Thirty years of advancements in ultrasound technology show in Dobbs v. Jackson
A half hour into Supreme Court oral arguments for the pivotal abortion case Dobbs v. Jackson Women’s Health, Justice Elena Kagan interrupted Mississippi Solicitor General Scott Stewart. For three minutes Kagan questioned Stewart’s arguments against the abortion precedents enshrined by Roe v. Wade and Planned Parenthood v. Casey. Kagan said not much had changed since the court released those 1973 and 1992 decisions: People today still disagree on whether those cases were right or wrong based on the same reasons that they believed they were right or wrong decades ago.
Kagan said only one thing has changed: “We are in the same exact place as we were then, except that we’re not because there’s been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women’s existence in this country.”
But the arguments attorneys made before the Supreme Court on Dec. 1 paint a different picture of how the cause of the unborn has benefited from medical advancements and a pro-life movement bolstered by scientific arguments since Planned Parenthood v. Casey in 1992. The Casey oral arguments tiptoed around the reality of unborn life. In the Dobbs case, those unborn human lives took center stage.
Even the pro-life attorneys in Casey treated the life of the unborn child as a secondary issue. They argued instead over legal standards, making only intermittent references to the state’s interest in protecting the life of unborn children. One of the attorneys regularly referred to that as “potential” life. In 1992, ultrasound technology was still relatively new: Only three pregnancy centers in the country used it to counsel pregnant women.
Today, more than 2,000 pregnancy centers provide ultrasounds. Mississippi Solicitor General Stewart noted such advancements in science and medicine have enabled parents and doctors to “know [what] the child is doing and looks like” and to know that the baby is “fully human.” No references to “potential” life.
Early in the oral arguments, Justice Sonia Sotomayor grilled Stewart about the science of fetal pain in an attempt to argue that it didn’t add anything new to the abortion debate. But he brought to mind a powerful image and responded that states crafting abortion legislation “should be able to be concerned about … an unborn life being poked and then recoiling in the way one of us would recoil.”
Sotomayor dismissed Stewart’s view of unborn life as purely religious. But during oral arguments, members of progressive pro-life groups stood outside of the court holding signs with phrases like “Agnostic, leftist, queer, biracial, nonbinary, pro-life.” They chanted, “Forceps—off their bodies.”
Even the language of the pro-abortion attorneys in the Dobbs case marked a shift from the Casey arguments. Both Julie Rikelman, director for the Center for Reproductive Rights, and U.S. Solicitor General Elizabeth Prelogar on Dec. 1 echoed many of the same arguments that ACLU attorney Kathryn Kolbert made in 1992: that abortion was central to women’s liberty, that the court couldn’t go against a former ruling that so many women had come to rely upon.
But the language Rikelman and Prelogar used showed the effect of three decades of advances in ultrasound technology. While Kolbert repeatedly referred to unborn babies in her argument as “potential life” and just once as “fetal life,” the word “potential” never appeared in Rikelman or Prelogar’s vocabulary. They both used the term “fetal life,” and, in one telling slip, Prelogar called unborn life a “baby.”
“The fact that so much time has passed … that’s not a point in Roe and Casey’s favor,” said Stewart, responding to Kagan’s three-minute monologue. “They adopt a right that purposefully leads to the termination of now millions of human lives. If nothing had changed, they’d be just as bad as they were 30 years ago, 50 years ago. And now we just have decades of damage.”
—with reporting from Esther Eaton
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