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

The Leaked Dobbs Opinion, Explained

By Chloe Reichel

On May 2, 2022, Politico published a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, which showed the Supreme Court’s intent to overturn the right to abortion as decided in Roe v. Wade.

In response to the leak, the Petrie-Flom Center hosted a discussion with legal historian and Daniel P.S. Paul Visiting Professor of Constitutional Law Mary Ziegler and Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean I. Glenn Cohen.

Together, Cohen and Ziegler explained the background of the case, the contents of the draft opinion, and its potential implications not just for abortion access, but also for other constitutionally-protected rights, and for access to reproductive technologies, such as in-vitro fertilization.

The highlights of the conversation have been edited and condensed below.

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woman with iv in her hand in hospital. Labor and delivery preparation. Intravenious therapy infusion. shallow depth of field. selective focus

A Birthmother Reflects: The Perpetuation of Adoption Myths

By Angie Swanson-Kyriaco

During opening remarks for Dobbs vs. Jackson Women’s Health Organization on December 1, 2021, Justice Amy Coney Barrett stated that the “obligations of motherhood that flow from pregnancy” and the “burden” of parenting are eliminated through adoption.

It is no surprise that a conservative, anti-abortion, adoptive parent would have an over-simplified opinion about adoption, expectant parents, and birth parents. In her remarks, Justice Coney Barrett demonstrated a common lack of understanding about the complexities of adoption, and a blithe unawareness about adoption ethics and the need for adoption reform.

As someone who worked for over a decade in the field of reproductive health and rights, and now as the executive director of one of the only nonprofit organizations in the country that exclusively serves first/birth mothers who have relinquished infants for adoption, I know both how detrimental the lack of access to abortion can be, and how significant the lifelong impact of an adoption can prove.

And, as a first/birthmother, I have a deep personal understanding of the significant trauma of placing my own child for adoption, and the lifelong grief and ambiguous loss that follows relinquishment. 

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Nurse weighs baby in the nursery of the Cairns General Hospital at the FSA (Farm Security Administration) farm workers' community. Eleven Mile Corner, Arizona.

The Racialized History of Adoption Practice

By Rickie Solinger

The racial and gender coercions at the heart of adoption clarify the violence inherent in Justice Amy Coney Barrett’s wish to revitalize adoption in America as a substitute for abortion.  

The mass practice of adoption, which started in the U.S. in the post-World War II era, pressed white unwed mothers to surrender their babies to a four-faceted cause: preserving the face of white chastity in the era of emergent feminism; bolstering the fraying institutions of white male authority; reinscribing the hegemony of the white family (as this institution, itself, began to weaken); and crucially, underscoring the difference between Black and white.

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Lexington, Kentucky / United States - 06 28 2020: Fire Station 22 in Lexington, Kentucky in the early morning idle hours.

Safe Haven Laws and Anti-Abortion Politics

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.”

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WASHINGTON D.C., USA - SEPTEMBER 27, 2020: A Protestor carries a sign that says "Our Vote, Our Voice, Our Choice," at a protest against the nomination of Amy Coney Barrett to the Supreme Court.

The False Choice: Adoptee Voices in the Fight for Reproductive Freedom 

By Michele Merritt

As legal scholars have predicted since the current composition of the United States Supreme Court became apparent, abortion restrictions are increasing; if Roe v. Wade is overturned with the Dobbs v. Jackson Women’s Health Organization decision this coming June, over half of the states in the country will likely ban abortion entirely

During the Dobbs oral arguments, Justice Amy Coney Barrett suggested that adoption is a viable alternative to abortion. Her defense of overturning Roe, in other words, amounted to a belief that it’s not a violation of women’s rights to increasingly restrict access to abortion because adoption is always an option. 

But adoption is not a viable alternative to abortion. This is why several adoptees and I founded Adoptees for Choice, a coalition of adoptees speaking into the reproductive rights debate and rejecting the appropriation of our lived experiences without our consent. 

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Judge's gavel, handcuffs and scales on grey background, flat lay with space for text. Criminal law concept.

The Reproductive Violence of Family Policing & Separation

By Dorothy E. Roberts

In the Dobbs v. Jackson Women’s Health Organization oral arguments, Justice Amy Coney Barrett presented parental relinquishment as an alternative to abortion access. In the leaked Supreme Court opinion in Dobbs, which overturned Roe v. Wade, Justice Alito referred to this idea approvingly.

We asked Professor Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at the University of Pennsylvania, to highlight some of the problems with that claim. 

Drawing on her recently published book, Torn Apart: How the Child Welfare System Destroys Black Families – and How Abolition Can Build a Safer World (Basic Books, 2022), Roberts explains in the conversation below how the child welfare system uses family separation (or the threat thereof) as a means of policing Black families (as well as Native families, other non-white families, and poor families). This, she adds, is a result of the state’s failure to invest in families in fundamental ways, and is a clear manifestation of reproductive violence.

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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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