Supreme Court Justice Elena Kagan said during Wednesday’s oral arguments in a case challenging Mississippi’s abortion law that “not much has changed” since the 1973 Roe v. Wade decision, but pro-life advocates disagreed, citing the 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 gestation, weighing just 14.5 ounces, is reportedly thriving.
“The advances in science, technology, and medicine since 1973 that point to the humanity of the child and in particular the science of fetal pain,” the pro-life Susan B. Anthony List said in a Wednesday statement. “The other side claimed nothing has changed since 1973. They couldn’t be more wrong.”
Pro-life advocates jumped in after Justices Kagan and Sonia Sotomayor raised doubts about whether the landscape had changed since Roe and the 1992 Planned Parenthood v. Casey decision, which barred states from prohibiting 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,” Justice Kagan said during oral arguments. “People think it’s right or wrong based on the things that they have always thought it was right and wrong for.”
That may be true on the political front but not on the scientific front, according to pro-life advocates.
They argue that nearly 50 years of medical advances have swung the balance in their favor by improving survivability for premature infants by, for example, allowing doctors to treat conditions in the womb.
Seven years after Roe, University of California San Francisco doctors performed the first successful fetal surgery. Such procedures are now increasingly common midpregnancy to treat conditions such as spina bifida and heart defects. The unborn baby may also be administered anesthesia for open fetal surgery.
“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,” said Dr. Grazie Pozo Christie, a senior fellow for The Catholic Association.
The 2018 Mississippi law at issue in Dobbs v. Jackson Women’s Health Organization bans most abortions after 15 weeks of gestation. At this point, all the major organs have 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 in a question of great moral consequence,” said Dr. Pozo.
During oral arguments, Mississippi Solicitor General Scott Stewart cited 30 years of medical advances since the Casey decision, prompting pushback from Justice Sotomayor.
She challenged Mr. Stewart’s reference to fetal pain, a contentious medical and ethical issue. The American College of Obstetricians and Gynecologists holds that the fetus cannot feel pain until 24 weeks of gestation, though some researchers say the time frame is as early as 12 to 20 weeks.
Justice Sotomayor said “the minority of people, the gross minority of doctors who believe fetal pain exists before 24 or 25 weeks, is a huge minority and one not well-founded in science at all.”
“So I don’t see how that really adds anything to the discussion, that a small fringe of doctors believe that pain could be experienced before a cortex is formed, doesn’t mean there has been that much of a difference since Casey,” she said.
However, a 2020 paper in the Journal of Medical Ethics said the evidence points toward an immediate and unreflective pain experience mediated by the developing function of the nervous system from as early as 12 weeks.
Dr. Pozo cited the paper as solid science that shouldn’t be denied.
“Not only does medicine agree that fetal anesthesia be administered for fetal surgery, a clear reflection of the medical consensus that unborn babies can feel pain, but like viability, the line marking when they feel pain continues to inch earlier,” he said.
David Prentice, vice president of research at the Charlotte Lozier Institute, said Justice Sotomayor should “follow the science.”
“Respectfully, we suggest that Justice Sotomayor follow the science, which has not stood still since Roe was decided in 1973,” he said. “Modern research is revealing that unborn babies do feel pain at an early stage, and we see that science in action regularly during fetal surgery, in which doctors apply analgesia in utero to prevent the suffering of the unborn child.”
Justice Sotomayor also quizzed Mr. Stewart about the health of the mother: “So when does the life of a woman and putting her at risk enter the calculus?”
She said the risk was “14 times greater to give birth to a child full-term than it is to have an abortion before viability.” She called the state’s position on abortion a “religious view.”
Maternal mortality fell dramatically from 607.9 deaths per 100,000 live births in 1915 to 12.7 in 2007, according to a study by the Health and Human Services Department.
The Centers for Disease Control and Prevention reported that the mortality rate has ticked up slightly in the past 35 years, from 7.2 deaths per 100,000 live births in 1987 to 17.3 in 2017. The main causes of death were cardiovascular conditions and infection.