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“Virtually every state defines a brain death as death,” Sotomayor, appointed by former President Barack Obama, said during oral arguments in a potential landmark abortion rights case Wednesday, as the state of Mississippi defended an abortion restriction law that directly challenges Roe v. Wade.
Supreme Court Police officers erect a barrier between anti-abortion and pro-abortion rights protesters outside the court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, U.S., December 1, 2021. REUTERS/Jonathan Ernst (REUTERS/Jonathan Ernst)
“Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli,” Sotomayor continued. “There’s about 40 percent of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don’t think that a response to — by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness.”
Sotomayor also said that she believes the idea that a fetus is a human life is a “religious view.”
WASHINGTON, DC – DECEMBER 01: Abortion rights advocates and anti-abortion protesters demonstrate in front of the Supreme Court of the United States Supreme Court of the United States on Wednesday, Dec. 1, 2021 in Washington, DC. The Justices will weigh whether to uphold a Mississippi law that bans abortion after 15 weeks and overrule the 1973 Roe v. Wade decision. (Kent Nishimura / Los Angeles Times via Getty Images (Kent Nishimura / Los Angeles Times via Getty Images)
Sotomayor was criticized for her remarks by conservatives on social media including Fox News contributor Katie Pavlich.
“Justice Sotomayor is comparing babies in the womb to dead people,” Pavlich tweeted.
“Sotomayor is revealing just how poor the pro-Roe arguments are,” Breitbart News Senior Editor Joel Pollak tweeted. “Inadvertently, of course.”
“Oh good grief, Sotomayor playing the ‘brain death’ card now,” Ethics and Public Policy Center Director Ryan T. Anderson tweeted. “There is no dispute about whether or not an unborn the baby is in fact a baby, a living human being. It’s not a debate about when the baby is viable outside a womb, it’s a question about whether the baby’s life matters.”
FILE – In this Aug. 17, 2019 file photo, U.S. Supreme Court Associate Justice Sonia Sotomayor, speaks at the Mississippi Book Festival in Jackson, Miss. U.S. District Judge Esther Salas in New Jersey says the lawyer who killed her son and seriously wounded her husband also had been tracking Supreme Court Justice Sonia Sotomayor. . (AP Photo/Rogelio V. Solis)
The case, Dobbs v. Jackson Women’s Health, centers on the law, which bans most abortions after 15 weeks of pregnancy, much sooner than the current legal standard, which prohibits abortion bans prior to fetal viability — roughly 23 to 24 weeks into pregnancy.
Throughout the arguments, the justices alternated between examining not just the legal standards for abortion laws based on interests of women and protecting potential life, but also the court’s own interest in protecting itself from losing the faith of the public.
Fox News’ Ronn Blitzer contributed to this report