Justice Sotomayor Is Wrong: Fetal Pain Is Not ‘Fringe Science’

Science Demonstrates Unborn Babies Capable of Pain at 12 Weeks

Washington, D.C. – Justice Sonia Sotomayor incorrectly claimed during today’s Dobbs oral arguments that the existence of fetal pain before 24 weeks is only believed by a “small fringe of doctors,” seeming to ignore modern peer-reviewed studies that have influenced the work of Dr. Stuart Derbyshire, one of the world’s leading neuroscientists, who writes that fetal pain is possible “from as early as 12 weeks.”

Dr. Derbyshire, whose 2010 work is cited in the abortion industry’s Dobbs response brief, was for many years considered a “leading voice against the likelihood of fetal pain.” He was previously on record rejecting the possibility of fetal pain prior to 24 weeks.

However, in response to a growing body of scientific evidence, Dr. Derbyshire last year changed his long-held position and published a peer-reviewed paper in BMJ’s Journal of Medical Ethics concluding that the cortex is not necessary for pain perception, and that “the evidence, and a balanced reading of that evidence, points toward an immediate and unreflective pain experience mediated by the developing function of the nervous system from as early as 12 weeks.”

According to a 2021 Charlotte Lozier Institute (CLI) analysis of the most up-to-date science on fetal pain:

“For decades, most neuroscientists have operated by the axiom of ‘cortical necessity.’  This is the idea that a cerebral cortex – the thin, convoluted, outer layer of the brain that activates between 24 and 30 weeks’ gestation – is required to perceive pain.

 

“There has long been evidence to the contrary.  But accumulating studies, especially two from 2016, strongly imply that cortical necessity is incorrect:  evidence shows subcortical (lower) brain structures that develop much earlier than 24 to 30 weeks are sufficient for pain perception.”

 

Complete citations and additional discussion are available in CLI’s 2021 report, “The ACOG Should Reconsider Fetal Pain.”

Dr. Maureen Condic, a CLI associate scholar and international expert on human embryology, discussed the science of fetal pain in CLI’s Dobbs amicus brief and explained the issue in a recent article for National Review. 

Dr. David Prentice, CLI’s vice president of research and an expert on stem cell research, had this reaction after hearing Justice Sotomayor’s comments during today’s oral arguments:

“Respectfully, we suggest that Justice Sotomayor follow the science, which has not stood still since Roe was decided in 1973.  Modern research is revealing that unborn babies do feel pain at an early stage, and we see that science in action regularly during fetal surgery, in which doctors apply analgesia in utero to prevent the suffering of the unborn child.”

Charlotte Lozier Institute was launched in 2011 as the education and research arm of Susan B. Anthony List. CLI is a hub for research and public policy analysis on some of the most pressing issues facing the United States and nations around the world. The Institute is named for a feminist physician known for her commitment to the sanctity of human life and equal career and educational opportunities for women.

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