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The Supreme Court of the United States is reviewing several States’ pro-life laws, including those passed by Mississippi, Kentucky, and Texas. Just this week, SCOTUS ruled Texas’ heartbeat ban able to stay in effect (as it has since September), saving hundreds of lives every day. Having recently heard oral arguments, the Court will review the varying States’ laws, which not only protect women’s health but also preborn children’s Constitutional right to life as early as six weeks gestation. The Court will consider the constitutionality of such laws which protect lives before viability when preborn babies are considered able to survive outside the womb. Ultimately, SCOTUS must evaluate its own flawed viability standard, arbitrarily established in Roe v. Wade, which has drastically changed from 28 weeks since the 1970s.

Inevitably, the Court’s review must involve medical and scientific facts including gestational development. Distinct human life with his or her own DNA and blood type begins at conception when the egg is fertilized, even before implantation in the womb. Terms such as “embryo” and “fetus” describe the age of development, much like “toddler” or “teen.” The embryo stage ends as the fetal stage begins at 8 weeks, when remarkably, babies already have over 90% of anatomy as developed adults. During the first trimester, or 12 weeks, babies already have a heartbeat, brain activity, nervous system and organ function, gender, and identifiable reproductive anatomy, fingerprints, right- or left-hand dominance, the ability to grasp and react to touch, and even feel pain

States’ pro-life laws have sought legal challenges in order to protect women’s and babies’ lives, as there is no current legal precedent for a constitutional right to specific types of abortion procedures. Mississippi’s Dobbs v. Jackson Women’s Health Organization case involves the State’s Gestational Age Act, which, like Kentucky’s law, protects preborn lives after 15 weeks gestation, prohibiting second-trimester Dilation & Evacuation abortions, which increase risks to women’s health and lives as gestational age advances and forcefully dismember preborn babies in excruciating pain

Fetal pain at 15 weeks is real

Despite abortion activists’ efforts to dehumanize fetuses, scientific fact shows preborn babies experience even more sensitive responses than adults to painful, noxious stimuli. In addition to protecting babies from six weeks, Texas’ law requires more humane “fetal demise” to stop the baby’s heart via injection before dismemberment. Planned Parenthood abortionists even admitted in previous court testimony they dismember and harvest live, viable babies, refusing to use such fatal drugs which render fetal body parts unusable for lucrative scientific experimentation. The humanity of the preborn is not only proven by the grotesque, illegal sale of their organs, but also by early abortion procedures including the identification of babies’ body parts to check no parts were dangerously left inside the mothers, risking infection.

Mississippi Attorney General Scott Stewart argued the fact babies feel pain long before Roe’s arbitrary “viability” standard set at 24 weeks provides additional basis for public interest to protect their lives at much earlier gestational ages. Prominent neurologist, Dr. Stuart Derbyshire, a former leading voice against the possibility of pre-viability fetal pain who changed his position due to scientific advancements, confirmed studies show babies feel pain as early as 12 weeks, even before the cortex is fully developed. Dr. David Prentice, Charlotte Lozier Institute vice president of research, cited it is also standard medical practice to administer anesthesia to babies as patients during fetal surgeries “to prevent the suffering of the unborn child.”

Dr. Grazie Pozo Christie added,

“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.” 

Shockingly, during oral arguments, Justice Sotomayor not only dismissed current science but also any concern for preborn babies’ intense pain response, comparing them to “braindead people,” inaccurately suggesting it does not indicate consciousness, despite studies proving babies respond to touch and sounds, dream, have memory, and demonstrate numerous remarkable abilities. Even in the first trimester, babies can be seen on ultrasounds recoiling in desperate, futile attempts to evade sharp, deadly abortion devices. Sotomayor’s misguided opinion alarmingly also implies people with disabilities, hospitalized patients, and those with severe medical conditions have less human rights. Dr. Prentice cautioned Justice Sotomayor should “follow the science, which has not stood still since Roe was decided in 1973.” 

Live Action president Lila Rose added,

“Justice Sotomayor’s calloused disregard for the preborn is matched with stunning disinformation as she denies the fact that babies in their mothers’ womb can feel pain. These preborn children can feel pain, and at 15 weeks, do feel immense pain as they are dismembered alive, in a D & E abortion, in which an abortionist uses forceps with metal teeth to tear them into pieces, limb from torso, and crush their heads.”

Such human rights abuse not only exposes the inhumane atrocities of abortion procedures, but also the false premise that human rights begin at any other point than when life begins at conception. Human rights should not be determined by a person’s level of development, ability, or dependency. It is equally wrong to end the life of a developing preborn child as it is to kill a developing, dependent infant or toddler, or a person of any age, with a disability, or any medical condition dependent on care rendered. As it is wrong to discriminate against lives based on ability, it is wrong to discriminate based on age. 

Viability is a moving line

Though SCOTUS has previously ruled States cannot restrict abortion before 24 weeks, the Court upholding the current States’ laws will allow pre-viability abortion bans, which more States are prepared to follow such precedent with similar “heartbeat laws” or enact further abortion restrictions. Current standards of “viability” fail to recognize medical advancements. Viability has moved more than one week earlier every decade. Premature babies born as young as 21 weeks have survived and thrived years later. In fact, approximately 70% of preemies born at just 21 or 22 weeks survive if provided healthcare. Tragically, however, 75% receive no treatment, despite parents often pleading for healthcare. Abortion laws violate human rights of preborn babies not deemed “viable” and defy countless medical miracles and remarkable medical advances in technologies and life-saving treatments. 

Many in the abortion industry admit viability is a subjective and exploitable construct. Planned Parenthood abortionist Colleen McNicholas testified,

“Viability is a complicated medical construct…that could be at any point.”

Arbitrarily determining fluid “viability” not only fails to keep up with cutting-edge scientific breakthroughs, but also fails to provide a reliable legal standard, as babies’ viable age also depends on geography or socio-economic status. Unlike accurately defining human rights at the scientifically fixed point when distinct life begins at conception, “viability” violates equality and discriminates against lives without wealth or regional access to advanced medical care. All parents and children should be provided equal healthcare options, not just those able to afford or access life-saving treatments.

By contrast, to serve abortion’s actual objective for lucrative profits, activists have changed mantras from “safe, legal and rare” to “abortion on demand,” grotesquely even beyond viable ages, and despite overwhelming majorities of Americans want more restrictions and health and safety standards. Despite claiming to champion women’s interests, abortion advocates actually repeal laws that protect health and safety. Planned Parenthood was already exposed for illegally altering abortion procedures, harming women’s health, and brutally tearing off limbs of live, viable babies in order to illegally evade partial-birth abortion bans. 

Appallingly, Congressional House Democrats recently passed a bill that legalized abortion through all 9 months with no restrictions, even including barbaric partial-birth abortion, which deliberately endangers women to deliver babies in breech position to cut their necks and suction their brains. Further, while pro-life laws protect babies born alive after botched abortions, House Democrats have repeatedly voted against such protections, despite claiming to advocate “healthcare for all.” 

Abortionists’ previous testimony confirmed delibertate live births, and nurses have witnessed daily inhumane atrocities, including infanticide, babies’ toes curling in pain as abdomens or cranial soft spots were impaled with instruments, babies drowned in saline, harvested while alive, or left to die alone in freezers or disposal bins.

Abortion activists deceptively try to justify late-term abortion by supporting discriminatory abortions of babies with disabilities and exploiting women with high-risk pregnancies. However, such views violate equality and defy science, as anomalies can be misdiagnosed, treated with extraordinary medical advances such as fetal surgeries, or remarkably even self-correct in utero. The Supreme Court has failed to ban discriminatory abortions, and Justice Thomas’ prior dissent warned abortion “developed alongside the eugenics movement,” and eugenics goals are “not merely hypothetical,” as minorities, females, and babies with disabilities are still disproportionately targeted and killed. Ruth Bader Ginsburg admitted when Roe was decided, “There was concern about growth in populations we don’t want too many of.”

Informed consent matters

Further, most late-term abortions are sadly elective, with healthy mothers and babies. Even in pregnancies with health risks, it is safer for both mother and child to deliver the baby early through birth or C-section. Despite dishonest propaganda, abortion is never medically necessary and is actually a longer procedure with increased risks and harm to women’s physical and mental health. Both patients, mother and child, deserve safe healthcare with dignity. Even for babies with terminal conditions, perinatal hospice provides compassionate care. Terminal babies have even saved other babies’ lives through organ donation. Every life has value and purpose. Frank Stephens, a man with Down syndrome, testified before a congressional committee, “We are giving the world a chance to think about the ethics of choosing which humans get a chance at life.”

Disturbingly, however, parents of children with disabilities are often pressured to abort without being fully informed, nor given the time or supportive resources to make an informed decision, which often encourage them to be able to choose life. Similarly, abortion activists oppose pro-life laws requiring women be offered ultrasounds to be more fully informed. In fact, 80% of women choose life if provided a sonogram, witnessing the humanity of their developing child, thus exposing the agenda of the abortion industry to exploit women for profit, violating women’s right to be properly informed. 

Alarmingly, 84% of women are not fully informed, and approximately 70% feel pressured to abort. Abortionists admitted in previous testimony women are falsely told their babies will not feel pain and manipulated that fetal tissue donated to gruesome scientific experiments is “doing something good.” Despite its deceptive moniker, abortion is actually anti-choice, while pro-life laws protect women’s right to informed consent and offer more safe healthcare services and supportive resources

In fact, while Texas’ law protects the lives of countless women and children, the State also provides $100 million per year for its Alternatives to Abortion program. Susan B. Anthony List Vice President of Communications Mallory Quigley notes such initiatives along with the Texas Heartbeat Act prove laws can protect lives while supporting families,

“[B]ut for two generations, the U.S. Supreme Court has shackled States to a radical policy of abortion on demand until birth, well past the point when unborn babies can clearly feel pain. The overwhelming majority of Americans agree this is inhumane.”

Problems with Roe

While Texas and Kentucky’s laws present more procedural challenges in order to successfully protect lives, Mississippi directly challenged the Supreme Court’s infamous Roe ruling, which legal scholars concur is decided erroneously. When States ratified the 14th Amendment which provides Equal Protection, abortion was criminalized and the preborn were rightly defined as persons. Justice Blackmun’s majority opinion in the Court’s Roe decision exposed the faulty legal basis, and even admitted if prenatal “personhood is established,” the invented case for abortion “collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” 

By contrast, as with slavery, abortion, or other atrocities against human rights, oppressors dehumanize their victims, despite scientific fact and legal and moral reasoning. Roe exploited vulnerable women to legalize abortion, which for decades has continued harming and exploiting women for profit and enabled the killing of millions of children. 

The States’ cases further expose the flawed reasoning of Roe, which established arbitrary and discriminatory “viability” standards. Since the Roe decision in 1973, the gestational age considered “viable” has shifted several weeks earlier due to medical advancements which continue to improve. Mississippi Attorney General Lynn Fitch argues State Legislatures should be able to respond to such advances,

“which they cannot do in the face of flawed precedents that are anchored to decades-stale views of life and health. At minimum, this Court should reject viability as a barrier to prohibiting elective abortions. A viability rule is an artificial line which has no constitutional basis, harms State interests, and produces other severe negative consequences.” 

Additionally challenging Roe‘s invented “right to privacy,” Fitch’s legal brief notes, “A right to abortion cannot be justified by a right of privacy…Nowhere else in the law does a right to privacy or right to make personal decisions provide a right to destroy a human life.” Even Justice Blackmun’s opinion in Roe admitted, “The Constitution does not explicitly mention any right to privacy.” While abortion activists assert the flawed Roe decision settled the abortion issue, Fitch rebutted,

“All it did was establish a special-rules regime for abortion jurisprudence that has left these cases out of step with other Court decisions and neutral principles of law applied by the Court. As a result, State legislatures, and the people they represent, have lacked clarity in passing laws to protect legitimate public interests, and artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children. It is time for the Court to set this right and return this political debate to the political branches of government.”

Abortion activists, including the controversial Biden administration, have placed undue pressure on the Court to preserve their lucrative Roe abortion ruling, with even the Health and Human Services and Department of Justice intervening in States’ rights before the Supreme Court, which does not have the authority to legislate States’ laws, but only to interpret if States acted within their powers. According to Constitutional provisions, any matters of law, such as abortion, not expressly delegated to the federal government are to be decided via States’ rights. Importantly, SCOTUS rightly allowed the Texas law to continue, while defining an opening for abortion providers’ legal challenges but blocking the federal government’s interference. Leaving Texas’ law in place, which bans abortion from six weeks gestation, hopefully indicates the Court will also deliver a favorable decision in the upcoming ruling for Mississippi’s law banning abortion from 15 weeks.

Precedent for overturning precedent

During oral arguments in Mississippi’s case, attorneys for the abortion clinic were stumped when Justice Thomas asked them to identify which specific Constitutional foundation provides a “right” to abortion. “Specifically state what the right is, is it specifically abortion? Is it a liberty? Is it autonomy? Is it privacy?” Justice Thomas has accurately noted there is no Constitutional right to abortion, and the Court’s decisions such as Roe “created the right to abortion…without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.” 

Justice Kavanaugh cited several “of the most consequential cases in the country’s history” in which the Supreme Court overruled flawed precedents, and added that a 15 week ban — the standard of the vast majority of other countries — is “not a dramatic departure from viability,” and that the viability standard “the justices in Roe created arbitrarily” is shared with such regimes as North Korea and China, who coerce abortions and other human rights abuses. Roe and related faulty cases similarly permit human rights abuses against women and children. Justice Sotomayor noted important precedents were overturned to expand individual rights, and as Justice Blackmun had admitted in Roe, an invented personal “right” cannot violate another individual’s Constitutional right to life.  

Though overruling such “seriously wrong” precedents would merely return the issue to the States, abortion activists exploit fears that doing so would endanger women; in truth, however, more women died from legal abortion after Roe, and abortions continue to harm women’s health. In fact, if the Supreme Court overturns Roe, over half of the States have “trigger laws” or other similar laws ready to restrict or ban abortions. Abortion activists propose circumventing such bans by providing women with dangerous abortion pills, which have increased emergency hospitalizations 500%, enable violence and coercion, cause even greater risk of death, and killed dozens of women. 

A new Texas law bans the dangerously unregulated sale of such life-threatening drugs. Unfortunately dismissing thousands of women harmed by abortion, SCOTUS recently struck down Louisiana’s law requiring abortion clinics, often with rampant health and safety violations, to have hospital admitting privileges in order to provide continuity of care for women with emergency complications. Chief Justice Roberts reversed his own opinion, having previously upheld a Texas law with similar health and safety provisions. By contrast, pro-life advocates are prepared to provide safe healthcare alternatives and supportive resources to women, children, and families. 

Conclusion

Ultimately, pro-life laws protect the health and lives of women and children. By contrast, abortion laws based on flawed legal precedents with arbitrary “viability” standards ignore science and medical advancements and violate health and safety, to exploit women for profit while violating preborn individuals’ right to life. Former abortion clinic director Dr. Joseph Randall realized, “I was killing babies, not serving women.” Similarly, former medical director of the first abortion clinic in Mississippi, Dr. Beverly McMillan “finally got to the point [she] couldn’t look at those little bodies anymore. There is no difference between a first trimester abortion, a second trimester abortion, a third trimester abortion, or infanticide. It’s all the same human being in different stages of development. We have gone into a noble profession for healing, and we lose sight of what we were called to do when we get into the killing business.” 

Laws such as those passed by the States’ currently under review by the Supreme Court protect the lives of women and children while integrating contemporary science and current advanced healthcare. If SCOTUS decides correctly in the cases of the States’ laws under review, it will rectify Roe’s ruling based on flawed “viability” standards, and instead uphold equality, the Constitution and States’ rights, and protect women, actual healthcare, and the human rights of preborn children.

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Noelle has a Bachelor of Science in Education, Master of Arts & a Doctorate of Law. She is pro-life based on moral principles & law.

The views and opinions expressed in these articles are those of the author and do not necessarily reflect the official position of Human Defense Initiative.