Memo for Justice Kagan: A Lot Has Changed Since Roe and Casey

Charlotte Lozier Institute  

Babies Can Now Be Seen Clearly, Diagnosed, and Treated Before Birth


Washington, D.C.Justice Elena Kagan today stated during Dobbs oral arguments that “not much has changed since Roe and Casey.”  In reality, science and medicine have made tremendous advancements since 1973, including major advancements in ultrasound, fetal diagnosis, and the ability to treat babies in utero prior to birth.


Dr. Tara Sander Lee, senior fellow and director of life sciences at Charlotte Lozier Institute (CLI) said:


“Back in 1973, ultrasound technology displayed a baby using grainy, black and white dots.  It was difficult to identify major body parts, much less fetal behavior.  Now, 4D ultrasound enables us to see the baby cry after receiving an injection, smile, yawn, hiccup, suck their thumb, and even determine if the baby will be right-handed or left-handed.”


Click here for 4D ultrasound video of a baby (third trimester) reacting to an injection of anesthetic prior to surgery in utero. This technology enables early diagnosis of fetal malformations, which in many cases can be surgically-repaired in utero.


Medical advances since 1973 have also made it possible to save extremely premature babies at earlier and earlier ages, making the concept of “viability” fluid.  In a study released this summer, Dr. Robin Pierucci, a CLI associate scholar who serves as medical director of a 50-bed neonatal intensive care unit, wrote:


“In 1971, a widely used neonatology textbook stated, ‘The lower limit of viability is probably about 28 weeks, at which time most infants weigh two pounds, four ounces (1000g).’ A seasoned neonatal intensive care unit (NICU) nurse once told me that ‘back in the day, if a baby was 1000 grams or needed to go on the vent, we quietly got out a death certificate.’  Today, in the same NICU, infants weighing 400 grams and born at 22 weeks gestation have been successfully discharged home with minimal or no respiratory support or medications.”


Click here to read Dr. Pierucci’s full report, including citations.


Dr. Sander Lee added:


“Justice Kagan would be correct in saying that the baby hasn’t changed in 50 years, but our scientific understanding of the humanity of the unborn baby has advanced significantly.”



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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