Oaks said. “But if you don’t know the key words and are not part of those circles, you might not see it.”

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