By Laury Oaks
During the Supreme Court oral arguments for Dobbs v. Jackson Women’s Health, Justice Amy Coney Barrett acknowledged that previous cases addressing abortion rights relied on a consideration of the burden of parenting and forced motherhood. For Justice Coney Barrett, this consideration was a non sequitur: “Why don’t safe haven laws take care of that problem?”
The so-called “safe haven” laws to which Justice Coney Barrett was referring were passed in every state from 1999 to 2009, to designate places where or people to whom an unharmed baby may be legally and anonymously relinquished and then adopted. A Florida safe haven advocacy group argues, “Safe Haven babies are given a chance for a future. A Safe Haven baby might become the President of the United States, a Supreme Court Justice, a scientist finding a cure for cancer or most important, a great mom or dad to their children.”
It is likely that the hypothetical Supreme Court Justice dreamed up by the drafter of safe haven laws would be much like Justice Coney Barrett, herself an adoptive mother and an advocate for safe haven laws as a socially acceptable, desirable option to unintended pregnancy. Her remarks provoked increased attention to the history, function, and meaning of these laws.
Barrett’s connection to safe havens was unsurprising to me. My research, Giving Up Baby: Safe Haven Laws, Motherhood, and Reproductive Justice, illustrates how anti-abortion advocacy and values consistent with Catholic and other conservative religious ideologies are at the core of safe haven laws. Legal scholar Carol Sanger’s 2006 Columbia Law Review article exposes the “culture of life” goals of safe haven laws. These exist alongside and intersect with pro-adoption values and practices, and some safe haven advocacy groups provide resources for facilitating adoption.
The first safe haven law was called the Baby Moses law in Texas, highlighting the biblical story of Moses’ rescue. It was signed in 1999 by then-Governor George W. Bush, a Republican, anti-abortion supporter of government funded faith-based social services. These included crisis pregnancy centers aimed at preventing abortion through biased options counseling, adoption promotion, and sharing of parenting resources; today, in some states, crisis pregnancy centers are state-designated safe haven locations. A series of unsafely abandoned infants in the Houston area in 1998 motivated the law’s proponents. Following the law’s passage, 75 billboards publicized it: the tag-line “Don’t Abandon Your Baby” is similar to the anti-abortion directive “Don’t Kill/Abort Your Baby.”
In an attempt to establish equivalence, legal abortion and safe haven laws position mothers as threats to their fetuses or newborns. It makes sense that Texas also is the leading state to “save babies” through the strictest abortion ban, which was allowed by the Supreme Court to go into effect on September 1, 2021. Under the Texas Heartbeat Act, abortion has been legally prohibited from around six weeks of pregnancy, with a provision to criminally punish anyone who aids and abets abortion after the “unborn child” has cardiac activity. In Texas, parenting, planned adoption, or anonymous safe haven relinquishment are figured as the baby-saving and legal options for pregnant women that will protect them from criminal prosecution and their fetuses/babies from death. The Texas anti-abortion law and safe haven law work together to establish a narrow and cohesive set of legal options.
Specific social categories of women are targeted by safe haven advocates – single women, teenaged girls, women of color, immigrant women, women with disabilities, and low-income women – and framed as potentially “bad” mothers. Even in the progressive state of California, the education code promotes age-appropriate teaching about the Safe Surrender for Newborns law. Safe haven advocacy groups design and distribute curricula, providing students with connections to the network of safe haven organizations and socializing youth to see unsafe infant abandonment as a problem and safe haven relinquishment as a normative solution. Safe haven education may lead people to overestimate the number of safe haven relinquishments and to curtail advancing other ways of approaching unwanted pregnancy. There is comparatively little shared about the context of who relinquishes newborns at these sites, or the circumstances under which they do so.
Promotional materials construct those who relinquish newborns at safe haven as lacking enough resources to be mothers, but, at the same time, as strong enough to deliver a baby alone and bring it to a safe haven site soon after birth. Further, coercion, domestic violence, a lack of social services, inadequate social support, and other circumstances that devalue women’s agency to make decisions about mothering must be considered when evaluating safe haven advocacy.
Central to safe haven ideology is that the vulnerable mother safely surrenders her baby as the highest act of maternal love. She both imbues her infant with love and sacrifices her right to parent that child. This is one condition that promotes safe haven babies as desirable in the U.S. adoption context. The no-strings-attached adoption due to the anonymity of the biological mother circumvents negotiating an open adoption, which is increasingly the practical norm in private adoptions. Further, the unharmed baby requirement for safe haven surrender increases the baby’s adoption value as both young and healthy. Finally, safe haven adoption plays on a moral appeal to rescue an innocent baby and envelop them into, for example, a higher socioeconomic, heteronormative, white, Christian, successful safe haven family, symbolically erasing the baby’s status as relinquished and elevating it as chosen.
Demonstration of the unsurpassed value of the safe haven baby is evidenced by the overwhelming interest in adopting them: in 2002, a safe haven advocacy hotline in Houston reportedly received over 700 calls, with nearly all callers expressing interest in adopting a safe haven infant, and not one caller considering abandonment. Some safe haven groups actively facilitate adoptions and expand their work, aligning with crisis pregnancy centers and cultivating “rescue families” by inviting birth mothers to select an adoptive family and offering open and closed adoptions.
It is imperative to make visible that Justice Coney Barrett’s contention that relinquishment is a reasonable and safe alternative to abortion access is the core logic of safe havens. Seeing these policies as simply “saving babies” conceals broader and pervasive safe haven advocacy goals that intersect with anti-abortion and pro-adoption ideologies. The anonymity of safe haven relinquishment constructs women as silent, pulling our attention away from seeing the realities of women’s pregnancy decision-making and concealing reproductive, racist, and classist injustices in our society that lead some women and girls to relinquish their newborns. In addition to calling for efforts to dismantle safe haven laws, I argue for working within and beyond safe haven discourses and practices to expand pregnancy and parenting resources to meet the diverse needs of individuals and communities.
Laury Oaks is Professor and Chair of the Department of Feminist Studies at University of California, Santa Barbara. Her research analyzes sexual and reproductive politics.
