It’s day two of confirmation hearings for Neil Gorsuch, Donald Trump’s nominee for the current Supreme Court vacancy, and the spectacle is already telling us a lot more about Gorsuch’s interlocutors than about the mild-mannered judge himself. Around noon on Tuesday, Sen. Lindsey Graham engaged in a nice bit of grandstanding to promote a 20-week abortion ban he’s been pushing in the Senate for years.
Sensing, perhaps, that Gorsuch wasn’t about to jeopardize his nomination by flaunting a hard-and-fast opposition to abortion at the mic, Graham used his time to speak nonsense about abortion science. He asked Gorsuch for a summary of the Supreme Court’s decision in Roe v. Wade, which Gorsuch described thus: “A woman has a right to an abortion. [The court] developed a trimester scheme in Roe that specified when the state interest and when the women’s interests tend to prevail.”
In other words, Graham jumped in to say, once a fetus can survive outside the womb, the court has found that the state’s interest in protecting its potential life supersedes a pregnant woman’s right to privacy. “Is it fair to say that medical viability in 1992 may be different than it is in 2022, medically?” Graham asked. Smart enough to avoid answering too-specific questions on abortion policy, Gorsuch demurred, “Senator, I’m not a scientist or a doctor.”
Graham wasn’t about to let a nominee’s strict talking points curtail his moment in the spotlight. “I would suggest that medical viability may change as science progresses, so you may have people coming in and saying, ‘in light of scientific medical changes let’s look at when medical viability occurs,’” Graham said during his three-minute speech. “We’re one of seven nations that allow wholesale, on-demand, unlimited abortion at 20 weeks, the fifth month of pregnancy,” he added. “I’d like to get out of that club.” Graham told Gorsuch that his legislation will “give an unborn child protection against excruciating pain.”
Graham is correct that the viability threshold makes for a blurry boundary on the right to abortion care. As neonatal care has improved in recent decades, more extreme pre-term babies have survived. But there is still a limit on how early a fetus can exit the womb and survive. Fetal viability is defined at the point in gestation after which 50 percent of babies born survive. Right now, fetuses are considered viable around 24 weeks’ gestation, which was also the lower limit of fetal viability when Roe v. Wade came down in 1973. Because crucial lung development occurs around that stage of pregnancy, without some major leaps in medical discovery, that line is unlikely to move during the next Supreme Court justice’s tenure. With so many pressing medical quandaries and public-health crises to address, many in the medical community don’t think it’s wise to spend boatloads of precious research dollars trying to find ways of keeping incrementally more-premature infants alive with increasingly aggressive interventions.
But that’s beside the point of Graham’s legislation. Pain has nothing to do with viability; medical science has not advanced such that a fetus at 20 weeks’ gestation is viable, necessitating a reevaluation of abortion laws. Graham is instead proposing doing away with the viability standard altogether to make way for restrictions that chip away at abortion rights until there’s nothing left. Several states already have 20-week abortion bans on the books, some of which are currently being challenged in court. Republican legislators have based their arguments for these unconstitutional laws on “fetal pain” studies whose authors say they’re being misrepresented, because there is no scientific evidence that fetuses experience pain at 20 weeks’ gestation.
Gorsuch has yet to rule on an abortion-rights case, but his past sympathies for Planned-Parenthood conspiracy theories, damaging stereotypes of working mothers, and people who want to use religion as an excuse to discriminate do not bode well for his commitment to upholding women’s rights. At the judge’s confirmation hearing on Tuesday, Graham told him he didn’t have to decide now whether 20-week abortion bans were constitutional. “I’m just letting everybody know that if this legislation passes, it will be challenged before you, and you will have to look at a new theory of how the state can protect the unborn,” Graham said. That new theory would mean nothing less than the end of the viability standard, the backbone of Roe as we know it.