One of the most arresting lines in Justice Samuel Alito’s 98-page draft opinion reversing Roe v. Wade is a footnote that didn’t really surface until the weekend. A throwaway footnote on Page 34 of the draft cites data from the Centers for Disease Control and Prevention showing that in 2002, nearly 1 million women were seeking to adopt children, “whereas the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted has become virtually nonexistent.” In response to the outrage and some misinformation, the conservative legal industrial complex went to great lengths to downplay it as a trivial footnote in a draft opinion, and to insist that Alito was citing the CDC and not himself and that the note appears in a roundup of “people are saying”–type arguments against abortion.
True. But the footnote reflects something profoundly wrong with the new “ethos of care” arguments advanced by Republicans who want to emphasize compassion instead of cruelty after the Dobbs v. Jackson Women’s Health fallout. Footnote 46, quantifying the supply/demand mismatch of babies, follows directly on another footnote in the opinion approvingly citing the “logic” raised at oral argument in December by Justice Amy Coney Barrett, who mused that there is no meaningful hardship in conscripting women to remain pregnant and deliver babies in 2022 because “safe haven” laws allow them to drop those unwanted babies off at the fire station for other parents to adopt.
Second only to the creeping chatter of state birth control bans, the speedy pivot to celebrating forced birth and adoption is chilling. It’s chilling not just because it discounts the extortionate emotional and financial costs of childbirth and the increased medical risks of forced childbirth. It’s chilling because it lifts us out of a discussion about privacy and bodily autonomy and into a regime in which babies are a commodity and pregnant people are vessels in which to incubate them. If this sounds like a familiar, albeit noxious, economic concept, it’s because it is.
The economics of chattel slavery itself reflects a long, sordid history of using women’s bodies to incubate babies for the benefit of others, and it’s no exaggeration to say that the 14th Amendment’s guarantees of “substantive due process”—much derided by Republicans and Alito—was an effort to put an end to that practice. References to “safe havens” and the depleted domestic supply of adoptable babies are terrifying because this is exactly what the 14th Amendment sought to curtail.
The 14th Amendment’s much-maligned “substantive due process” protections for family liberty and autonomy and child-rearing were intended to protect former slaves from the very practice of allowing the state to violate your marriage, impregnate your wife, and steal your babies in order to serve the interests of white masters. As NYU law school professor Peggy Cooper Davis noted in a 1993 law review article, “Neglected Stories and the Lawfulness of Roe v. Wade,” that later became her book, Neglected Stories, the 14th Amendment was animated by anti-slavery ideas about the very nature of family and liberty. You can deride women, families, and privacy as lacking any historical or textual constitutional protection all you want, but according to Davis’ research on the 14th Amendment’s debates and motivations,
The Bill of Rights, with its commands that government respect the rights of people to be secure in their homes; safeguarded against unwarranted or coercive investigation or cruel punishment; unrestrained and unregulated in their worship and their speech; and able to assemble and be heard in the processes of governance—this Bill of Rights was an appropriate constraint on the power of government for a free people. But it did not define freedom. Freedom could not be fully understood by reasoning from the constraints the first eight Amendments imposed upon the power of the collective. Freedom had to be understood from the inside.
And this version of freedom was constructed based on a deep and horrifying understanding of the inside of the stolen family and autonomy rights denied to enslaved people. As she explains:
Drafters and advocates of the Fourteenth Amendment had vivid impressions of what it meant to be denied rights of family, for the denial of those rights was a hallmark of slavery in the United States. These men and women regarded the denial of family liberty as a vice of slavery that inverted concepts of human dignity, citizenship and natural law. And they regarded the Fourteenth Amendment as the instrument with which to re-enshrine family liberty as an inalienable aspect of national citizenship and natural law.
So while Alito scoffs at unenumerated rights that are “not mentioned in the Constitution,” Davis urges that their very absence from the ancient traditions, treatises, and doctrines he so venerates are the problem; these are traditions that afforded freedom to men, and allowed women and Black people to be reduced to property valued only for economic outcomes. These freedoms include the right to marry, because as Davis points out, “the laws of every slave-holding state made it impossible for a slave to enter a legally binding marriage, and the laws of every slave-holding state permitted the separation, by sale or otherwise, of slaves who considered themselves husband and wife.” She cites abolitionist scholar William Goodell, writing in 1853 that “a slave cannot even contract matrimony; the association which takes place among slaves, and is called marriage, being properly designated by the word contubernium—a relation which has no sanctity, and to which no civil rights are attached.”
Davis quotes Henry Bibb, a former slave who married his “wife” in a ceremony that went unrecognized under law, and who learned years later that she had become “the mistress of a slaveowner and mother of several of the slaveowner’s children.” Another enslaved man, Moses Grandy, watched his “wife” being taken past him in chains to be sold. When he asked what she had done wrong, the man entrusted with her sale told Grandy:
She had done nothing, but that her master wanted money. He drew out a pistol, and said that, if I went near the wagon on which she was, he would shoot me. I asked for leave to shake hands with her, which he refused, but said I might stand at a distance and talk with her. My heart was so full that I could say very little. … I have never seen or heard of her from that day to this. I loved her as I loved my life.
It wasn’t simply that there was no lawful right to marry; removing babies from their biological parents to be used by others lay at the very heart of the system of slavery. As Davis writes: “The violation of family was repeated on American soil and in every subsequent generation of slaves. That violation was fundamental to the character of American slavery; it began in the claim of ownership that superseded parental bonds.” She quotes from the Narrative of William W. Brown, which opens “with a reminder that each generation of slavery begins with the theft of an infant from its parents”:
I was born in Lexington, KY. The man who stole me as soon as I was born, recorded the births of all the infants which he claimed to be born [as] his property, in a book which he kept for that purpose. My mother’s name was Elizabeth.
As Davis reminds us, “when an infant was designated slave, it was stolen from parental care and control and claimed—like its mother and, perhaps, like its father—as a commodity.” She quotes Dolly Harris, a runaway slave, saying that “when I was separated from my husband I thought it was a dreadful thing … but when they came and tore my child from me, it would have been easier for me to have died than to endure it.”
This cruelty was the point, sure, but so was the forced birth and separation. Davis writes that “Frederick Douglass told of a slaveholder who was only able to purchase one slave, so he bought a woman as a breeder, hired a married man to live with her, and netted twins. Another former slave reported that sixty females were kept on his plantation solely for breeding with white men, producing twenty to twenty-five slaves a year to be sold as soon as they were ready for market.”
This indictment of sins against liberty was spoken aloud in the halls of Congress. Rep. T.D. Eliot of Massachusetts put it this way in 1863, debating the Freedmen’s Bureau bill:
Slavery cannot know a home. Where the wife is the property of the husband’s master, and may be used at will; where children are bred, like stock, for sale; where man and woman, after twenty years of faithful service from the time when the priest with the owner’s sanction by mock ceremonies pretended to unite them, are parted and sold at that owner’s will, there can be no such thing as home. Sir, no act of ours can fitly enforce their freedom that does not contemplate for them the security of the home. (emphasis mine)
In short, those who produced the 14th Amendment deplored forcing women to give birth so their babies could be raised by others for the same reason it rejected the idea that marriage and child-rearing were only available to white people: It was an outrage against decency, liberty, and democracy and, yes, if you still care at all about such matters, an affront against their conception of God as well.
The argument that forced birth is justified because other people can have enjoyment of the resulting children sends us tumbling deeper down the rabbit hole into commodifying babies and conscripting their mothers. This is hardly a practice that ended with slavery. Recall that removing babies from their parents was the animating theory behind the Canadian residential school atrocities and that, as Rebecca Nagle notes of Alito’s claims about the domestic baby supply, “for decades, the adoption industry has filled this gap disproportionately with children from communities of color—first through international adoption and now foster care.” Recall, too, that some of the migrant children who were taken from their families and then irretrievably “lost” at the southern border under the Trump administration’s barbaric family separation regime were placed with allegedly deserving Christian families.
If you believe in fetal personhood, or that “abortion is never medically necessary to save a woman’s life,” while directing shrinking resources toward parental leave, child hunger, health care, and poverty, and while threatening to cut off contraception access, you must justify forcing women to carry pregnancies to term regardless of the dangers to their own health and lives, regardless of cost, and regardless of the misery they or their children may suffer. One way around that thorny ethical dilemma is to simply assert that such children will be efficiently transferred to alternate parents who will value them.
But recall that some of the same groups clamoring for more “domestic” babies to be adopted by deserving families have sought to make it impossible for same-sex parents, or even non-Christian parents, to adopt them. And remember, Black babies cost less to adopt than other children—a “solution” to the perpetual mismatch between the supply of, and demand for, Black kids. So let’s please agree that, in the eyes of this very same group, not all babies are created equal and also that not all prospective parents are either.
Alito’s “domestic supply of infants” footnote might be buffed away by the time we get a final opinion in Dobbs. But it bespeaks a fundamental and cruel misunderstanding of autonomy and liberty rights, and a return to something far more pernicious. Forcing pregnant people to carry to term for the benefit of others isn’t a gentle or neutral recalibration of fetal personhood rights against maternal liberty interests; it is the very definition of subjugation, which is “deeply rooted in this Nation’s history and tradition” in ways the 14th Amendment actually sought to correct.