baby feet

The Freedom to Choose (to Give Your Babies Away)

By Martin Guggenheim

Supreme Court Justice Amy Coney Barrett’s remarks during the Dobbs v. Jackson Women’s Health Organization oral arguments from last December reveal, as clearly as anything, the futility of continuing to debate the subject of abortion with religious zealots — whether those zealots are stalking abortion providers, harassing women outside of clinics, or wearing judicial robes. The chasm is simply too wide. On the one side is a deeply held belief that terminating a pregnancy means murdering a human being. On the other side is an equally firmly held belief that denying a woman the right to terminate an unwelcomed pregnancy treats her as an incubator and denies her agency over her own life, and, as a result, constitutes gender discrimination and allows the religious beliefs of some to control the lives of all.

We can spill all the words we want, but nothing clarifies more clearly the uselessness of bothering to continue this discourse. On one level, Justice Coney Barrett’s remarks are simply preposterous; they reveal a cluelessness about the human condition and the meaning of bearing a child and then placing a newborn for adoption at birth. 

I have spent decades fighting for a parent’s right to maintain custody of their children who were too easily snatched from their homes and placed in foster care. Local officials routinely destroy families permanently through the destructive forces of the falsely labeled “child welfare system.” Many of the women with whom I work would no more willingly live without their children than cut off their own arm. To suggest that the simple answer is to place them with others at birth belies a misunderstanding of people at the deepest level. 

The proactive choice of terminating a pregnancy carries none of this freight for millions of women — but that’s because they do not share Justice Coney Barrett’s religious beliefs about human life, and they categorically disagree with any suggestion that aborting a pregnancy is morally wrong. 

I have also worked closely with many women who have voluntarily placed their children for adoption when they are born. Some of these women did not want to terminate their pregnancy, nor did they want to raise them. These women, of course, match Justice Coney Barrett’s profile. They decided that placing their baby for adoption was the preferred course of action. There is nothing wrong with that, and if those were the only women to whom Justice Coney Barrett was referring, there would be little need for rebuttal. 

But she was not talking about those women. She means, instead, to deny women agency over their lives. Her desired outcome is to force women to carry a pregnancy, regardless of the circumstances and regardless of their beliefs, values, and desires. To make up for this astonishing encroachment on a women’s freedom, she would celebrate the constrained options available to women once they give birth. At that stage, Justice Coney Barrett trumpets a woman’s right to choose: they can choose to keep their babies or choose to give them away to be adopted. 

Beyond all of this, Justice Coney Barrett ignores the reality of her world view, in which privileged women will retain the full choice over their lives by the simple device of traveling to a jurisdiction in which terminating a pregnancy is lawful and safe. Women without significant expendable income will be forced to endure the consequences of being denied the option available to wealthier women, and then will be told to celebrate the “simple” choice remaining to them: give their babies up for adoption (to the prospective families eager to take them in) or keep them and move on with their lives. But Justice Coney Barrett lacks an understanding of the pain and struggles associated with the challenges of raising children while living in poverty, or with other life circumstances that make that task exponentially more difficult than it is in the experience of more privileged parents.  Who gives babies up for adoption? Women living in conditions beyond their control, who end up choosing the lesser of difficult choices. For Justice Coney Barrett, that’s something to celebrate. For the rest of us, it’s an astonishingly narrow vision of women’s autonomy without the slightest concern for its disproportionate impact on the least powerful segment of American society. 

Ultimately, her remarks are shocking. It demeans women to tell them, in effect: Buckle up. So what, that we are taking away your two-generation long Constitutional right to bodily integrity? Don’t complain that we will no longer permit you to make among the most personal and significant decisions you have come to rely upon as fundamental aspects of your liberty. Don’t complain because, we want you to realize, we aren’t exactly enslaving you. We will only require that you give birth. Rejoice that we will continue to permit you the freedom to choose to give your babies away for others to raise. So what are you complaining about?

Martin Guggenheim is the Fiorello LaGuardia Professor of Clinical Law at NYU School of Law and co-director of the Family Defense Clinic.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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