While last week's oral arguments in Dobbs v. Jackson were memorable for how favorable they were to the pro-life side, it's also worth noting that they exposed some of the worst pro-abortion arguments there are, thanks to Justice Sonia Sotomayor. The law being considered was Mississippi's Gestational Age Act, which prohibits most abortions after 15 weeks.
This abortion case provided a unique opportunity in that one could listen into oral arguments. A transcript was also available.
Early on in the line of questioning from justices, Sotomayor bent over backwards to try to dismiss claims that unborn children can feel pain in the womb. The Mississippi solicitor general, Scott Stewart, had offered up the science of studying fetal pain as one of the advancements made since 1992's Planned Parenthood v. Casey.
Justice Sotomayor admonished Stewart, claiming that it's "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," later adding it was "a small fringe of doctors."
It is because of medical advancements that many pro-lifers are optimistic about overturning Roe through Dobbs, and have been even before the oral arguments took place.
Granted, justices aren't citing their sources from the bench, and Sotomayor is wrong, regardless. Science not only demonstrates that unborn children can likely feel pain in the womb, but that they can at as early as 12 weeks.
Here's the thing though. The work the brief cited is from 2010. And, in 2020, Dr. Derbyshire actually updated his position, which is reflected in a peer-reviewed paper published in BMJ's Journal of Medical Ethics.
That 2020 paper, "Reconsidering fetal pain," noted that "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."
The Charlotte Lozier Institute (CLI) also pointed Townhall to its report from August of this year, "The ACOG Should Reconsider Fetal Pain." Dr. Maureen Condic, a a CLI associate scholar and international expert on human embryology, also wrote about in an article for National Review from last month.
Dr. David Prentice, CLI’s vice president of research and an expert on stem cell research, had the following statement, with original emphasis.
"Respectfully, we suggest that Justice Sotomayor follow the science, which has not stood still since Roe was decided in 1973. 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," he said.
Then came this line of questioning from the justice:
JUSTICE SOTOMAYOR: How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it --
MR. STEWART: Respectfully --
JUSTICE SOTOMAYOR: -- because it assumes that a fetus's life at -- when? You're not drawing -- you're -- when do you suggest we begin that life?
MR. STEWART: Your Honor, I -- aside from --
JUSTICE SOTOMAYOR: Putting it aside from religion.
MR. STEWART: I -- I'll -- I'll try to-- I think there might be more than one question. I'll do my very best, Justice Sotomayor. I -- I think this Court in Gonzales pretty clearly recognized that before viability, we are talking with unborn life with a human organism. And I think the philosophical questions Your Honor mentioned, all those reasons, that they're hard, they've been debated, they're -- they're -- they're important, those are all reasons to return this to the people because the people should get to debate these hard issues, and this Court does not in that kind of a circumstance --
There was lots of interruptions, as there often are, but the gist of it is that Justice Sotomayor thinks the pro-life position is a religious one. It's worth noting that Justice Sotomayor claims to be a Catholic, though she holds a pretty clear pro-abortion stance when it comes to her judicial record on decisions, as well as past statements and legal work.
Regardless of what one's religious view is, it's biology that teaches us life begins at conception, when a unique life with its own set of DNA is formed.
Justice Sotomayor's line of questioning also leaves out pro-lifers who hold such a position for reasons other than religious ones. It also leaves out pro-lifers with no religion at all.
Unfortunately, this is an oft-repeated talking point, something Catholics for Choice propagated further, though they were quickly proved wrong.
??55.8 million Americans with no religious affiliation (Source: Scientific American)— Secular Pro-Life (@secularprolife) December 3, 2021
??Among the unaffiliated, 23% say abortion should be illegal in all or most cases (Source: Pew)
??55.8 million times 0.23 is 12.8 millionhttps://t.co/KfxHaChIyV
You can read about the perspective of one such person, with Monica Snyder of Secular Pro-Life's reaction to Justice Sotomayor's remarks in a Townhall column published on Sunday.