By Tony Corsentino

 Politico published on May 2 a leaked draft opinion, written by Justice Samuel Alito, overturning the 1973 Roe v. Wade decision guaranteeing constitutional protection of the right to abortion. I was among the adoptees to voice my horror at the news, inevitable though we knew it was. But, since my bodily autonomy is not at risk, what is my stake in this? What does my perspective add to those of the millions of people who may soon find that it is a crime in their states to take care of their own bodies?

In early December, Justice Amy Coney Barrett wondered aloud in oral arguments in Dobbs v. Jackson Women’s Health whether the availability of relinquishing one’s offspring for adoption might obviate the need to seek an abortion:

So petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after [birth], and I think the shortest period might be 48 hours if I’m remembering the data correctly. It seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting. And insofar as you and many of your amici focus on the ways in which 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—why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is without question an infringement on bodily autonomy, for which we have another context like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden, and so it seems to me that the choice, more focused, would be between, say, the ability to get an abortion at 23 weeks, or the state requiring the woman to go 15, 16 weeks more, and then terminate parental rights at the conclusion. Why didn’t you address the safe haven laws, and why don’t they matter?

I talked in my Fourteen Propositions about the way adoption services in the United States and other industrialized countries commodify children, treating them as social wealth that is transferred from the less resourced to the more resourced. Adoption agencies deal with what is widely seen as a supply problem: demand from hopeful adoptive parents vastly outstrips the “domestic supply of infants relinquished at birth or within the first month of life,” which by 2002 had become “virtually nonexistent.”1 Amy Coney Barrett’s remarks exemplify a common way of thinking among conservatives and liberals, which is that adoption serves as a “safety valve,” reducing the demand for abortion services.

Representative Dan Crenshaw of Texas distills it to its essence.

I am a product of a closed domestic adoption, for which the reigning justification remains, even now, the idea, developed during the “Baby Scoop Era” (1945-1973), that relinquishing an infant under circumstances of secrecy solves several problems at once: a child gets a loving home; hopeful parents get a child to raise; and a “mistake” is “erased,” allowing the birth parent another start at making a better life.

There is an enormous moral difference, however, between relinquishment and adoption as intervening in a crisis situation for which there is no better alternative, versus instituting a de facto social system in which people are coerced into producing children for transferral into other, unrelated families. 

To read the rest of this fantastic article, “Why is That Controversial,” visit Tony’s substack This is Not a Legal Record.

Follow him on Twitter @corsent, as well.