A new development in the Baby Girl case has occurred--namely, the attempted adoption of the child by her biological father and stepmother and, alternatively, her paternal grandparents. More information is availiable here. This is something that Justice Sotomayor predicted could happen in the case, given that ICWA mandates placement preferences for adoption of Indian children that include the child's extended family. Slip Op. at 25.
The case remains troubling to me in a number of respects, most importantly its exceedingly narrow interpretation of ICWA. I also remain concerned, as I noted earlier, that sub silento termination of unmarried fathers' rights, as is allowed under South Carolina law, conflicts with the equal protection clause. Finally, I'm skeptical of the Majority's notion of abandoning children "in utero." Slip Op. at 16; see also Slip Op. at 2. I fully acknowledge that it can be harmful and distressing for a pregnant woman to be deserted by her partner, and that this can harm the child who is later born, but I am not sure that that is the same thing as abandoning a child. It seems to me that it may be necessary to assume a pro-life stance to get to this conclusion (although I think a parent's actions during pregnancy should certainly be relevant in a later proceeding regarding parental rights).