WASHINGTON — During the third day of her Senate Judiciary Committee nomination hearing, Republican senators continued peppering President Biden’s Supreme Court nominee Ketanji Brown Jackson Wednesday with questions about her views on abortion.
“Can an unborn child feel pain at 20 weeks?” asked Sen. Lindsey Graham (R-S.C.).
“I don’t know,” replied Jackson, who, if confirmed, would replace retiring Supreme Court justice Stephen Breyer.
Graham then asked whether Jackson was “aware of the fact that anesthesia is provided to the unborn child at that time period if there’s an operation to save the baby’s life, because they can in fact feel pain?” When Jackson said she was not aware of that, Graham put in, “Well, that may come before you one day, so just keep an open mind. That’s all I’m asking you to do,” he added.
Wednesday’s line of abortion questioning was a continuation of the day before, when Sen. Marsha Blackburn (R-Tenn.) said it was clear that Jackson disagreed with those who were pro-life. Blackburn said she found it “concerning” for a Supreme Court nominee to hold “such a hostile view toward a view that is held as a mainstream belief that every life is worth protecting.”
On Wednesday, when it was Sen. John Cornyn’s (R-Texas) turn, he noted that although fetal viability has been generally thought to occur at 28 weeks, “today, because of advances in medical science, the fetus can live outside the womb after about 23 weeks.”
When he asked Jackson if that was her understanding, she answered, “Senator, I haven’t studied this, so I don’t know that.” Cornyn then asked Jackson what she understood “viability” to mean when it comes to an unborn child.
“Senator I hesitate to speculate — I know that it is a point in time that the court has identified in terms of the standards that apply to regulation of the right [to abortion],” Jackson said.
In response to another viability question, she later added that “I’m not able to comment on viability. There’s a case pending in the Supreme Court right now concerning these issues.”
Cornyn continued his line of abortion-related questioning, asking Jackson about one of her previous decisions in which she mentioned that the Supreme Court had “articulated a limited right to terminate a pregnancy.” He asked her what she meant by “limited”.
“Under current law, as I understand it, there are limitations insofar as there can be regulation of … pre-viability, unless the regulation imposes an undue burden on the exercise of the right,” Jackson said. “And there can be regulation after viability as as long as there’s exception for the health and I think maybe life of the mother.”
Cornyn also brought up a lawsuit involving Little Sisters of the Poor, a group of nuns who don’t believe in contraception or abortion and therefore objected to an Obama administration rule requiring all employers who provide health insurance to include coverage for contraceptives. He noted that while the Obama administration had given churches a waiver from that rule, “the Trump administration expanded the regulations to allow not only churches, but also religious organizations like the Little Sisters of the Poor a waiver from the mandate.”
“Are you familiar with the fact that President Biden has said he would restore the previous regulation that was promulgated under the Obama administration, and exclude organizations like the Little Sisters of the Poor from that waiver?” Cornyn said.
Jackson responded that she was unaware of that fact.
Sen. Mike Lee (R-Utah) wanted Jackson’s opinion on Stenberg v. Carhart, a case in which the Supreme Court upheld the legality of a procedure known as “partial birth” abortion. He asked Jackson to distinguish between that case and another case known as Gonzales v. Carhart, in which the high court ruled in the opposite direction, upholding a ban on the procedure.
“I think it had to do with the method of extraction, the fact-finding related to the procedure,” Jackson said. “In one case, the district court had made some findings and the [Supreme] Court felt bound by them. In another, there were considerations beyond those that were previously relied on. So there were distinctions that the court looked at and relied on.”
Blackburn asked about a related issue.
“Some have argued that bills seeking to protect children who survived abortions are unconstitutional,” she said. “They say that the right to an abortion includes the right to an effective abortion. So in other words, does the constitutional right to an abortion include the right to let a baby die if that baby unintentionally survives an abortion? I’d like to know if you agree with that.”
Jackson declined to answer. “Issues like the one that you have raised are in the court system now, and as a result, as a nominee to the Supreme Court, I’m not able to opine about the constitutionality or not of the kinds of legislation that you mentioned,” she said.
The committee is scheduled to meet on Monday in closed session to discuss and vote on whether to send Jackson’s nomination to the Senate floor. She is considered likely to be confirmed by the full Senate because Democrats — and the two Independent senators who generally vote with them — constitute a majority, though Democratic leaders are hoping to pick up a few Republican votes as well. Democrats also want to get the full Senate vote accomplished before the Senate leaves for the Easter/Passover recess, which is scheduled to begin on April 11.
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