Amid all the coverage of Pres. Obama’s nomination of Sonia Sotomayor to replace David Souter on the Supreme Court, not a whole lot of attention has been given to her views on Roe v. Wade. Charlie Savage has an article about this subject in the New York Times:

In nearly 11 years as a federal appeals court judge, President Obama’s choice for the Supreme Court, Sonia Sotomayor, has never directly ruled on whether the Constitution protects a woman’s right to an abortion. But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents.
[…]
Because Judge Sotomayor is the choice of a president who supports abortion rights at a time when Democrats hold a substantial majority in the Senate, both sides in the debate have tended to assume she could be counted on to preserve the Roe decision.

Immediately after Mr. Obama announced his selection on Tuesday, leaders of several other abortion rights groups spoke out in support of Judge Sotomayor, and several conservative groups opposed to abortion rights attacked her, saying they were convinced that the president would not nominate someone who opposed abortion rights.

But in his briefing to reporters on Tuesday, the White House spokesman, Robert Gibbs, was asked whether Mr. Obama had asked Judge Sotomayor about abortion or privacy rights. Mr. Gibbs replied that Mr. Obama “did not ask that specifically.”
[…]
None of the cases in Judge Sotomayor’s record dealt directly with the legal theory underlying Roe v. Wade — that the Constitution contains an unwritten right to privacy in reproductive decisions as a matter of so-called substantive due process. Several of her opinions invoke substantive due process in other areas, however, like the rights of parents and prisoners.

She has also had several cases involving abortion-related disputes that turned on other legal issues. While those cases cannot be taken as a proxy for her views on the constitutionality of abortion, she often reached results favorable to abortion opponents.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.

In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

Of course, pro-choice does mean pro-choice, and China’s forced abortion policy does not give women any choice, so Judge Sotomayor’s rulings in the above cases are not conclusive about her views on abortion. It’s also possible that, even if she disagrees with the legal theory behind Roe v. Wade, she respects the authority of precedent even more. But it’s definitely something she should be asked about at her confirmation hearing.

The links in the above quote from Savage’s piece go directly to the pdf of each case, so if you’ve a mind to, you can read them.

Kathy Kattenburg

PAST CONTRIBUTOR.