I recently had a conversation with a young Washington DC staffer who assists with pro-life policy and is struggling with how to respond to those who will not see the reality of human life before birth. As an example, he said he was unsure what to say to someone who maintains that babies in the womb unable to breathe on their own are not fully human.
This is the same point made by Supreme Court Justice Sonya Sotomayor during oral argument in Dobbs v. Jackson Women’s Health. Sotomayor asked why viability – the age at which a baby is capable of surviving outside the womb – is not a “real line” by which to distinguish babies who can be legally protected and babies who can be slaughtered indiscriminately.
Justice Sotomayor then went on to liken prenatal children to patients who are “brain dead” and cannot breathe on their own. According to Sotomayor, just as persons who are declared brain dead can lawfully be removed from life support, so too can pre-viable babies (babies who cannot breathe on their own) be removed from their “life support,” i.e., their mothers. Ostensibly to bolster her argument, she said,
“There’s about 40 percent 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.*”
What? Sotomayor’s “spontaneous acts” conflict with the facts. If you touch the foot of an allegedly “dead brain” person and they recoil, that person is not dead! Response to pain or other stimuli indicates brain activity. This is true whether the person is already born or not yet born.
Two weeks ago, we got a call from the mother of a newborn who the hospital said was brain dead. Its representatives urged the mother to withdraw the baby’s ventilator. A few days later, the “brain dead” baby started moving in response to her mother’s touch, and our attorneys were able to get the hospital to continue treatment.
Not only is Sotomayor’s comparison between the pain response of “dead brain people” to children in their mother’s womb grossly inaccurate, the idea that healthy, developing babies are analogous to injured patients reveals her eugenic assumptions about human life. Planned Parenthood was founded on the idea that certain people are nothing less than “human weeds,” “defective stocks,” and “feeble-minded.” For over 100 years, PP has repeated the twisted mantra that such “unwanted” babies are pathogens whose forced removal is necessary and beneficial to society.
Sotomayor is just following the playbook.
The good news is that we will likely see one of three possibilities as the Court issues its ruling in Dobbs – all of which are vastly better than the current viability standard that Sotomayor and her pro-abort cohorts desperately want to hang on to.
The Court could:
1) Uphold the Mississippi statute, which would open the door to 15 week abortion bans across the country.
2) Overturn Roe v. Wade and leave it to individual states to protect babies in the womb. Not only would over half the states likely prohibit abortion altogether, but the Court’s farcical notion that abortion is a “fundamental constitutional right” would finally be…well…aborted.
3) Declare that babies in the womb are persons within the meaning of the Fourteenth Amendment and would therefore be constitutionally protected from abortion.
Life Legal’s briefs to the Supreme Court are available here and here. You can read more about the unworkability of the viability standard in our latest issue of Lifeline here.
*It is telling that Sotomayor stopped herself midsentence here. She started to say, “I don’t think that a response to…” and then, having been well-coached by her pro-abortion allies, changed course. What she meant is that just because a baby recoils in response to a scalpel or forceps touching its skin, that is not evidence that a baby feels pain. Apparently, Justice Sotomayor has never seen the film “The Silent Scream” which documents an 11-week old baby in the womb recoiling and trying to escape the blade-like tip of the suction instrument that will end the baby’s life. The film’s title comes from narrator and former abortionist Bernard Nathanson’s observation that the baby opened its mouth in a silent scream just before he was murdered.