Fact-checking the fact-checkers of Dobbs v Jackson oral arguments

Two days after the U.S. Supreme Court heard Dobbs v. Jackson oral arguments, The Cut published Claire Lampen’s analysis of the anti-abortion case presented by attorney Scott G. Stewart. She fairly concludes that his argument neglected and misrepresented key contextual facts (despite their explication in the amicus briefs). However, she erroneously alleges several false statements and then underscores them with classist, racist, sexist, and dehumanizing assertions. Her criticism demands the scrutiny of critical eyes.

Biological Humanity

We must first consider a point foundational to the case itself: the advent of preborn human viability. Lampen asserts this is 23-24 weeks — and yes, this is the general timeline agreed upon by experts. Yet this fact alone doesn’t tell the whole story: multiple premature newborns have survived at 21-22 weeks, and this record continues to be broken as NICU procedures and technology improve. Additionally, rapid advancement in artificial wombs will soon disrupt the notion of viability — and likely, our conceptualization of birth — entirely. Once preborn bodies can be transferred to artificial wombs from pregnant bodies, the autonomy of both bodies can be respected without conflict.

With this in mind, let’s clarify a critical ambiguity of the pro-abortion debate: are preborn humans alive? Lampen describes born humans as “actual living people” and preborn humans as “hypothetical future[s]”. This distinction doesn’t hold up to the characteristics of life (which is the criteria NASA uses to determine if it has discovered discrete living organisms on other planets). The science is not ambiguous; the human life cycle begins at conception. Preborn humans are unequivocally “actual living” human organisms.

Personhood

It’s likely Lampen meant to contrast preborn humans with “actual” people, not “living” humans. “People” and “personhood” are philosophical concepts regarding when humans have moral worth, whereas biological humanity is a concept regarding when a human organism comes into existence. When Stewart claims that lives are lost, he refers to biological life processes of preborn humans, which are indisputably terminated by abortion. Evidently Lampen believes that the assumption that preborn humans are philosophical persons should not be our paradigm.

But shouldn’t it be? Let’s examine the stakes of the current paradigm. If we wager that preborn humans are not persons, then there are two possible outcomes of abortion: a person is killed unintentionally, or nothing is killed. The unintentional killing of a human is manslaughter, and to deliberately risk manslaughter is criminal negligence. Therefore, unless we are certain that preborn humans are not persons, abortion is not ethically acceptable. To prevent unjustified harm, we presume innocence so long as reasonable doubt of guilt is present. For the same reason, we ought to presume fetal personhood.

Yes, Stewart’s premise that abortion kills human persons is not empirical; but unless the pro-abortion argument proved beyond reasonable doubt that his premise is false, then Stewart’s argument remains sound. Using legality, rather than humanity, to define personhood will always exclude certain humans, which is the process of dehumanization used throughout history to discriminate, torture, and kill. Lampen expresses resistance to “even touching” fetal personhood, but for the sake of humanity, we must grapple with the topic. Besides, technically all of us only have — in Lampen’s words — a “hypothetical future.”

What if we acknowledge that the futures of pregnant humans and preborn humans have equal intrinsic value? And — hear this out — what if crisis pregnancies do not have to destroy the lives or futures of parents?

Why do we need abortions? Why is it so often presented as the best solution? And, frequently, the only option? Could abortion access — because it is cheaper than supporting a family for 18 years, or simpler than getting a parent out of an abusive situation, or easier than early interventions for maternal health outcomes — hinder our equal access to more expensive, complex, intensive choices? Perhaps because some people with power (read: the patriarchy) would rather not support pregnant people through expensive, complex, intensive choices? Maybe even because they would like to discourage fertility and disempower people who don’t suppress theirs?

Maternal & Infant Mortality

Further, Lampen purports that “it is hard to know how many patients died from illegal abortion in the pre-Roe landscape,” but we do know that in countries where abortion is illegal, women rarely die. She then claims that “4.7 to 13.2 percent of the world’s annual maternal deaths are attributable to unsafe abortions,” but the study abstract she cites reports that those deaths are attributable to abortions, full stop. Unsafe abortions aren’t necessarily illicit. Furthermore, the study defines the “abortion” category to include “induced abortions, miscarriage, and ectopic pregnancy.”

The U.S. maternal mortality rate is egregious. However, as Lampen and her cited studies point out, a range of factors increase maternal mortality rates. States with abortion restrictions often also don’t support maternal health, or women in general; their conservative legislators consistently push to restrict both abortion and publicly funded resources for health and wellness. So then are abortions solely responsible for decreasing maternal mortality in unrestricted states? Correlation is not causation.

It makes sense to compare states with functional public healthcare and unrestricted abortion to small, developed nations with functional public healthcare and restricted abortion, rather than to states with no public healthcare or developing nations. Poland is a decent standard for comparison: after passing abortion restrictions, Poland’s maternal mortality rate fell from 17 to 3 per 100,000 in 2015. Within the same 25-year period, the U.S. rate stood at 14 per 100,000.

Despite Lampen’s inclusion, infant mortality rates aren’t relevant to abortion — unless we specifically refer to the infants that are born despite attempted abortion and later succumb to their abortion-inflicted injuries, or the increased risk of preterm birth in post-abortion pregnancies.

Health Risks

Speaking of pregnancies, Lampen talks a lot about their problems but does not connect how abortion directly mitigates undesirable pregnancy outcomes. Yes, pregnancy is “expensive [and] comes with a suite of potential health risks”; surgical abortion costs up to $1,500 on average and can result in infection, hemorrhage, organ injury, scarring leading to infertility and miscarriage, and maternal death from complications. The abortion pill, not taken as directed, has led to hospitalization, and taken as directed, has shown a complication rate four times higher than surgical abortion. Pregnancy is not a disease; do not pathologize female bodily processes. That Lampen frames this normal female body process as a pathology is sexist.

Quoting Stewart, Lampen denies that an “abortion procedure is brutal” past 15 weeks. This may be true for the pregnant person, but not for the fetus; even the most ‘humane’ method, injection, is the same lethal injection used in criminal executions and condemned for pets by the Humane Society of the United States. While only 10% of legal abortions occur after 12 weeks, those 10% put their recipients at risk of severe and chronic health complications. These complications do not have to cause death to be concerning. Women of color are particularly at risk of pregnancy complications, and they deserve care from tailored resources like Abide Health. That Lampen champions disrupting the reproduction of people of color as the solution to maternal health disparities, rather than enabling the reproduction of people of color by decolonizing prenatal healthcare, is racist.

Social Risks

In discussing the Turnaway Study, Lampen does not compare like with like. She takes outcomes for women who were denied abortion and holds them up to outcomes for women who weren’t in hardship or who obtained abortions; women who chose to carry their pregnancies despite hardship are a more analogous control group for comparison. In fact, the Turnaway Study concludes that “96% of women denied abortion no longer wish they could have had one” five years later. These statistics were lower for women whose children were adopted or who lacked social support networks. This suggests that family preservation strategies may be critical to improve mental health outcomes of crisis pregnancies. Poor people “at a tremendously greater risk of.. ending their life” deserve mental healthcare. That Lampen prioritizes abortion for people in poverty over trauma-informed crisis intervention is classist.

Pregnancy can perpetuate cyclical poverty, and abortion alone does not break the cycle. A person too poor to raise a child will still be poor after having an abortion. Parents lacking support will miss opportunities, and people with somatopsychic trauma symptoms from their abortion will miss opportunities. Lampen brings up the “gaping differences in social welfare and medical access between the U.S. and many of the European countries” which make it easier to access abortion, as well as parenting resources that reduce need for abortion. We aren’t supporting women after their births; we aren’t supporting women after their abortions. Women deserve better.

Toward the end of her analysis, Lampen suggests that we may “rely on abortion to avoid pregnancy.” This may just be worded poorly, but it makes no sense. After all, an abortion can only be procured if there’s a pregnancy, or an offspring, to abort. Not to mention that many contraceptives function as abortifacients. These are often not covered by insurance, as Lampen states, and neither are empirically reliable methods such as Natural Family Planning. The “why” for the latter is obvious: it is neither cost-effective nor profitable. Abortion is profitable. Late-stage capitalism applies here, too.

Nietzsche said, “All things are subject to interpretation. Whichever interpretation prevails at a given time is a function of power and not of truth.” Stay wary. 

[Today’s guest blog post is by Elise Ketch, a queer female progressive, Catholic, and Consistent Life Ethic advocate. Ketch curates a compilation of quotes and arguments against abortion on her blog, Secular Pro-Life Conspectus (no formal affiliation to Secular Pro-Life, the organization).]