Sotomayor's Scientific (Un)truths on Fetal Pain
Part of the discussions during the oral arguments included statements regarding the humanity of unborn children as known through scientific research. One such discussion involved the idea of when an unborn child is capable of experiencing pain.
Justice Sotomayor asked Mississippi Solicitor General Scott Stewart to explain why believed that "advancements in medicine" make the overturning of Roe v. Wade necessary. Stewart answered, “I think it is an advancement in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like and is fully human very early.”
Sotomayor cut Stewart off, saying, “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.” She continued, “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.”
In another statement, Sotomayor suggested that the movement of a fetus recoiling from pain is similar to reflexes in dead bodies.
“Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli,” Sotomayor said.
“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,” the justice said.
Justice Elena Kagan echoed Sotomayor's comments, stating that "not much has changed since Roe and Casey." Such statements ignore scientific developments that continue to point towards the humanity of the unborn.
Dr. Stuart Derbyshire, one of the world's leading neuroscientists, changed his stance on fetal pain in a peer-reviewed paper released in 2019. In that paper, he states that he believes fetal pain is possible "from as early as 12 weeks." Interestingly, Derbyshire's earlier work is cited by the abortion industry's brief in the Dobbs case. They did not acknowledge his more recent research, however.
The Charlotte Lozier Institute summarized scientific developments in this area when it called on the American College of Obstetricians and Gynecologists to reconsider their stance on fetal pain. In their statement, CLI wrote,
"For decades, most neuroscientists have operated by the axiom of ‘cortical necessity.’ This is the idea that a cerebral cortex – the thin, convoluted, outer layer of the brain that activates between 24 and 30 weeks’ gestation – is required to perceive pain. There has long been evidence to the contrary. But accumulating studies, especially two from 2016, strongly imply that cortical necessity is incorrect: evidence shows subcortical (lower) brain structures that develop much earlier than 24 to 30 weeks are sufficient for pain perception."
Dr. Grazie Pozo Christie, M.D., who co-authored a science-based amicus brief in this case, responded to Sotomayor's statements in an interview with CNA.
“To compare 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,” Christie said. “As recently as last year, doctors in the Journal of Medical Ethics wrote, 'Current neuroscientific evidence supports the possibility of fetal pain before the 'consensus' cutoff of 24 weeks' and may be as early as 12 weeks.”
“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,” Christie added.
Similar to the constitutionality of abortion, the science regarding the humanity of unborn children was not a major topic of discussion during oral arguments. Nonetheless, the humanity of the unborn child is at the center of the abortion issue. A unique human being separate from the mother and the father is created at conception, and that innocent human being deserves a chance at life.
