Confused and inaccurate, all in all a bad day for Supreme Court Justice Sotomayor

By Dave Andrusko

In Wednesday’s Supreme Court oral arguments in Dobbs v. Jackson Women’s Health Organization, Sonya Sotomayor polished her credentials as the most pro-abortion justice on the court. But a look back suggests she was, at best, marginally coherent and was not going to allow the absence of accuracy, completeness, or fairness to get in the way. At the risk of piling on, let’s look at a few examples.

Speaking third, Justice Sotomayor’s carefully crafted soundbite was intended to be the primary take-away from the 90 minute oral argument:

Will this institution [the Supreme Court] survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?  I don’t see how it is possible.

Her line of questioning, dripping with melodrama and scorn, was intended less to defend Roe v. Wade/Planned Parenthood v. Casey than it was to make a political point. There have been a lot of fundamental changes to the political landscape since she came on the court in 2009 and all were “political decisions.” Which is to say that the “composition” of the court suited her just fine until a few years ago. Why? Because it reached the “correct” conclusion/

As Prof. Jonathan Turley noted

Justices Sotomayor and Stephen Breyer insisted that overturning Roe in whole or in part would bring ruin upon the court by abandoning the principle of stare decisis, or the respect for precedent. Yet neither showed the same unflagging adherence to precedent when they sought to overturn conservative doctrines.

Then there was her stab at ridiculing the science behind fetal pain. Those who subscribe to this grim reality she airily dismissed as a “gross minority of doctors,” clearly a lunatic fringe. But in response to a growing body of scientific evidence, Dr. Stuart Derbyshire, one of the world’s leading neuroscientists, completely reversed his position that fetal pain was not possible prior to 24 weeks. He now believes that fetal pain is possible “from as early as 12 weeks.”

Finally, there was her truly bizarre connection between brain death and the unborn baby’s ability to experience pain:

Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli. There’s about 40 percent of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don’t think that a response to — by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness.

So 40% of “dead brain people” will “respond to stimuli.” Where, or where, did she drag that factoid from? It simply is not true.

And what has this to do with unborn babies who are not “brain dead” by any definition and (according to an amicus brief filed by Maureen L. Condic, Ph.D.

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.

Other than gathering kudos (and headlines) from the usual sources, not a good day for Justice Sotomayor.