On Wednesday morning, people across the country tuned in to listen as the Supreme Court heard arguments in the case widely seen as the greatest threat to abortion rights in decades: Dobbs v. Jackson Women’s Health Organization. The case centers on Mississippi’s 15-week abortion ban, which would undermine or overturn Roe v. Wade if upheld.
During arguments, the court appeared poised to overturn at least some abortion protections. Key to the court’s decision are the three nominees of President Donald Trump — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
In one of the more noteworthy exchanges of the hearing, Barrett suggested adoption may render the issue of abortion irrelevant.
Barrett questioned Julie Rikelman, a Center for Reproductive Rights attorney arguing against Mississippi’s 15-week ban, about whether the “burdens of parenting” emphasized in two key abortion cases, Roe v. Wade and Planned Parenthood v. Casey, could be resolved by “safe haven” laws rather than abortion.
Safe haven laws protect parents who give unwanted infants to hospitals and other designated places from criminal prosecution.
“Insofar as you and many of your amici [supporting legal briefs] focus on the ways in which the 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,” Barrett said. “Why don’t the safe haven laws take care of that problem?”
Barrett later added that Roe and Casey mention adoption only in passing, as it relates to “obligations of parenthood.” But, Barrett said, it doesn’t “seem to me to follow” that pregnancy and parenthood were part of the same burden.
The junior justice acknowledged that Mississippi’s ban does present “an infringement on bodily autonomy,” comparing that infringement to vaccine mandates.
Before replacing Ruth Bader Ginsburg, Barrett openly opposed abortion and criticized Roe during her time as a Notre Dame law professor. She is also a mother of seven children, two of whom were adopted.
On social media, many abortion rights supporters seized on Barrett’s remarks, with some pointing out the health risks that pregnancy poses.
“Pregnancy is hard on the body. It can be excruciatingly difficult for all 40 weeks,” one Twitter user wrote. “Pregnancy and childbirth is also more dangerous in this country than it should be.”
In her response to Barrett, Rikelman similarly argued that Roe and Casey focused not just on the burdens of parenting, but the “unique physical demands and risk” that pregnancy poses.
“In Mississippi, those risks are alarmingly high,” Rikelman added. “And those risks are disproportionately threatening the lives of women of color.”
Rikelman’s argument is supported by the American College of Obstetrics and Gynecology, which wrote an amicus brief in the Dobbs case comparing the risks of pregnancy with abortion.
“The overwhelming weight of medical evidence conclusively demonstrates that abortion is a very safe medical procedure. Complication rates from abortion are extremely low, averaging around 2%, and most complications are minor and easily treatable,” the brief stated.
The risk of death from an abortion is even rarer, the brief continued: “In contrast, the risk of death associated with childbirth [is] approximately 14 times higher.”
Barrett’s suggestion Wednesday that adoption could avert the need for an abortion was particularly troubling, abortion rights activists said, because of the United States’ infant and maternal mortality rates.
The United States has a high infant mortality rate compared to other high-income countries, with Black babies being the most vulnerable. The same pattern holds true for maternal mortality: The Centers for Disease Control and Prevention found that maternal deaths increased by more than 15 percent in 2019, with Black women more than three times as likely as White women to die of childbirth-related causes.
Structural inequality, such as access to affordable prenatal care, is often cited as a main driver for this trend.
Mississippi’s law turns on the question of viability — the point at which a fetus can survive outside the womb. In medicine, that is generally considered to be around 23 or 24 weeks. Mississippi’s law would ban abortion two months earlier than that.
Mississippi is not arguing that a fetus can survive outside of the womb at 15 weeks, but that this line could shift in the future with medical advances. Given that potential, viability standards should either be revisited or scrapped, the state has argued.
Antiabortion groups also say that Roe is outdated, citing gains women have made economically and professionally since the landmark case. Mississippi Attorney General Lynn Fitch, who explicitly asked the Supreme Court to reverse Roe, has advanced these arguments, saying support for parents is greater than it was in the 1970s, and that contraceptive quality and access has improved. Barrett’s line of questioning also cast doubt on the need for abortions, suggesting that adoptions may be a viable enough alternative to reconsider court precedent.
At an antiabortion rally outside the Supreme Court on Wednesday, Marjorie Dannenfelser, president of the Susan B. Anthony List, emphasized the hope the movement feels: “Mississippi’s law, if upheld, brings us much closer to where we ought to be.”
“This is America’s chance to step back from the brink of madness after all these long years,” she continued. “To turn the page on Roe’s onerous chapter and begin a more humane era — one where every child and every mother is safe under the mantle of the law.”
Andréa Becker, a medical sociologist who spoke out against Barrett’s line of questioning, said the justice’s suggestion that the burdens of pregnancy and parenthood can be allayed by adoption “could not be further from the truth.”
These burdens are highly variable, shaped by “positionality” — an individual’s race, wealth, social status and physical ability, Becker said. Those without means or status are most impacted by pregnancy and parenthood, whether they want children or not.
She continued: “People like Amy Coney Barrett make it seem like continuing the pregnancy and placing a child for adoption is a simple, no-brainer, alternative, which outright ignores the physically grueling, highly dangerous aspects of pregnancy as well as the financial and social tolls of this experience.”