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‘When does life begin?’: Senators press Ketanji Brown Jackson on abortion

Katie Yoder   By Katie Yoder for CNA

Supreme Court nominee Ketanji Brown Jackson, a federal appeals court judge, participates in her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington March 22, 2022. (CNS photo/Doug Mills, Pool via Reuters)

Washington D.C., Mar 23, 2022 / 14:26 pm (CNA).

Senators are continuing to press Supreme Court nominee Ketanji Brown Jackson on the abortion issue during her confirmation hearings with questions such as, “When does life begin, in your opinion?”

Republican Sen. John Kennedy of Louisiana asked Jackson — the federal judge nominated by President Joe Biden to replace retiring Justice Stephen G. Breyer — that particular question on Tuesday.

“Senator, I don’t know,” Jackson responded, before laughing.

Kennedy prompted, “Ma’am?”

“I don’t know,” Jackson repeated, later adding, “I have personal, religious, and otherwise beliefs that have nothing to do with the law in terms of when life begins.”

“I have a religious view,” she added, “that I set aside when I am ruling on cases.”

Kennedy then asked when the law begins to protect a human person, or “when does equal protection of the laws attach to a human being?”

Jackson, again, said she did not know.

The point of viability

The following day, on Wednesday, Republican Sen. John Cornyn of Texas questioned Jackson about viability, or the point at which a baby can survive outside the womb.

“What does viability mean when it comes to an unborn child, in your understanding?” he wanted to know.

“I hesitate to speculate,” Jackson responded. “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.”

After Cornyn continued to press her, she added, “I am not a biologist, I haven’t studied this.”

“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 referring to abortion. “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.”

In response to Democratic Sen. Dianne Feinstein of California on Tuesday, Jackson previously called Roe and Casey “settled law” concerning “the right to terminate a woman’s pregnancy” during the Tuesday hearings.

Dobbs v. Jackson

The abortion questions come as the Supreme Court prepares to issue a ruling later this year in Dobbs v. Jackson Women’s Health Organization, a case that directly challenges Roe v. Wade, or the court’s 1973 decision that legalized abortion nationwide.

In Roe v. Wade, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. Nearly 20 years later, the court upheld Roe in Planned Parenthood v. Casey. The 1992 ruling said that while states could regulate pre-viability abortions, they could not enforce an “undue burden,” defined by the court as “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

On Tuesday, Republican Sen. Marsha Blackburn of Tennessee asked Jackson directly about Dobbs and Roe.

“Do you commit to respecting the court’s decision if it rules that Roe was wrongly decided and that the issue of abortion should be sent back to the states?” the senator asked.

Jackson responded that “Whatever the Supreme Court decides in Dobbs will be the precedent of the Supreme Court — it will be worthy of respect in the sense that it is precedent and I commit to treating it as I would any other precedent of the Supreme Court.”

The legal term “precedent” refers to previous court decisions that judges consider and build upon when deciding similar, subsequent cases.

Abortion up until birth

During his alloted time of questioning on Wednesday, Cornyn also asked Jackson, “Is it your understanding, under the current precedent of the Supreme Court, that there’s a right to abortion up to and including the time of delivery of the child?”

“Senator, I don’t know actually,” she said. “The Supreme Court, in every case, is looking at individual regulations of the government related to individual rights and I am not aware of the court having made a pronouncement about whether or not regulation can extend all the way up until birth.”

“It’s because the court is looking at individual cases and making its rulings in the context of individual cases and not making sort of pronouncements in general,” she added.

Fetal pain

On Wednesday, Republican Sen. Lindsey Graham of South Carolina questioned Jackson on the topic of fetal pain.

“Can an unborn child feel pain at 20 weeks in the birthing process?” he asked.

“Senator, I don’t know,” Jackson said.

Graham followed up: “Are you aware of the fact that anesthesia is provided to the unborn child of that time period if there’s an operation to save the baby’s life because they can, in fact, feel pain?”

She said she was not.

Jackson’s abortion record

Blackburn on Tuesday, along with Republican Sen. Thom Tillis of North Carolina on Wednesday, asked about Jackson’s record in a case related to abortion.

In addition to having the support of abortion providers such as Planned Parenthood for her nomination, Jackson co-authored a 2001 amicus brief in McGuire v. Reilly in support of a Massachusetts law that created a “buffer zone” preventing pro-life sidewalk counselors from approaching women outside of abortion clinics, according to Susan B. Anthony List.

In a letter dated March 21, a coalition of nearly 40 national and state pro-life leaders led by Susan B. Anthony List expressed concerns about this case to the Senate Judiciary Committee.

“In an amicus brief co-authored by Jackson on behalf of the Massachusetts National Abortion Rights Action League (Mass. NARAL) and other abortion groups regarding buffer zones around abortion clinics in Massachusetts, she portrayed pro-life sidewalk counselors as a ‘hostile, noisy crowd of ‘in-your-face protesters,’” they wrote.

Blackburn accused Jackson of attacking pro-life women while in private practice.

“You described them, and I’m quoting, ‘hostile, noisy crowd of ‘in-your-face protestors,’” Blackburn brought up. “How do you justify that incendiary rhetoric against pro-life women?”

Jackson said that the brief represented her law firm’s clients.

“I drafted a brief along with the partners in my law firm who reviewed it and we filed it on behalf of our client,” she said.

After a follow-up question from Blackburn, Jackson clarified, “That was a statement in a brief, made an argument for my client, it’s not the way that I think of or characterize people.”

Jackson agreed with Cornyn and Blackburn that the U.S. Constitution does not include the word “abortion.”

Echoes of Barrett hearing

As happened on Tuesday, when Graham asked pointed questions about Jackson’s Christian faith, the abortion-related questions senators have asked this week have been similar to those that senators asked of President Donald Trump’s 2020 nominee, Amy Coney Barrett.

During her confirmation hearing, Barrett was asked a number of questions about Roe, and about a statement that she signed in 2006 as a private citizen at church affirming the protection of life from conception to natural death.

“What I would like to say about that is, I signed that almost 15 years ago in my personal capacity when I was still a private citizen, and now I’m a public official. And so while I was free to express my private views at that time, I don’t feel like it is appropriate for me anymore because of the canons of conduct to express an affirmative view at this point in time,” Barrett responded then.

“But what that statement plainly says is that when I signed that statement, that is what I was doing at that point as a private citizen,” she added.


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9 Comments

  1. This line of questioning without answers reminds me of two events…

    The first event is comments made by Justice Sandra Day O’Connor regarding the 1983 Akron case, where she pondered the obtuseness of the Court ruling arbitrarily on what is viable. Medical progress meant that “viability” would become earlier and earlier, which meant, as she later put it, that Blackmun’s trimester framework in Roe was “on a collision course with itself.”

    The collision course is now at hand. And, yet, viability is not even the real test as to when human life begins…

    The second event is the scene in the movie “The Sum of all Fears,” where the City of Baltimore has been nuked and, in the pandemonium, the rescued President is on his way to Air Force One. To every question asked of his aids, the answer is “I don’t know!” To which he finally reacts, “well, what DO you know?! This is too much g-d d–n bull—t!”

    He got that just about right. And now, especially, after decades of well-established and well-published elementary embryology. Take for example the Life Magazine images, for example even in 1965 (!): https://www.lc.org/newsroom/details/021519-life-begins-at-conception-1

    When will real footprints take precedence over so-called “settled” footnote precedents?

  2. This is what unfolds when regressive politics goes to war with reality:

    – I can’t say when life begins, because…um…hardy-har-har…I’m not a scientist…but science is real.

    – I can’t say it’s a human being, because…I’m not a scientist…but science is real.

    – But I can say that even though science says this is a human life…each field of expertise “defines it’s own concept of [reality]”…and when we walk down the hall from the lab room to the courtroom…science doesn’t matter in the courtroom… because judges “re-define” reality…and the “re-definition” of reality includes “penumbras” conjured by His Supreme Justice Blackburn, and “mystery” conjured by His Supreme Justice Kennedy…and in light of those “penumbras” and “mysteries”…the Supreme Court already decided that human beings in the womb are not “persons”…umm…that sounds uncomfortable like Dred Scott…did I mention I’m a Christian?

  3. “I don’t know.” “I hesitate to speculate.” I can’t define “woman,” because I’m not a “biologist.” Why would we want such a person on the Supreme Court? Sounds as if she would spend a lot of time just looking up definitions and researching information that’s generally accepted. She is disingenuous. She is not someone who is capable of sitting on the highest court in the land. She will likely be confirmed, because to not confirm her would be termed “racist.” We need people who are there because they are qualified. It’s too bad that the qualities needed for the job cannot be paramount in our culture of everything being termed “racist.”

  4. If it’s growing – it’s alive.

    At the instant of conception that which is conceived is so small that not even the most powerful microscope in the world can see it BUT – it begins to grow. And it is logical to conclude that – If It’s Growing It’s ALIVE.

    Next question.

    Sen. Booker’s little tirade yesterday was funny – I’ll concede that much, but that’s about that.

    Quickie quiz – what do 1) The Judge Kavanaugh accusations 2) The Tawana Bradley accusations 3) The Duke lacrosse team rape accusations 4) The Anita Hill accusations all have in common?

    Answer – they DIDN’T happen.

    • Bingo again!

      In regressive politics, we insist that all citizens are obliged to pretend reality is not happening, or else we will release the regressive political militia back into the streets they burned in 2020, and burn down more of your businesses, and then we’ll start taking custody of your children.

    • If the child growing in the womb wasn’t alive why would there be a need to kill it? Can you kill something that’s not alive?
      It’s ridiculous we even have to have those sorts of conversations in 2022. Or the question about what a woman or a man is. Goodness. Even our illiterate ancestors could answer that in a heartbeat.

  5. Last Night I told a meeting of about 50 Christians that “I am thanking God for delivering me to this situation ” on speaking to them about my faith. These are the words of Ketanja Brown Jackson said to the world and GOD on TV . I told the audience that here is her chance to prove to all PRO-LIFE CHRISTIANS that the GOD she knows is the same GOD who is PRO-LIFE .
    David Crow Cope

  6. She doesn’t know what a woman is and doesn’t know when life begins. How can snyonr call her “educated” when she clearly failed High School biology.

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