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

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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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