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 A challenge to a Texas law, originally enacted in 1854, led to the Supreme Court's famous 7-2 ruling that described a constitutional "right of privacy" that encompassed a woman's right to "an abortion free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.

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    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.