The firestorm over Justice Amy Coney Barrett’s question on adoption during Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization continues to rage in the media. For example, in the New York Times, Democratic strategist Elizabeth Spiers wrote a piece that paraphrased the question as “Why was abortion necessary, when women who do not want to be mothers can simply give their babies up for adoption?” That is not what Barrett was asking in the oral argument but it did not matter to the New York Times any more than it mattered to the Washington Post to run a clearly erroneous column on originalist support for abortion.
The exchange with Julie Rikelman, a lawyer for the Center for Reproductive Rights, concerned the list of burdens imposed by the law, including the raising of a child. Barrett was asking whether that is a burden that should be thrown into the balance when women are not forced to raise children and can put them up for adoption anonymously under safe haven laws.
“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.”
That is not saying that, since adoption is available, a woman is not facing significant burdens. To the contrary, Barrett prefaced her remarks by saying barring abortion would entail “an infringement on bodily autonomy.” However, pro-choice advocates made specific use of the burden of raising a child in their arguments. Barrett was simply asking why such a burden should be assumed when a mother elects to raise a child rather than put the child up for adoption.
In response, some newspapers ran stories about the pain of giving up children for adoption. That however is not a refutation of Barrett’s point. That certainly captures the cost and trauma faced by mothers. However, that does not answer the question of whether, if you are claiming the burden of raising a child, the court should consider the decision not to use adoption to avoid that burden.
As for Spiers, she wrote:
“As an adoptee myself, I was floored by Justice Barrett’s assumption that adoption is an accessible and desirable alternative for women who find themselves unexpectedly pregnant. She may not realize it, but what she is suggesting is that women don’t need access to abortion because they can simply go do a thing that is infinitely more difficult, expensive, dangerous and potentially traumatic than terminating a pregnancy during its early stages.”
I do not understand why Spiers would assume that Barrett has no idea of (or was dismissing) a woman’s difficulty of making such a decision. Barrett has both biological and adopted children. Indeed, many of us were appalled when Boston University professor Ibram X. Kendi described her for adopting two Haitian children as virtual body snatching by a “white colonizer.”
Barrett was asking about the burden claims expressly made by the challengers to the Mississippi law. That is her job to define what are the countervailing interests and burdens of the parties. There will likely be ample disagreement with the various opinions that come from Dobbs, but the hair-trigger criticism over this question is, in my view, unwarranted.