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 CDC 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; 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 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 Fourteenth Amendment’s guarantees of “substantive due process” – much derided by Republicans and Alito – was an effort to put an end that practice. References to “safe havens” and the depleted domestic supply of adoptable babies are terrifying because this is exactly what the Fourteenth Amendment sought to curtail.