Infant safe haven laws: legislating the culture of life.

THE DISCOVERY OF DEAD AND discarded newborn infants seems to have become a regular aspect of life across the United States. Many will remember the infamous "prom mom" from New Jersey, but more ordinary cases--Baby Found in Parking Lot or Dumpster or Behind Dorm--are now familiar to us all. To many, it seems that something has gone terribly wrong with young women today.

The phenomenon of discarded newborns has triggered a widespread legislative response. Since 1999, 46 states have enacted infant "safe-haven" legislation. These laws offer mothers an alternative: Bring your newborn to a designated location and leave, no questions asked. Mothers who drop their babies at a safe haven can do so anonymously and with immunity from prosecution. The tag line for New Jersey's law captures the program's content and its sell: "No Shame. No Blame. No Names."

Safe-haven laws have enormous appeal. Newborns at risk are spared physical harm, young women are rescued from criminality, and politicians are seen as acting to solve a sordid social problem. The statutes are often referred to as "Baby Moses laws," and the biblical analogy seems just right: A loving mother gives up her infant so that he will be safe.

But here things get a bit more complicated. After all, Baby Moses was not set among the bulrushes because his mother was going to kill him. The threat to his life came from enemies in the larger world. In contrast, safe-haven legislation focuses on a more intimate source of danger. It is the brutal or reckless acts of mothers themselves from which infants now need to be saved. Thus New Jersey's imperative to pregnant women--"Don't Abandon Your Baby"--is not quite accurate. What New Jersey really means is: Don't kill your baby, please do abandon it, and the state will make that as easy and legal as possible.

Of course, history reminds us that there has always been some infant abandonment. Across time and cultures, parents who cannot or will not raise their children because the social or economic costs of doing so are too high find ways of disposing of them by some means or other. They set them out in marketplaces or, in the common practice throughout Catholic Europe in earlier centuries, leave them under cover of darkness at churches and foundling homes.

Nonetheless, the abandonment of newborns in 2006 disturbs and puzzles. After all, families in the U.S. are not starving, single mothers are less stigmatized, and adoption and foster care are available. What then is going on with these young women? And why do safe-haven laws make so little difference? For a while, infants are delivered to safe havens, but dead newborns regularly turn up in all the usual places.

At first glance, it may seem bewildering that any mother would not take the state up on its offer to leave an unwanted baby with impunity. There are, however, several explanations why this is not the case. To begin, many people simply don't know about the legislation. State after state has uncovered this problem and sought to increase and to popularize publicity. Even for mothers who do know, there are serious problems in implementing the scheme. Just how does a mother who has given birth by herself in a locked bathroom get her newborn safely out of her parents' house and to the hospital without being detected? Finally, there is a serious disconnect between safe-haven incentives and the characteristics of women the laws seek to attract. Almost all women who kill their babies on the first day of life have concealed their pregnancies; many are in denial and don't fully regard themselves as pregnant. By their lights, publicity urging mothers to give up their newborns has nothing to do with them.

But if safe-haven laws are not working to prevent infant deaths, what explains their popularity? Certainly, part of the impetus is an abiding respect for life--especially children's lives. As the New Jersey legislature stated, "This legislation is worthwhile if it saves even one infant's life." Yet the value of infant life does not entirely explain legislative enthusiasm. Infants in the U.S. are endangered by many life-threatening conditions, starting with congenital defects and low birth weight. Why, then, have political energies focused so intensely on this form of infanticide, given more prevalent and more preventable causes of infant mortality?

One explanation may be our fascination with mothers who kill. Grisly infant death is something a society attracted to violence can get worked up over. Maternal infanticide profoundly disrupts our sense of security and order, and safe-haven laws are an attempt to put things right.

I want to suggest, however, that something more is going on with safe-haven laws than concern, however genuine, over the practice of infant abandonment. There is a snug and interesting fit between safe-haven legislation and a culture whose politics are increasingly organized around the protection of unborn life. Safe-haven laws fit into a larger political frame that connects concerns about newborn deaths with abortion. After all, for some, the discovery of dead and discarded newborns comes as no surprise at all. The phenomenon simply proves what antiabortion advocates had been predicting all along: Women have crossed over a moral divide, and abortion has paved the way.

Safe-haven laws slipstream behind the language and ideology of abortion politics. This slipstreaming is easier following several decades of antichoice rhetorical achievements that have muddied distinctions between pregnancy and motherhood, fetus and child, and abortion and infanticide. In recent years, such achievements have been consolidated under a new rubric: the "culture of life." This is a belief system that starts at conception and ends at Terri Schiavo (with a serious detour avoiding the death penalty). Introduced in 1995 by Pope John Paul II in Evangelium Vitae, the phrase was quickly seized and pulled over from church doctrine to the (somewhat) more secular setting of American conservative politics: a plank in the Republican Party platform, a place of pride on the White House Web site. Since 2000, the culture of life has become the umbrella concept under which all regulated aspects of sex and reproduction--from abstinence to stem cells--are lodged. At its core, however, lies the protection of unborn life.

Safe-haven laws fit neatly into this campaign by shaping social understandings of women as untrustworthy. They reinforce the proposition that women who abort and mothers who abandon newborns are the same: Both kill babies. Anxieties about one category of immoral women--those who abort--fueled legislative efforts aimed at another--desperate women who kill their newborns. Their disregard for infant life was framed against an existing background of sympathy for fetal life. In this way, safe-haven laws influence attitudes not only toward mothers who kill their infants, but also toward women more generally. Who knows which young woman sitting on the bus is concealing a pregnancy and what she is thinking of doing about it? In this way, posters reminding women not to kill their babies cast doubt not only on women who are in fact pregnant, but on any woman who might be.

There is also a second unhappy feedback loop between the culture of life and the problem of infant abandonment. Many young women have absorbed the culture-of-life message that sex before marriage and abortion at any time are wrong. The result is that a small number of them become immobilized in a moral and practical dilemma where both pregnancy and abortion have become impossible choices. As psychologists make clear, these young women become frozen in their tracks, jarred into reality only at childbirth.

My claim here is not that antichoice politicians have promoted the background phenomenon of abandonment in order to bring all this about. No one wants newborns killed, however politically powerful infant death often proves to be. But what has been patiently and painstakingly put into place is an extensive matrix of concerns that identifies itself as the culture of life. A number of different dramas selectively play out against this backdrop and are then used to reinforce the essential culture of life value: the absolute impermissibility of abortion. Late-term abortions offered one such opportunity; murdered Laci Peterson, another; Terri Schiavo, still another. Surely, there will be others.

The explicit purpose of these laws is to save infants from Dumpsters. However, their rhetorical reach is broader, encompassing also the campaign against legal abortion. Safe havens' more enduring and subtle achievement may be therefore less criminological than cultural: the vindication and further extension into public consciousness of the view that abortion is murder. This outcome may be an unintended consequence of the legislation, even if, for some, it is a felicitous one. The phenomenon of infant abandonment, like the sad, exploited case of Terri Schiavo, has been an unexpected gift to those who oppose abortion. But in the culture of life, decent goals like preventing neonaticide are put into the subtle service of the movement's larger cause: protecting the unborn by every means possible. There are, however, reasons to think that this ideology--the absolute impermissibility of abortion has unintended costs as well as unintended consequences, and these are worth bringing to light in thinking about how a law that seems enlightened may have darker effects as well.

This article is reprinted from the Columbia Law Review. The full version can be found at www.columbialawreview.org/articles/index.cfm article_id=812.

CAROL SANGER is the Barbara Aronstein Black professor at Columbia Law School.