Justice Amy Coney Barrett, the newest member of the U.S. Supreme Court, asked just a couple of questions during today’s closely-watched oral arguments in Dobbs v. Jackson — the Mississippi abortion case that could result in the complete overthrow of Roe v. Wade and Planned Parenthood v. Casey or, falling short of that, in a sharp restriction on access to abortion.

But what Barrett had to say directly challenged legal arguments that presented the destruction of unborn life as a precondition for women’s liberty and equal opportunity.

The oral arguments provided an opportunity for both sides to address what had and had not changed since Roe and Casey were decided, with the goal of strengthening or undermining the need to uphold legal precedent. 

And those who sought the overthrow of the unlimited abortion license pressed their case that conditions on the ground had changed dramatically, giving women more alternatives to abortion. 

Here is what Justice Barrett had to say:

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?

Barrett raised the issue of adoption a second time:

Actually, as I read Roe and Casey, they don’t talk very much about adoption. It’s a passing reference that means out of the obligations of parenthood.

In Slate today, Mark Joseph Stern said that Barrett, by raising this option, had taken “direct aim at Casey, the 1992 decision that reaffirmed Roe while injecting an equality principle into the right to abortion by explaining that the burdens of parenthood diminished women’s personal and professional opportunities. She suggested that this concern has been obviated by ‘safe haven laws,’ and more broadly by the expansion of adoption in the U.S., rendering Casey’s reasoning obsolete — and its holding ripe for reversal.”

Julie Rikelman, senior director of the Center for Reproductive Rights, responded to Barrett’s comments by noting that carrying a birth to term was more medically dangerous than abortion. Likewise, she noted the emotional toll of placing a child up for adoption, giving the impression that it wasn’t a true solution for women struggling with unplanned pregnancies.

But Rikelman had to tread lightly. As Stern noted in his Slate post:

Perhaps it’s relevant to point out that Barrett is a mother of seven, including two children who are adopted. Roberts has two adopted children, and Justice Clarence Thomas has an adopted child as well.

Charles Savage, reporting on the oral arguments for The New York Times, highlighted a later exchange between Barrett and U.S. Solicitor General Elizabeth Prelogar that returned to the topic of safe havens and adoption:

Justice Barrett again asks about giving up a baby for adoption as an alternative. Prelogar says part of the liberty rights on which society has come to rely since Roe is that women have the freedom to decide whether to terminate a pregnancy versus instead terminating their parental rights.

Prelogar, in other words, is making clear that the status quo for legal abortion is non-negotiable and hinges on the right to terminate a pregnancy, ending the life of an unborn child.  Termination of parental rights and recourse to adoption is a separate matter.

Gerard Bradley, a constitutional scholar at the Notre Dame Law School, said Barrett’s question “recognized that, contrary to much ‘pro-choice’ rhetoric about women's control of their bodies during an unwanted pregnancy, it is really about unwanted children.”

He continued:

It is not about a few months of physical discomfort. It is instead about unwillingness to face up to challenges of actually raising a child whom one has brought into being by engaging in a procreative sexual act. 

Barrett’s question then cuts deeper, because it presents what would appear to be a win-win alternative for pregnant women thinking about abortion: save the baby’s life and avoid the responsibilities of parenthood, by — to use her example — dropping the baby off, no questions asked, at a hospital.

This challenge really put the pro-abortion lawyer on the spot: Is the movement about giving women a choice about actually parenting, or is it really about making sure that the baby is dead?

What’s also significant for Court watchers is the fact that with three justices (Sotomayor, Kagan, Breyer) expected to oppose the state law, and three (Thomas, Alito, Gorsuch) expected to overthrow Roe and Casey, Chief Justice John Roberts would need two votes (Kavanaugh and Barrett) to fulfill his reported goal of securing a narrow decision that would allow Roe to stand while restricting abortions to 15 weeks. Barrett’s comments suggest she will not give Roberts the help he needs.

Teresa Collett, a pro-life leader and University of St. Thomas law professor who helped craft an amicus brief for the Dobbs case, said she was “encouraged“ by Barrett’s comments. 

Justice Barrett, said Collett, was challenging the effort to conflate the responsibility of raising a child with pregnancy, when the two are distinct, “and adoption is an option for a woman who is unable for any reason to raise a child.“

“For good or for ill,” said Collett, “a woman can give birth and transfer responsibility for that child to the state simply by leaving the child in a safe location, like a fire station” or a hospital. 

In past decades safe haven laws were enacted in an attempt to respond to horror stories of infanticide, like babies being found in trash cans, she noted. 

“Some people attributed that to women being desperate and having no other options. It is an open question as to how effective they have been in reducing infanticide by distraught mothers.”

Collett was not surprised that Justice Barrett raised the topic of safe havens and adoption, given that a number of briefs supporting the Mississippi law, including the one she worked on, cited these options.

“We mentioned in our brief that we have to distinguish the act of giving birth with the life-long responsibility of caring for a child,” she explained. “There is adoption, and we have long waiting lines for adoptive parents.”

Reacting to Rikelman’s disinclination to acknowledge adoption as a real option for women struggling with an unwanted pregnancy, Collett urged the justices to take a different view.

The same instinct that drove all 50 states to adopt some version of safe haven laws is the instinct that should encourage people to promote adoption rather than abortion, she said. 

Choosing death for your child is never the right answer. There is a compassionate response for women who can’t or don’t want to parent their child. To embrace the idea that their life isn’t worth living isn’t consistent with our founding beliefs in the dignity of every human being and the intrinsic value of each human life.