Supreme Court Justice Elena Kagan said during Wednesday’s oral argument in a case challenging Mississippi’s abortion law that “not much has changed” since the Roe v. Wade decision in 1973, but pro-life advocates disagreed with the reference to science.
When Roe was decided, fetal viability began at about 28 weeks of gestation. Thanks to medical advances, the fetus is now considered viable at 23 or 24 weeks and sometimes earlier: A baby girl born in Texas in 2014 at 21 weeks of pregnancy, weighing only 14.5 ounces, is reportedly thriving.
“The advances in science, technology and medicine since 1973 that point to the child’s humanity and in particular the science of fetal pain,” the pro-life Susan B. Anthony List said in a Wednesday statement. “The other side claimed that nothing has changed since 1973. They could not be more wrong.”
Enemy enemies sprang up after judges Kagan and Sonia Sotomayor questioned whether the landscape had changed since Roe and the 1992 Planned Parenthood v. Casey decision, which prevented states from banning abortions before fetal viability.
“I guess what strikes me when I look at this case is that you know not much has changed since Roe and Casey,” Judge Kagan said during oral arguments. “People think it’s right or wrong based on the things they always thought were right and wrong for.”
That may be true on the political front, but not on the scientific front, according to pro-life advocates.
They claim that nearly 50 years of medical advances have shifted the balance in their favor by improving the viability of premature infants by, for example, allowing physicians to treat conditions in the womb.
Seven years after Roe, doctors from the University of California, San Francisco performed the first successful fetal surgery. Such procedures are now more and more common in mid-pregnancy for the treatment of conditions such as spina bifida and heart defects. The unborn baby can also receive anesthesia for open fetal surgery.
“As a practicing diagnostic radiologist, I can attest that advances in ultrasound technology continue to amaze the medical community in terms of the unborn child’s humanity, a truth and medical reality that we can now see clearly in the earliest weeks of life,” said Dr. Grazie Pozo Christie, Senior Fellow in the Catholic Association.
The Mississippi Act of 2018, which is dealt with in the Dobbs v. Jackson Women’s Health case, prohibits most abortions after 15 weeks of pregnancy, in which all the major organs are formed, each finger moves separately, and the body responds to touch and taste, according to the pro-life Charlotte Lozier Institute.
“This case is before the Supreme Court today, in large part because Americans have seen the evolving science and increasingly want a voice on an issue of great moral consequence,” said Dr. Pozo.
Justice Kagan: “Not much has changed since Roe and Casey.” In fact, there has been great progress in science and medicine, as CLI’s Dr. David Prentice discussed in this recent article: https://t.co/jenGmijAeS
– Charlotte Lozier Institute (@LozierInstitute) December 1, 2021
During the oral argument, Mississippi Attorney General Scott Stewart cited 30 years of medical progress since the Casey decision, which led to setbacks by Judge Sotomayor.
She challenged his referral to fetal pain, a controversial medical and ethical issue. The American College of Obstetricians and Gynecologists believes that the fetus cannot feel pain until 24 weeks of pregnancy, while some researchers say the time frame is as early as 12 to 20 weeks.
Judge Sotomayor said that “the minority of people, the vast minority of doctors who believe that fetal pain exists before 24 or 25 weeks, are a huge minority, and one who is not at all well-founded in science.”
“So I do not see how it really adds anything to the discussion that a small fringe of doctors think that pain can be experienced before a cortex is formed does not mean that there has been the big difference since Casey,” she said.
However, a 2020 paper in the Journal of Medical Ethics said the evidence points in the direction of an immediate and unreflected pain experience mediated by the evolving function of the nervous system from as early as 12 weeks.
Dr. Pozo cited the paper as solid science that should not be denied.
Not only does medicine agree that fetal anesthesia should be administered for fetal surgery, a clear reflection of the medical consensus that unborn babies can feel pain, but like viability, the line that marks when they feel pain continues to tone earlier. ,” he said.
Dr. David Prentice, vice president of research at the Charlotte Lozier Institute, said Judge Sotomayor should “follow science.”
“Respectfully, we propose that Judge Sotomayor follow the science, which has not stood still since Roe was decided in 1973,” he said. “Modern research reveals that unborn babies feel pain at an early stage, and we see that science is in action regularly during fetal surgery, where doctors use analgesia in utero to prevent the unborn baby’s suffering.”
Judge Sotomayor also asked Mr Stewart about the mother’s health and asked: “When does a woman’s life and putting her in danger come into the calculation?”
She said the risk was “14 times greater for giving birth to a full-term baby than it is to have an abortion before viability,” and called the state’s stance on abortion a “religious point of view.”
Maternal mortality dropped dramatically from 607.9 deaths per 100,000 live births in 1915 to 12.7 in 2007, according to a study by the U.S. Health and Human Services Department.
The Centers for Disease Control and Prevention reported that mortality has increased slightly in the last 35 years, from 7.2 deaths per year. 100,000 live births in 1987 to 17.3 in 2017. The main causes of death were cardiovascular conditions and infection.