Lauretta Brown 

Supreme Court nominee Judge Ketanji Brown Jackson faced an intense array of questioning this week on hot-button issues regarding abortion and human biology. A few exchanges stood out, potentially showing how she might approach things if she is confirmed to replace Justice Stephen Breyer on the high court.

Jackson was understandably asked a number of questions about abortion, given the possibility that the Supreme Court could overturn Roe v. Wade this summer in the Dobbs v. Jackson Women’s Health Organization case. She would not take part in that decision, which is expected this summer, but the court’s decision there could have a significant impact on U.S. abortion law. President Joe Biden promised on the 2020 campaign trail to only nominate judges supportive of Roe v. Wade to the Supreme Court. While Jackson has not stated support for Roe v. Wade openly, pro-lifers have raised concerns about her record, including a brief she co-wrote that characterized pro-life demonstrators as “hostile” and “noisy.”

 

The Question of When Human Life Begins 

One noteworthy exchange occurred between Jackson and Sen. John Kennedy, R-La., when he asked her, “When does life begin, in your opinion?” Jackson responded, “I don’t know” and laughed for a moment. When pressed, she told Kennedy, “I have personal, religious and otherwise beliefs that have nothing to do with the law in terms of when life begins.” He asked her what her “personal belief” on the question was, and she replied, “I have a religious view ... that I set aside when I am ruling on cases.” 

When the Supreme Court legalized abortion in 1973, Justice Harry Blackmun wrote in the opinion, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” 

In response to similar comments from then-Sen. Joe Biden in 2008 that he accepted “on faith” that human life begins at conception, the late Bishop Robert Morlino responded, “Any human being — regardless of his faith, his religious practice or having no faith — any human being can reason to the fact that human life from conception unto natural death is sacred. Biology — not faith, not philosophy, not any kind of theology — biology tells us, science [says], that at the moment of conception there exists a unique individual of the human species.”

Kennedy went on to ask Jackson, “When does equal protection of the laws attach to a human being?” She replied, “I actually don’t know the answer to that question.” This is an area where many abortion advocates have had difficulty, particularly in their language regarding an unborn child. In 2016, then-presidential candidate Hillary Clinton came under fire for stating that “the unborn person doesn't have constitutional rights,” in response to a question about abortion laws.

 

Facts About Pain-Capable Unborn Children

Jackson was also asked by Sen. Lindsey Graham, R-S.C., “can an unborn child feel pain at 20 weeks in the birthing process?” She replied, “I don’t know,” and Graham asked if she knew that “anesthesia is provided to the unborn child at that time period if there’s an operation to save the baby’s life because they can feel pain.” She told Graham she was not aware of that. 

In its friend-of-the-court brief in the Dobbs case, the pro-life Charlotte Lozier Institute pointed out that, “in considering use of anesthesia for invasive medical procedures performed on the fetus, a recent review of the evidence concluded that from the 13th week onward, ‘the fetus is extremely sensitive to painful stimuli,’ making it ‘necessary to apply adequate analgesia to prevent [fetal] suffering.’” The brief cited a June 2021 study that found that “a fetus undergoing heart surgery at 21 weeks post-fertilization also reacted with facial expressions showing a conscious experience of pain upon injection of anesthetic into the thigh.”

The group also highlighted, in response to Jackson’s remarks, that Dr. Stuart Derbyshire, one of the fetal-pain experts who was referenced by The New York Times in 2013 as a “leading voice against the likelihood of fetal pain” has since changed his stance on the issue and published a peer-reviewed paper last year in the Journal of Medical Ethics, concluding, “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.”

 

Calling Roe ‘Settled,’ Dodging Questions on Viability 

On Tuesday, Jackson told Sen. Dianne Feinsten, D-Calif., that “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy.” She later told Sen. Ben Sasse, R-Neb., that “after Casey, the court has determined not so much that the right to terminate a woman's pregnancy is fundamental; the right exists, and it’s subject to the framework in Casey that allows for regulation so long as there is not an undue burden on the exercise of the right, pre-viability.”

However, Jackson shied away from defining viability when pressed by Sen. John Cornyn, R-Texas, who asked, “What does viability mean when it comes to an unborn child, in your understanding?” She replied, “I hesitate to speculate,” saying, “I know that it is a point in time that the court has identified in terms of when the standards that apply to regulation of the right” to abortion.

“What I know is that the Supreme Court has tests and standards that it has applied when it evaluates regulation of the right of a woman to terminate their pregnancy,” she said when pressed further. “The court has announced that there is a right to terminate up to the point of viability, subject to the framework in Roe and Casey, and there is a pending case right now that is addressing these issues,” she added in reference to Dobbs, a case where the Supreme Court is addressing the question of whether all pre-viability bans on abortion are unconstitutional. 

She also stated, “I am not a biologist. I haven’t studied this.”

 

‘Woman’ Not Defined

Another area in which Jackson cited her lack of credentials as a biologist was in response to Sen. Marsha Blackburn, R-Tenn., asking if she could provide a definition for the word “woman.” Blackburn quoted the late Justice Ruth Bader Ginsburg, who wrote in the 1996 case United States v. Virginia, that “[p]hysical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’”

“Do you agree with Justice Ginsburg: that there are physical differences between men and women that are enduring?” Blackburn asked, and when Jackson cited her lack of familiarity with the case, she asked her to provide her definition of the word “woman,” to which Jackson replied, “I can’t. Not in this context. I’m not a biologist.”

Sen. Ted Cruz, R-Texas, later pressed Jackson on her refusal to provide a definition of the term, asking, “As a judge, how would you determine if a plaintiff had Article 3 standing to challenge a gender-based rule, regulation, policy without being able to determine what a woman was?”

“I know that I’m a woman,” she replied. “I know that Sen. Blackburn is a woman, and the woman who I admire most in the world is in the room today, my mother.” She said, regarding the question of “who has the ability to bring lawsuits based on gender,” those issues “are working their way through the courts, and I am not able to comment on them.”