By ED WHELAN
December 2, 2021 2:44 PM
In its brief in Dobbs, the state of Mississippi argued that one of the factual developments in the years since Roe and Casey were decided is that “all 50 States and the District of Columbia have enacted ‘safe haven’ laws, giving women bearing unwanted children the option of leaving the newborn directly in the care of the state until it can be adopted.”
At oral argument yesterday, Justice Barrett probed whether this development reduces or eliminates the “burdens of parenting” associated with an unwanted pregnancy. (Transcript, pp. 56-58, 108-109.) Barrett made clear, I thought, that she was distinguishing the “burdens of parenting” from the “burdens of pregnancy” (p. 109): “[I]t doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden” (pp. 56-57).
But what struck me as clear was evidently not clear to others. Alexandra DeSanctis has already responded to the Daily Beast’s distortion. I’ll address here law professor Sherry Colb’s response to Barrett. In doing so, I will move past Colb’s characterization of pregnancy resulting from voluntary intercourse as “forced pregnancy” and of the human fetus as a “parasite.”
Colb’s primary response to Barrett simply ignores Barrett’s distinction between the burdens of parenting and the burdens of pregnancy: “Given how physically intrusive and biologically threatening a pregnancy is, the opportunity to give up children for adoption is completely irrelevant to the wholesale assault that the placenta wages against a woman’s body.” What she is identifying in the italicized language obviously consists entirely of the burdens of pregnancy.
Colb offers a second “more subtle” reason why Barrett is wrong:
When one has carried a pregnancy to term and given birth, one will generally be overcome with a sense of attachment to the baby…. Once we give birth, having to hand the baby over to someone else is likely to be gut-wrenching and devastating.
Such a decision surely could be “gut-wrenching and devastating,” though I would think that a woman with a well-formed conscience would find it even more gut-wrenching and devastating to kill her child (and that a state’s laws could properly treat the killing as worse than the emotional turmoil from the safe-haven decision). In any event, insofar as a mother decides “to hand the baby over to someone else,” she is relieving herself of any further burdens of parenting. So Colb’s point is relevant as a response to Barrett only when those powerful emotions prevent a mother from availing herself of the safe-haven option.