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. 

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

The Danger of Forced Pregnancy

By Laura Briggs

When Amy Coney Barrett suggested that adoption and safe-haven laws were an adequate substitute for abortion care for people who did not want to be pregnant, she was essentially insisting that they do a kind of high-risk, uncompensated labor to produce a baby or child for adoptive families like hers. 

Like the anti-abortion movement that supported her nomination for the Supreme Court, Coney Barrett is not shy about acknowledging that she is in favor of forced pregnancy, and that this labor — in both senses of the term — could benefit other people who were childless or had fewer children than they wanted. 

We know this work has value; people who hire women in the United States to carry a surrogate pregnancy pay them $30,000 to $50,000. Denying abortion to women who want them, and then expecting them to relinquish the resulting baby for adoption, is asking them to do that same labor for free.

As Black feminist legal scholar Pamela Bridgewater has pointed out, there is a word for forcing people to do unpaid reproductive labor on behalf of others: enslavement. In fact, as she argues, forced pregnancy was key to the historic labor system of slavery in the United States — the children of enslaved mothers were themselves enslaved, and once the importation of African people for purposes of enslavement was banned in the United States in 1808, it was how slavers kept the system going and increased their own wealth, including by raping enslaved women. Slavery was outlawed in the United States with the passage of the Thirteenth Amendment, but Coney Barrett apparently means to reinstitute a version of it. 

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Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

Adoption, Family Separation & Preservation, and Reproductive Justice

By Gretchen Sisson

When a draft of the Supreme Court decision in Dobbs v. Jackson Women’s Health was leaked last week, its content was a jarring shock for many. Over a few days, the surprise of the leak and the appall at the decision narrowed into specifics, and more people noticed what might have been missed in first reading: in a footnote, a passing citation from a fourteen-year-old report from the Centers for Disease Control that read, “the domestic supply of infants relinquished at birth… had become virtually nonexistent.” 

In coverage, this note sparked rage anew at the connection between abortion bans and increasing the supply of adoptable infants being made overt. Yet, much like those of us who study abortion in this country were not surprised by the draft of the decision, those of us who study adoption were even less surprised by this note. In the Dobbs oral arguments, Justice Amy Coney Barrett told us this was about adoption – and pre-Roe history has shown us how closely adoption and abortion are linked rhetorically, if not actually in people’s pregnancy decision-making. Yes, the Dobbs decision will also be about constraining people’s choices and controlling their lives and futures to conform to fundamentally regressive ideas about family, gender, and race. But then again: most often, so is adoption.

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WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

Tennessee on My Mind: Reflections on the Reinstated Abortion ‘Reason Bans’

By Cathy Zhang

In February, the Sixth Circuit Court of Appeals issued a one-sentence order allowing Tennessee’s “reason ban” abortion restrictions to go into effect. The restrictions make it a felony for a provider (or any other person) to perform an abortion if the provider “knows” the patient is seeking an abortion on account of the fetus’s sex, race, or probable diagnosis of Down syndrome.

The court below had previously enjoined the Tennessee law, which also includes a pre-viability abortion ban. This order leaves the previability ban in place while lifting the injunction on the reason bans; the reason bans will remain in effect until the Supreme Court makes a further ruling on abortion in Dobbs. In her dissent, Circuit Judge Karen Nelson Moore charged that the court’s order “subvert[s] the normal judicial process” and reflects a growing tendency of federal courts “to delay the adjudication of laws that significantly impair constitutional rights.”

Numerous health organizations, racial justice groups, and disability advocates alike have warned against the harms that the reason bans will inflict on people of color and disabled persons. Statements from these groups, along with 19 states and the District of Columbia, a host of constitutional law scholars, and other amici make clear that the law’s purported concern for marginalized groups belies an effort to restrict abortion access at the expense of pregnant people’s health and constitutional rights.

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

A ‘Middle Ground’ in the Legal Abortion Debate Disproportionately Harms Marginalized Communities

By Adrienne R. Ghorashi, Esq.

All eyes are on SCOTUS after the Court heard oral arguments on Mississippi’s 15-week abortion ban in Dobbs v. Jackson Women’s Health Organization and issued narrow rulings in cases related to Texas SB8 early this month. The line of questioning, as well as the Court’s continued decision to allow most abortions in Texas to come to a screeching halt, are a distressing signal that abortion rights are in immediate danger. Under Roe and Casey, bans on abortion prior to fetal viability (around 24 weeks) are a violation of a pregnant person’s constitutional right. While some have characterized Chief Justice Robert’s comments as searching for a supposed compromise to overturning Roe, this proposition ignores the stark reality of the legal landscape of abortion in the United States.

Pre-viability abortion bans, such as the one in Dobbs, already exist in 25 states, ranging from bans at any point in pregnancy, to 6-week “fetal heartbeat” bans, to the more common 20-week ban. Pre-viability abortion bans can also include “reason-based” bans that seek to prohibit abortion based on a person’s reason for seeking one. Many of these states have more than one type of abortion ban in their laws. Although most of the more extreme pre-viability bans are not currently in effect due to court rulings (with Texas SB8 being a frightening harbinger of a post-Roe nation), this legal standard is precisely what’s at stake in Dobbs.

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(Institute for the feeble-minded, Lincoln, Ill. / Library of Congress)

Brittney Poolaw and the Long Tradition of State-Sponsored Control of Women and Their Fertility

By Lauren Breslow

On October 5, 2021, a 20-year-old Native American woman, Brittney Poolaw, was convicted by an Oklahoma jury of manslaughter for the death of her 17-week-old, non-viable fetus.

Her conviction stands as a modern recapitulation of the historical violations that women, especially Black and Brown women, have endured regarding their fertility.

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Los Angeles, California, United States. June 23, 2021: #FreeBritney rally at LA Downtown Grand Park during a conservatorship hearing for Britney Spears.

How Adult Guardianship Law Fails to Protect Contraceptive Decision-Making Rights

By Kaitlynn Milvert

After Britney Spears testified this past summer about her struggle to have her intrauterine device (IUD) removed while under conservatorship, many commentators posed a simple, but critical question: Can conservators (or guardians) make contraceptive decisions for those under their care?

Attempting to answer that question reveals an area of state guardianship law where guardians’ authority is particularly murky and ill-defined. Reform is needed to address the restrictions on reproductive decision-making rights that adults under guardianship currently face.

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Activists and concerned residents of New York City gathered at Union Square to demand Free, Safe and Legal Abortion on Sept 12, 2021.

Health Justice Meets Reproductive Justice

By Rachel Rebouché

Over the past few weeks, the headlines have been dominated by the implementation of a Texas “heartbeat” law. The law, which prohibits abortions after detection of fetal cardiac activity, “shall be enforced exclusively through . . . private civil actions” and “no enforcement may be undertaken by an officer of the state or local government.” For that reason, the Fifth Circuit, and then the Supreme Court, declined to enjoin the law’s application because, in part, no one had yet to enforce it. The Court did not opine on the law’s constitutionality, even though the statute directly contradicts precedent protecting abortion rights before viability. Indeed, as the DOJ argued in its recent lawsuit against Texas, the state designed the law specifically to circumvent judicial review.

What does Texas’s abortion ban have to do with health justice? The answer may not seem obvious because of how the debate over Texas’s law has been framed. Commentary has focused on whether or not litigants have standing to challenge the law or whether the federal government could successfully intervene to stop enforcement of the law. And these are important questions, especially for the providers and those “aiding and abetting” them, who are subject to the lawsuits of private citizens suing for $10,000 per procedure in violation of the law.

The costs of this law, however, could far exceed these potential damages. A health justice perspective highlights those costs and how lack of access to abortion entrenches economic and racial inequality.

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Beyond Abortion: The Far-Reaching Implications of SB 8’s Enforcement Mechanism

By Cathy Zhang

The United States Supreme Court’s refusal to block Texas’s SB 8 abortion restriction earlier this month foreshadowed an uncertain future for abortion jurisprudence and put reproductive rights at the center of national discourse.

But abortion is not the only right at stake: the novel enforcement mechanism behind SB 8 may soon appear in a wide range of legislation, making it more difficult to challenge unconstitutional laws.

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

How Social Movements Have Facilitated Access to Abortion During the Pandemic

By Rachel Rebouché

Before the end of 2021, the U.S. Food and Drug Administration (FDA) will reconsider its restrictions on medication abortion. The FDA’s decision could make a critical difference to the availability of medication abortion, especially if the Supreme Court abandons or continues to erode constitutional abortion rights.

Under that scenario of hostile judicial precedents, a broad movement for abortion access — including providers, researchers, advocates, and lawyers — will be immensely important to securing the availability of remote, early abortion care.

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