Sotomayors Views On Abortion Privileges Are Unknown
Sotomayors nomination has reopened a politically and emotionally charged debate over abortion thats energized interest groups on the left and right – all working to draw members, money and attention by ensuring the issue features prominently in the judges confirmation hearings.
Unlike many liberal organizations that came out swiftly and enthusiastically to back Sotomayor, abortion-rights groups are withholding their support until she answers questions on the courts 1973 legalization decision and the principles behind it.
NARAL Pro Choice America has praised her experience and background but has stopped well short of endorsing her. “We look forward to learning more about Judge Sotomayors views on the right to privacy and the landmark Roe v. Wade decision as the Senates hearing process moves forward,” the groups president, Nancy Keenan, said Tuesday, the day the nomination was announced.
She declined through a spokesman Thursday to comment further on the subject. The group is asking supporters to urge senators to ask Sotomayor about Roe and the right to privacy.
Neither abortion rights advocates nor foes take any comfort from the abortion-related cases on which Sotomayor has ruled as a federal judge – none of which were decided based on the principles or precedents underlying Roe v. Wade.
“I dont think anybody can draw a conclusion,” said Charmaine Yoest, the president of Americans United for Life, which opposes abortion rights. “Given the fact that she has been so outspoken about the view that her personal opinions and personal characteristics come into play at the bar, thats very troubling to us.”
On the opposite side, Vicki Saporta, president of the National Abortion Federation, said: “We dont have enough information to take a position at this time. Were waiting to learn more about Judge Sotomayors views on the constitutional right to privacy, including the right to choose.”
The White House edged carefully around the issue Thursday in an animated question-and-answer session in which reporters pressed to know whether President Barack Obama had ascertained Sotomayors views before nominating her.
Robert Gibbs, the White House spokesman, said the two discussed Sotomayors “views on unenumerated rights in the Constitution and the theory of settled law” – both of which have been buzz-phrases for backers of the 1973 decision. In Roe, the court recognized a right to privacy even thought its not spelled out in the Constitution. Abortion-rights backers consider the decision “settled law” – a kind of super-precedent that has survived long enough without major challenge that it shouldnt be reconsidered.
Obama was “very comfortable with her interpretation of the Constitution being similar to that of his,” Gibbs said, declining to provide more specifics.
The White House says Obama didnt ask Sotomayor specifically about her view of Roe v. Wade or privacy rights, even though as a presidential candidate in 2007, he said, “I would not appoint somebody who doesnt believe in the right to privacy.”
Gibbs said he had “no reason to believe” any White House aide asked Sotomayor those questions either.
In the latest such ruling – of major concern to abortion rights supporters – the court upheld a nationwide ban on a procedure its opponents call partial-birth abortion, a decision both sides said could pave the way for further restrictions. It was the first abortion ruling in which the court didnt require an exception to preserve a womans health.
“On these sensitive high-stakes political issues, its always a very delicate matter in the selection process – no president wants to have a litmus test,” said Emma Coleman Jordan, a Georgetown University law professor and former Justice Department official who worked on Sandra Day OConnors 1981 nomination to the high court.
“There are ways to determine inclinations, but not through crude, direct questioning. … The process is not as hamhandedly political as the interest groups try to make it out to be,” Jordan said.
Obamas own pro-abortion rights stance has led many to assume that his chosen nominee would feel the same, but theres a history of presidents being unpleasantly surprised by their Supreme Court choices positions. Retiring Justice David H. Souter, whom Sotomayor would replace if confirmed, was named by former President George H. W. Bush and was widely expected to support overturning Roe, but in 1992 he sided with a majority to uphold abortion rights.
Sotomayors decisions give little clue about her views on the subject, although she has issued two rulings on unrelated legal issues whose results favored abortion rights opponents. In 2002, she dismissed a challenge by an abortion rights group to the so-called “Mexico City” policy of denying federal funding to organizations that provide or promote abortions. Two years later, she ruled that abortion rights protesters who had unsuccessfully tried to sue Hartford police officers for using excessive force against them should, in fact, get to go to court.