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The Myth of the Right to Privacy as Justifying Anonymity in Safe Haven Laws

Erik L. Smith



Proponents of safe haven laws often argue that a mother's fundamental privacy right entitles her to anonymity when abandoning her newborn to the state. That notion is a complete perversion of constitutional law. In Roe v. Wade,1410 U.S. 113 (1973). the Supreme Court held:

  • During the first trimester, the abortion decision must be left to the judgment of the woman's attending physician.
  • During the second trimester, the state may regulate abortion in ways reasonably related to maternal health.
  • During the third trimester of pregnancy (viability), the state may forbid abortion except where necessary to preserve the mother's health.2Roe at 163-165. The trimester definitions are not fixed, but are approximations, based on the physicians assessment of the fetus' viability.

In other words, by the end of the pregnancy, the mother's wishes are inferior to the state's interest in preserving the health of the infant. Accordingly, parents do not have a fundamental right to choose their method of childbirth, how they will surrender a child, or whether they will remain anonymous in doing so. The right to privacy for example, "does not encompass the right to choose a direct-entry midwife to assist with childbirth." Lange-Kessler v. Dept. of Education of the State of New York.3109 F.3d 137 (2nd Cir. 1997). Having open adoption records "does not impede traditional familial privacy rights such as marrying, having children, or raising children." Doe v. Sundquist.42 S.W.3d 919, 926 (Tenn. 1999). And “Because a birth mother has no fundamental right under the federal constitution to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child.” Does 1-7 v. State.5993 P.2d 822, 836 (Or. App. 1999). 


Even in abortions the state may require identifying information. For example, it is not unconstitutional to require a minor seeking an abortion to identify herself when asking the court to bypass notice to her parents:


"...[W]e do not find complete anonymity critical. H.B. 319 takes reasonable steps to prevent the public from learning of the minor's identity....H.B. 319, like many sophisticated judicial procedures, requires participants to provide identifying information for administrative purposes, not for public disclosure." Ohio v. Akron Center.6497 U.S. 502, 513 (1990).

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Copyright © Erik L. Smith.