Supreme Court Justice Sonia Sotomayor has been a reliable pro-abortion vote on the Supreme Court. That didn’t change when she dissented from a recent pro-life victory in abortion-pill litigation. Yet ironically, in her dissent (joined by Justice Elena Kagan), Justice Sotomayor embraced several pro-life talking points.
First, some background: The federal government’s Food and Drug Administration (FDA) decades ago approved use of certain pills to cause abortions. However, the FDA also imposed certain restrictions designed to minimize the harm to the mothers using such abortion pills as RU-486 or Mifeprex.
Among those restrictions was the requirement that the pregnant woman receive the abortion pill in person, rather than by mail. That at least was something of a safeguard for women who might have medical contraindications (such as an ectopic pregnancy) or be subject to coercion (i.e., being pressured by others to have an abortion she did not want).
But even that modest safeguard was too much for the abortion industry, which has sought to remove the restriction. The ACLJ, in response, urged the FDA to maintain the safety measures. We also signed onto a coalition letter urging the FDA to shut down illegal RU-486/abortion-pill websites.
When the COVID-19 pandemic struck, abortion forces – including the pro-abortion American College of Obstetricians and Gynecologists (ACOG) – sued, claiming that it was now unsafe for a woman to go in person to pick up the abortion pill. A federal district court agreed and granted an injunction against the in-person requirement. As we discussed previously, both the district court and the federal appeals court (the Fourth Circuit) refused to stay the injunction. The Trump Administration then sought relief from the Supreme Court. At the time, there were only eight Justices on the Court, Justice Ruth Bader Ginsburg having recently died.
In an unusual order, the Supreme Court in FDA v. ACOG did not grant or deny relief, but instead decided to hold the application “in abeyance” to allow further proceedings in the federal district court. In effect, the Court deferred action.
Thereafter, the federal district court adhered to its prior ruling barring the FDA from enforcing the in-person dispensing requirement, and the FDA again ran up the appellate ladder to the Supreme Court. This time, the Trump FDA won, 6-3, at the Supreme Court, obtaining a stay of the district court order and allowing the FDA regulations to go back into effect. Justices Breyer, Sotomayor, and Kagan dissented in this second round of FDA v. ACOG.
Justice Breyer did not explain his dissent. Justice Sotomayor, joined by Justice Kagan, did, basically echoing ACOG’s arguments. What is striking, however, is that Justice Sotomayor’s opinion in places sounds like a pro-life piece. Here are the notable points she made:
1. Abortion is like miscarriage. Miscarriages are a bad thing that we seek to avoid. Justice Sotomayor explains (p. 1) that medication abortions “induce the equivalent of an early miscarriage.” She even repeats this point (p. 8): medication abortion is “the equivalent of an early miscarriage.” Exactly right. In both abortion and miscarriage, the expectant mother loses her baby, which is tragic and regrettable. The only difference is that abortions are deliberate, which makes them far worse.
2. Surgical abortion is physically invasive of the woman. Justice Sotomayor, in defending abortion pills, concedes downsides of surgical abortions (p. 8):
[S]urgical abortions are far more invasive than medication abortions. . . . When a woman undergoes surgical abortion, she requires local anesthesia and sometimes sedation, her cervix is stretched with dilating rods, a tube is inserted through her cervix into her uterus, and, depending on the particular procedure, various medical tools are used to remove fetal tissue from her uterus.
Yes, abortion is physically abrasive to a woman’s reproductive system, reportedly even putting her at risk in future pregnancies.
3. Surgical abortions put women at risk of COVID-19. When some states tried to suspend surgical abortions during the pandemic, abortion activists insisted that there was no cause to do so. Yet now Justice Sotomayor admits (p. 8):
[S]urgical abortions carry all the same (and likely greater) risks of exposure to COVID–19 as do medication abortion’s in-person requirements.
Indeed, she expounds at length (pp. 2-3, 6-7, 10) about the Coronavirus risks of in-person procedures. As she states (p. 2): “The COVID–19 pandemic has thus made many typical activities more difficult and dangerous. A trip to the doctor’s office is no exception.”
4. Health statistics must be examined carefully. The abortion industry has long pushed the incorrect claim that abortion is safer than childbirth. To do so, abortion activists cherry-pick inapposite health figures for phony comparison, as we demonstrated in detail in a recent Supreme Court amicus brief.
Now, Justice Sotomayor agrees that unexamined comparisons of inapposite data are not probative of anything: “[S]tatistically insignificant, cherry-picked data is no more informative than reading tea leaves.”
Abortion is built on the lie that killing a baby before birth is somehow good or necessary. Like most lies, it generates more lies to cover up the first one; and ultimately, the defenders of the original falsehood end up tangling themselves in contradictory knots. Justice Sotomayor has helpfully conceded some important pro-life arguments, even while attempting to do so in the service of expanding abortion. This was inevitable. Let’s hope and pray the Supreme Court will soon cast off the faulty, dishonest foundations upon which the entirety of modern abortion jurisprudence rests.
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