WASHINGTON — Supreme Court justices discussed key questions surrounding when life begins and the basis of abortion law Wednesday while revisiting the framework of the 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions for the first time in decades.
As part of the landmark Dobbs v. Jackson Women’s Health Organization case looking at whether all pre-viability bans on abortion are unconstitutional, the Supreme Court heard conflicting claims regarding international abortion law, fetal pain and the history of abortion in the U.S. during the course of oral arguments.
One claim that warrants a closer look was made about international abortion law in a significant exchange that occurred between Chief Justice John Roberts and Julie Rikelman, litigation director for the Center for Reproductive Rights, who was representing the abortion provider in the case.
U.S. Out of the Global Mainstream
Roberts said the 15-week ban put in place by the state of Mississippi in that case was “not a dramatic departure from viability” and “is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your — share that particular time period.”
“That is not correct about international law,” Rikelman replied. “In fact, the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier.”
Roberts followed up asking what she meant by “nominal lines earlier.”
“Some countries,” she said, “have a nominal line of 12 weeks or 18 weeks, but they permit legal access to abortion after that point for broad social reasons, health reasons, socio-economic reasons, so their regimes really aren’t comparable, and they also don’t have the same type — types of barriers that we have here.”
An analysis of international abortion law backs up the point made by the chief justice that U.S. law is out of step with the vast majority of countries. In 2017, The Washington Post fact-checked the claim that the U.S. is one of just seven countries in the world that permits abortion past 20 weeks of pregnancy and concluded that “this statistic seemed dubious at first, because it seemed extreme for just seven countries out of 198 to allow elective abortions after 20 weeks of pregnancy. But upon further digging, the data back up the claim.”
A July analysis from the Charlotte Lozier Institute found that “out of 50 European countries, independent states, or regions analyzed, 42 European countries allow abortion without restriction as to reason, otherwise known as elective abortion or abortion on demand. The remaining eight European countries, including Great Britain and Finland, require some reason to obtain an abortion ranging from most protective of life (to save the life of the mother or completely prohibited) to most permissive of abortion (socio-economic grounds) with various reasons in between (e.g., physical health, mental health).”
The Lozier Institute also noted that “out of the 42 European countries that allow elective abortion, 39 countries limit elective abortion to 15 weeks’ gestation or earlier. The majority of these 39 European countries set gestational limits for elective abortion at or before 12 weeks’ gestation.”
Following oral arguments Wednesday, Charlotte Lozier Institute Executive Director Stephen Billy said in a statement that he was “stunned to hear the abortion industry counsel challenge Chief Justice Roberts on whether or not U.S. abortion law is extreme. The Chief Justice correctly cited CLI research that shows how Roe puts the United States in the same class with China and North Korea, allowing abortion-on-demand until the day of birth. Does the abortion industry not read The Washington Post?”
Another notable claim that was made during the course of oral arguments came from Justice Sonia Sotomayor in her questioning of Mississippi Solicitor General Scott Stewart. He referenced advancements “in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like.”
Sotomayor then claimed that there is only “a gross minority of doctors who believe fetal pain exists before 24, 25 weeks, it’s a huge minority and one not well founded in science at all.” She went on to compare an unborn child to a brain-dead individual saying, “there’s about 40% of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead-brain people. So, I don’t think that a response to — by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness.”
Shortly following oral arguments, the Charlotte Lozier Institute highlighted the fact that Dr. Stuart Derbyshire, one of the fetal pain experts whose 2010 work was cited in the abortion providers’ brief in the case and who was also referenced by The New York Times in 2013 as a “leading voice against the likelihood of fetal pain” has since changed his stance on the issue and published a peer-reviewed paper last year in the Journal of Medical Ethics concluding, “the evidence, and a balanced reading of that evidence, points toward an immediate and unreflective pain experience mediated by the developing function of the nervous system from as early as 12 weeks.”
In its friend-of-the-court brief in the Dobbs case, the Charlotte Lozier Institute pointed out that “in considering use of anesthesia for invasive medical procedures performed on the fetus, a recent review of the evidence concluded that from the 13th week onward, ‘the fetus is extremely sensitive to painful stimuli,’ making it ‘necessary to apply adequate analgesia to prevent [fetal] suffering.’” The brief cited a June 2021 study which found that “a fetus undergoing heart surgery at 21 weeks post-fertilization also reacted with facial expressions showing a conscious experience of pain upon injection of anesthetic into the thigh.”
Another puzzling element of Sotomayor’s claim that fetal pain does not exist prior to 24 weeks is the fact that babies have been born as early as 21 weeks. According to her reasoning, these obviously viable premature infants do not feel pain. The New York Times reported in 2015, that a “study, of thousands of premature births, found that a tiny minority of babies born at 22 weeks who were medically treated survived with few health problems, although the vast majority died or suffered serious health issues. Leading medical groups had already been discussing whether to lower the consensus on the age of viability, now cited by most medical experts as 24 weeks.”
The Charlotte Lozier Institute’s brief noted recent studies showing “fetuses delivered prematurely (as early as 21 weeks) show clear pain-related behaviors. But even more tellingly, the earlier the infants are delivered, the stronger their response to pain, suggesting that later-developing cortical circuits, rather than enabling pain perception, moderate or even inhibit conscious suffering.”
Dr. Grazie Pozo Christie, a pro-life physician and policy adviser for The Catholic Association, released a statement Friday in response to Sotomayor’s comments.
She said, “As a practicing diagnostic radiologist, I can attest that advances in ultrasound technology continue to astonish the medical community as to the humanity of the unborn child, a truth and medical reality that we can now see clearly in the earliest weeks of life.”
Christie added that the comparison of “an unborn child to a brain-dead person or a corpse flouts science which tells us that at 15 weeks’ gestation, a baby’s organs are fully formed, her heart pumps 26 quarts of blood a day, and her lungs are already practicing drawing breath. This case is before the Supreme Court today in large part because Americans have seen the evolving science and increasingly want a voice in a question of great moral consequence.”
The Supposed “Common Law” Origins of Abortion
Julie Rikelman, the abortion provider’s attorney, made a claim regarding the history of abortion law in the U.S. during the oral arguments in an exchange with Justice Samuel Alito. He asked her whether “any state constitutional provision recognize that abortion was a right, liberty, or immunity in 1868, when the 14th Amendment was adopted?” She replied, “No, Your Honor, but it had been allowed under the common law for many years.”
He asked, “Does any judicial decision at that time or shortly or immediately after 1868 recognize that abortion was a right, liberty, or immunity?” She said there were “state high court decisions shortly before then, Your Honor, talking about the ability of women to end a pregnancy before quickening.”
Later, Alito pointed out that the brief for the American Historical Association says that “abortion was not legal before quickening in 26 out of 37 states at the time when the 14th Amendment was adopted.” Rikelman attributed that to “a discriminatory view that a woman’s proper role was as a wife and mother, a view that the Constitution now rejects” and said that “at the founding, women were able to end their pregnancy under the common law.”
Alito then asked Rikelman for “the principal source that the court relied on in Roe for its historical analysis,” asking “Who was the author of that of that article?” She told him she could not recall the author. A friend-of-the-court brief in the Dobbs case from Robert George, McCormick professor of jurisprudence at Princeton, and John Finnis, Biolchini Family Professor of Law Emeritus at the University of Notre Dame, questioned the credibility of Roe’s principal source for historical analysis: Cyril Means, who was general counsel for the National Association for the Repeal of Abortion Laws.
Their brief points out that even Roe’s legal team expressed their doubts about the validity of Means’ historical claims as they wrote in a 1971 memo that “Means’ ‘conclusions sometimes strain credibility’ and ‘fudge’ the history but ‘preserve the guise of impartial scholarship while advancing the proper ideological goals.’”
The brief by George and Finnis noted that “while prevailing (though not universal) 19th-century common law made only post-‘quickening’ abortion indictable, the common law always regarded pre-quickening abortion as ‘an action without lawful purpose,’ as Chief Justice [Lemuel] Shaw mildly put it in 1849, such that abortions accidentally causing consenting mothers’ deaths constituted murders. So even pre-quickening abortion was always a kind of inchoate felony for felony-murder purposes.”