Fact check: 5 false claims corrected in the Dobbs oral arguments

By Mary Szoch, Op-ed Contributor Monday, December 20, 2021

On December 1, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case that poses the best chance in over a generation to overturn Roe v. Wade. Julie Rickelman, senior director of U.S. litigation for the Center for Reproductive Rights, argued that the Court should strike down Mississippi’s Gestational Age Act — the bipartisan legislation banning abortion after 15 weeks that was at issue in the case.

Although Rickelman’s arguments occasionally aligned with the truth, the majority of what she said does not pass a fact check. Let’s examine several of those claims.

Claim 1: Justice Roberts questioned whether a 15-week ban on abortion, as opposed to a ban at the point of viability (generally set at 22-24 weeks gestation), would have a severely negative impact on women in their place in society. Rickelman responded by stating, “People who need abortion after 15 weeks are most often in the most challenging circumstances … In fact, the data has been very clear over the last 50 years that abortion has been critical to women’s equal participation in society.”

The Truth: In Perspectives on Sexual and Reproductive Health, a publication of the pro-abortion Guttmacher Institute, the authors acknowledge that women seeking late-term abortions do so for the same reasons women receive earlier abortions — “stressful circumstances of unprepared pregnancy, single-motherhood, financial pressure and relationship discord.” Killing a child is not the solution to challenging circumstances.

Claim 2: Justice Roberts mentioned that the list of countries that do not ban abortion prior to viability includes North Korea and China. Rickelman responded, “First that’s not correct about international law. In fact, the majority of countries that permit legal access to abortion allow access right up until viability … So, for example, Canada, Great Britain and most of Europe allows access to abortion right up until viability…”

The Truth: Across the globe, only six countries allow abortion throughout the entirety of pregnancy — North Korea, China, Vietnam, South Korea, Canada, and the United States. While Rickelman was correct that Canada and the United Kingdom offer abortion up until viability, she was wrong in characterizing that as typical for Europe. In fact, only two countries in Europe (the United Kingdom and Finland) allow abortion for “broad social reasons” or “socioeconomic reasons.” Around the world, 100 countries completely outlaw abortion or only allow abortion to protect the life of the mother or in cases of rape, incest, or fetal abnormality.

Claim 3: Justice Gorsuch asked Rickelman whether the “undue burden” standard is unworkable. Rickelman replied, “The only thing that’s at issue in this case is the viability line, and the viability line has been enduringly workable. The lower federal courts have applied it consistently and uniformly for 50 years. And the Fifth Circuit here below had no difficulty striking down this law unanimously, 3-0. So it’s been an exceedingly workable standard.”

The Truth: Theviability line has shifted from 28 weeks when Roe was decided in 1973 to 22-24 weeks today. Multiple babies have even survived at 21 weeks. Viability is not a standard that can be uniformly applied because it varies from person to person. Characterizing viability as an “exceedingly workable standard” is either wishful thinking or willful ignorance.

Claim 4: Justice Alito questioned Rickelman about her defense of the viability line. He asked, “The fetus has an interest in having a life, and that doesn’t change, does it, from the point before viability to the point after viability?” Rickelman ultimately responded, “It [the viability standard] is principled because, in ordering the interests at stake, the Court had to set a line between conception and birth, and it logically looked at the fetus’ ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the Court to resolve the philosophical issues at stake.”

The Truth: The matter of an unborn child being a human being is not a “philosophical issue”; it is a scientific fact. Furthermore, at no point in time do babies — born or unborn (or countless fully grown adults) — have the ability to “survive separately,” so if Rickelman actually believes that the Court’s line where a person has the ability to “survive separately” is the logical point before which a person can be killed — she is endorsing abortion, infanticide, and the right to kill anyone who cannot survive on their own.

Claim 5: In an exchange with Justice Alito, Rickelman claimed that access to abortion is part of the American tradition. She said, “At the founding, women were able to end their pregnancy under the common law. And, in fact, this Court … specifically called out and relied on Roe’s conclusion that at the time of the founding and well into the 1800s, women had the ability to end a pregnancy.”

The Truth: Multiple amicus briefs were filed proving the opposite. The Thomas More Society noted that English common law originally followed in the American colonies considered abortion after “quickening” as a serious crime, and early state laws made abortion throughout pregnancy criminal. As Josh Craddock pointed out in his seminal piece, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?” published in Harvard Journal of Law and Public Policy, “quickening” was used to protect prenatal life as soon as it could be discerned — not to exclude life prior to that moment. In other words, at the time of the American founding, once there was evidence of life in the womb, it was protected. Professors Mary Ann Glendon and O. Carter Snead echoed this argument.

Craddock also noted that by the time of ratification of the 14th Amendment, which is used to justify the “right to privacy” under which abortion is legalized, not only did common-law and state practice protect the unborn, but dictionaries used “person” and “human being” interchangeably, and the authors of the 14th Amendment expected it to especially protect the weak and marginalized. Esteemed legal scholars John Finnis and Robert George, as well as Lee Strang, submitted amicus briefs arguing along the same line of thought.

As we pray for the outcome in Dobbs, let us also pray for Julie Rickelman — that this brilliant woman will seek the truth and one day use her God-given gifts to defend life.

Originally published at the Family Research Council.

Mary Szoch serves as the Director of the Center for Human Dignity at Family Research Council. In this position, Mary researches, writes, and coordinates collaborative efforts with other pro-life advocates on policies surrounding life and human dignity.