Sotomayor Nomination Renews Roe V. Wade Debate

(AP Photo/Alex Brandon)

For over three decades, the topic that matters the most during a Senate confirmation hearing for an aspiring member of the U.S. Supreme Court has remained the same: abortion.

Until the Roe v. Wade decision in 1973, abortion had been a matter of state law, with some states broadly permitting abortions, and others imposing strict limits on the procedure. A challenge to a Texas law, originally enacted in 1854, led to the Supreme Court's famous 7-2 ruling that described a constitutional "right of privacy" that encompassed a woman's right to "an abortion free of interference by the state."

That brings us to President Obama's announcement on Tuesday that federal appeals court judge Sonia Sotomayor would be his pick for the next Supreme Court justice.

Sotomayor hasn't ruled on a case dealing directly with abortion rights -- and in any event would be obliged to follow Roe v. Wade's dictates -- but pro-life and pro-choice groups have already formed into their now-traditional battle lines.

The Judicial Confirmation Network called Sotomayor a "hard left judicial activist." Americans United for Life said she would "impose her personal policy and beliefs onto others from the bench," and pointed to a YouTube video saying that courts of appeal are where "policy is made."

NARAL Pro-Choice America lauded Sotomayor's "distinguished record." The National Organization for Women said it was hoping for a "swift confirmation."

Perhaps Judge Sotomayor's most relevant abortion case arose in 2002, when pro-choice groups filed suit against the Bush administration's requirement (since overturned under Obama) that government funds must not be used to promote or perform abortions. The case is called Center for Reproductive Law and Policy vs. Bush.

While the issue at stake in the case was free speech under the First Amendment and due process, not abortion rights, Sotomayor did end up siding with the Bush administration. "The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds," she wrote in an opinion joined by the other two judges on the panel.

Another Second Circuit opinion written by Sotomayor dealt with West Hartford, Conn. police officers accused of using excessive force after blocking pro-life protesters who blocked access to an abortion clinic by locking themselves together. She and her other panel members allowed the protesters' civil rights case to continue. (A third opinion ordered renewed consideration of asylum claims by a Chinese woman allegedly facing forcible birth control.)

White House spokesman Robert Gibbs said on Tuesday afternoon, in response to a question about abortion rights and Sotomayor's religion: "There was no litmus test and the president did not ask that specifically. I believe she was raised Catholic." (In August 2008, Mr. Obama said that a Supreme Court nominee who didn't support Roe v. Wade "would not have the kind of judicial philosophy that I generally believe in.")

One reason why Roe v. Wade became a polarizing ruling that reshaped the American political firmament is that the opinion's author, the late Justice Harry Blackmun, tied abortion rights to a constitutional "right of privacy" that "is broad enough to cover the abortion decision" -- even though the word "privacy" appears nowhere in the text of the U.S. Constitution or its amendments.

His legal reasoning, Blackmun wrote, "is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day."

Another reason why both pro-choice and pro-life groups will be paying close attention to Sotomayor's views is the example of retiring Justice David Souter, whose seat she was chosen to fill. Conservatives are still smarting from President George H.W. Bush's choice of Souter, who was little-known at the time and was selected in part because the elder Bush wanted to avoid a bruising Bork-era confirmation battle.

Not long after his confirmation, Souter co-authored the majority opinion in Planned Parenthood v. Casey, a Supreme Court decision that explicitly reaffirmed Roe v. Wade. "Although Roe has engendered opposition, it has in no sense proven 'unworkable,'" the 1992 opinion says. "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed."

Souter also took a similarly broad view of abortion rights in the 2007 partial-birth abortion case, in which a 5-4 majority upheld a federal law targeting any physician who intentionally "kills the partially delivered living fetus." (In that case, he was in the minority.)

That example is probably why the Center for Reproductive Rights signaled some concern on Tuesday, saying that it wants the Senate Judiciary committee to verify Sotomayor's "commitment to the principles of Roe v. Wade." An e-mail message from the group asks supporters to lobby Senate Judiciary Chairman Patrick Leahy to require "full disclosure."

Meanwhile, liberal activists on the Daily Kos blog are already fretting that "Sotomayor is a stealth ANTI-CHOICE supreme court pick." Steve Waldman of Beliefnet.com suggests that the nominee is "an abortion centrist." And some Catholic pro-life bloggers are saying :"We've dodged a bullet. It could have been much worse..."

Nobody, of course, expects Roe v. Wade to vanish anytime soon; for one thing, a recent CNN poll suggests that 68 percent of Americans would keep it intact. As Justice Stevens noted in 1992: "In the last 19 years, 15 Justices have confronted the basic issue presented in Roe v. Wade. Of those, 11 have voted as the majority does today..."

Even if it were overruled, nothing would change for residents of west coast states and almost every state in the Northeast: their legislatures would likely continue to permit current access to abortion. It would be the south and the industrial rust belt, a total of 22 states, that would impose "significant new restrictions on abortion," according to a 2006 survey by USA Today.

Assuming Sotomayor can gracefully decline to answer questions about abortion rights (and related penumbras and emanations) during her Senate confirmation hearings, Roe v. Wade won't trip up her expected confirmation. Questions about identity politics, including a race case currently before the Supreme Court, stand a slightly better chance of doing that.

Sonia Sotomayor: More Coverage And Analysis

Stories:

• Liberals Concerned About Sotomayor's Abortion Views
• W.H. Urged To Address "Racist" Charge
• Who Could Lose In A Confirmation Vote?
• Rigorous Questioning Hasn't Fazed Nominee
• Battle Lines Form Over High Court Pick
• Limbaugh, Gingrich: Sotomayor Is "Racist"
• Ad Supporting Sotomayor Released
• Declan McCullagh: Gun Rights Groups Are Wary Of Sotomayor
• Former Clerk: Sotomayor's A "Legal Purist"
• Sotomayor Unites Disparate Hispanic Groups
• WhiteHouse.gov Transparency? Not In Supreme Court Pick
• Declan McCullagh: Nomination Renews Abortion Debate
• Jeff Greenfield: A Political Matter
• Mark Knoller: How Obama Picked Sotomayor
• Steve Chaggaris: Obama Pick Leaves GOP In Difficult Spot
• Obama Taps Sonia Sotomayor For High Court
• Sonio Sotomayor's Biography
• Early GOP Reaction
• Full Text: Obama And Sotomayor's Comments


Andrew Cohen's CourtWatch Blog

• Do Judges "Make Policy"?
• Sotomayor - A Three-Part Harmony
• The First Day Of The Rest Of Her Life
• When Worlds Collide - Prop 8 and Sotomayor
• More CourtWatch


Video:

• Obama And Sotomayor
• Sotomayor A Hometown Hero
• Will She Get The Job?
• Sotomayor In Depth
• Analysis: Bob Schieffer | Wyatt Andrews | Andrew Cohen | John Dickerson


Features

• Photo Essay: Sonia Sotomayor
• Timeline Of Sotomayor's Life

[tangouniforn]

From its inception, the Roman Catholic Church has tried to force its version of religion on others using the tip of a spear. Now their leader (bears no resemblance to Jesus) says that an abortion is killing a baby. It does not matter that it is an undifferentiated cluster of cells. Or even a single cell. Abortions were commonplace in the Roman empire, so let?s follow what Jesus had to say about that. NOTHING! Of course the leader of the RCC knows much more about Christianity than Jesus. Jesus would have never condoned such an institution as the Inquisition. The inquisition is exactly what the RCC and many of its members are attempting to do in this country. That is what happens when a cult starts to get too much power.

Tango Uniform

[starleo146]

" don't understand how any woman or any person of color can be a conservative. Conservatives would have kept women and others without legal rights. Jesus Christ was a radical community organizer! Wonder what conservatives would have said about him"?
Posted by cregis at 4:53 AM : May 27, 2009

Some believe a woman should be at the command of her husband they say it is in the bible. Obey and jump when you are spoken to ya here.

[starleo146]

You will never change a redneck right wing conservative republican. They are in a mind set that of no other , for the life of me I have tried to comprehend their rhetoric, but it leads me every time to say WHAT!!!! May they be defeated in the next election, and become so small they can ever repeat the awful things that come out of their mouths. Regardless if they dislike Obama we have a country in dire need, and they haven't helped with anything except vote NO, whine, gripe and, and complain. Our country is better than that, and why are they there representing this country> There are some democrats as well that have got away with a lot as well, so get rid of them when you vote, do not be afraid DODD Reid Byrd who can hardly turn a page he is trying to read he was a member of the KKK and he says he is over it but has voted No all along with the republicans this comes to mind, if they cannot contribute get out of the senate.

[culturechang]

Why is it "a woman's body" when it comes abortion, but that same body suddenly becomes govt property when it engages willingly in prostitution?

[mattcat25]

I see this will work out keeping the entire Right Wing occupied while the rational people tend to the business of running the country.

[cbs_tom]

"Regardless of any decision by the Supreme Court, abortions will continue whether legally or illegally"
Posted by polisigh at 8:07 AM : May 27, 2009

Stealing and murders will also continue whether we create more laws or not. This question is simple. At what point is there a child with seperate DNA in the womb of the mother. At that point, the child is an individual and not a blob.

[polisigh]

Regardless of any decision by the Supreme Court, abortions will continue whether legally or illegally, whether in a safe environmennt or a dangerous environment. Only those who cannot afford a procedure will be denied if Roe v. Wade is overturned.

[cbs_tom]

" don't understand how any woman or any person of color can be a conservative. Conservatives would have kept women and others without legal rights. Jesus Christ was a radical community organizer! Wonder what conservatives would have said about him"?
Posted by cregis at 4:53 AM : May 27, 2009

The problem here is that the term "conservative" is stereo typed into one category. All conservatives are not republicans. To be a conservative does not mean that one is racist. To be a conservative does not mean that wifes are to be in the kitchen barefoot and pregnant. This has been the political strategy of the left to demonize anyone labeled as a conservative.
I would consider myself conservative in the way I live my life and worship God. I do believe that we should take care of one another in that no one should starve or be denied medical attention. It is stated that God wants us to love one another like his love for us. The greatest love is that in which one would sacrifice themself for another. Many get on this forum and blast others for their sin. Yes, God said to repent and turn away from sin. But, where is the love when the sinner is getting bashed. Why would he/she want to turn towards God if they only see hate in you? Love as God love you.

[mattcat25]

Maybe this issue should include some opinion from more then just one woman?

[deep_throat]

It's 2009 and seems some still want to tell a woman what to do with her body :(
Posted by gophavelostagain at 6:24 AM : May 27, 2009

No one is telling a woman what do with her body. They are telling her what to do with the body of her unborn child. The question keeps getting wrongly framed as a women's rights issue when it is really a human rights issue.

The question is: does the child in a womb have a right to survive or not?

Some say it only has these rights after 6 months of development in the womb. Others say it has those rights right from the time of conception. Some others say a baby has rights to live only after is born. Yet still others more extreme say that it has those rights only after it becomes self-aware a few months after birth.

I do not know the right answer. No one does. We can only draw lines in the sand and that is why there is so much debate.