Supreme Court

After SCOTUS Hearing, a New Look at Baby ‘Safe Haven' Laws

Safe haven laws drew attention this month when Justice Amy Coney Barrett raised the role they play in the debate around abortion rights

Amy Coney Barrett, associate justice of the U.S. Supreme Court, left, and Chief Justice John Roberts
Al Drago/Bloomberg via Getty Images

For years, Nicole Olson had longed for a baby and gone through a rigorous and emotional adoption process. Then Olson and her husband got a call asking if they'd like to adopt a newborn. That day. As soon as possible.

The baby had been relinquished through what’s known as a safe haven law. Such laws, which exist in every state, allow parents to leave a baby at a safe location without criminal consequences. The laws began to pass in state legislatures in the early 2000s in response to reports of gruesome baby killings and abandonments, which received copious media attention. Infants are at the highest risk of being killed in their first day of life, according to the Centers for Disease Control and Prevention.



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Olson rushed to a Target, filled four carts with baby stuff and was home with the newborn boy by dinnertime. Ten years later, the baby — named Porter by Olson and her husband, Michael — is thriving. He's athletic, funny and has adjusted well after a rough time during the pandemic, Olson said.

Safe haven laws drew attention this month when U.S. Supreme Court Justice Amy Coney Barrett raised the role they play in the debate around abortion rights. Barrett made the comments during a hearing this month on a Mississippi law that would ban most abortions after 15 weeks of pregnancy — and possibly upend abortion rights established by the 1973 Roe v. Wade decision legalizing abortion throughout the United States, and upheld by the court's 1992 ruling in Planned Parenthood v. Casey.

Depending on how the Supreme Court rules on Mississippi's abortion law, the legality of the medical procedure could be decided state-by-state, says Florida State professor and author Mary Ziegler. "There are going to be large regions, mostly across the South and Midwest, where abortion is entirely illegal. And it's going to be much more difficult for many people in the United States to get an abortion."

Barrett, with a long record of personal opposition to abortion, zeroed in on a key argument against forcing women into parenthood, suggesting safe haven laws address those concerns. “Why don’t the safe haven laws take care of that problem?” she asked.

Julie Rikelman, the attorney arguing against the Mississippi law, rebutted that argument, saying abortion rights are not just about forced motherhood but about forced pregnancy.

“It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work. And, in particular, in Mississippi, those risks are alarmingly high,” said Rikelman, of the Center for Reproductive Rights.

In a traditional adoption, a family knows who the mother is. They have her medical history and often keep a relationship with her.

That’s what Olson, a Phoenix-area high school teacher, was expecting when she and her husband worked with a private agency after years of trying other routes. Their son, Paul, who was 7 years old at the time, was also eager for a sibling.

But when they met their newborn, the couple didn’t know his exact date of birth, his race or any pertinent medical information.

“We didn’t really know what we were walking into. It’s just one of those things where it’s a total leap of faith,” Olson said. “But I feel like that’s true of any child, whether it’s your biological or adopted.”

It’s hard to find critics of safe haven laws, and advocates say if they save even one baby from being killed, they are worthwhile.

But some question their efficacy.

Adam Pertman, president and CEO of The National Center on Adoption and Permanency, said the laws' effectiveness, including in preventing death, aren’t studied enough.

“It’s flawed from the get-go because a woman who would put her kid in a trash can is not instead going to see a sign and say ‘Oh I’ll go to the police station instead,’” he said, adding that a woman in that situation is “not cogent enough to make a decision, or she wouldn’t put her kid in the trash can.”

Pertman said safe haven laws don’t address the needs a woman might have if she were in such a crisis that she’d hurt her child, nor do they provide resources for someone in need.

Pertman says further restricting abortion access, or overturning Roe v. Wade altogether, could result in more children being left at safe havens and not adopted the traditional way — with medical background and thorough health information.

There isn’t a national database that tracks the number of babies turned over through safe haven laws, but the National Safe Haven Alliance, a nonprofit that promotes the laws and provides resources to parents in need, collects figures from most states each year.

Slightly over 4,000 babies have been surrendered since the first law took effect in 1999, according to both the organization and the CDC, which put out a report in 2020.

The CDC found that a majority of infant homicides that take place on the day of birth are committed by young, unmarried mothers with lower education levels who had not sought prenatal care, and that they’re often associated with a hidden, unplanned pregnancy and with giving birth at home.

The study found that the overall infant homicide rate was 13% lower in the years since safe haven laws were adopted nationwide. The study compared data from 1989 to 1998 to data from 2008 to 2017. Every state had adopted safe haven laws by 2008.

The number of babies killed during their first day of life dropped by nearly 67%, according to the study. But most homicide victims were too old to have been relinquished under safe haven laws at the time of their deaths. In 11 states and Puerto Rico, only infants who are 72 hours old or younger can be relinquished to a designated safe haven, while 19 states accept infants up to 1 month old, and other states have varying age limits in their statutes.

The CDC recommends that states “evaluate the effectiveness of their Safe Haven Laws and other prevention strategies to ensure they are achieving the intended benefits of preventing infant homicides.”

A vast majority of child welfare advocates praise safe haven laws, saying they keep babies alive and safe when a birth parent isn’t able to care for them. The babies are adopted quickly, rarely going through foster care.

But many caution that safe haven placement as an alternative to abortion is flawed: It doesn’t consider the health and economic risks a woman faces in pregnancy, nor does it account for the risks of childbirth in the nation with the highest maternal mortality rate among developed countries.

Olson helps with an organization that advocates for safe haven laws and hopes more people learn about them.

“The biggest message I’ve been trying to send out is when you have a desperate situation, somebody will be there to help," Olson said.

"If you have access to money to take a plane or take a train or go somewhere where abortion is safe and legal, you'll do that," says Kim Wehle, professor at the University of Baltimore School of Law. She says if the Supreme Court guts Roe v. Wade, "you just might not have any option but to carry a child to term," which poses a burden to anyone who can't afford child care.
Copyright AP - Associated Press
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