When President Obama nominated Judge Sonia Sotomayor to the U.S. Supreme Court, the conventional wisdom was that she would be an apt replacement for retiring Justice David H. Souter, maintaining the high court’s “balance” — or, more accurately, its lopsided liberal tilt.
But Team Obama knows something most Americans don’t. When it comes to the landmark 1973 decision Roe v. Wade and the abortion cases that have since made it to the Supreme Court, Sotomayor is no Souter. Rather, her record shows that for the overwhelming majority of Americans who support at least some restrictions on abortion, she is worse than Justice Souter — reading a “fundamental right” to abortion into the Constitution.
On the basic issue of whether Roe v. Wade is settled precedent, Justice Souter is a reliable vote for the high court’s liberal wing. He has refused to take the opportunity, in cases such as Planned Parenthood v. Casey, to re-examine the judicial basis for permitting legal abortion. But when it comes to common-sense restrictions on abortion, Justice Souter has voted repeatedly to uphold laws such as informed consent and parental notification — which polls show are supported by at least 70 percent of the American public.
Not so Justice Sotomayor, whose activism before becoming a federal judge reveals strong and consistent opposition to common-sense regulations. From 1980 to 1992, she was a governing board member of the Puerto Rican Legal Defense and Education Fund (PRLDEF) where, according to the New York Times, she “was an involved and ardent supporter of their various legal efforts.”
Those efforts included no less than six briefs in five abortion-related cases before the Supreme Court — pushing aggressively for an interpretation of abortion rights that would eliminate most or all state and federal abortion regulations while requiring state and federal funding of abortion. In two of those cases, Rust v. Sullivan (1991) and Planned Parenthood v. Casey (1992), the PRLDEF’s briefs took positions more extreme than those of Justice Souter, who joined with the court’s majority to uphold restrictions the fund wanted struck down.
Justice Sotomayor has never disavowed any of the PRLDEF’s briefs, which are packed with the kind of extreme rhetoric more typical of left-wing blogs than of serious legal documents. They refer to unborn “lives” in derisive scare quotes and claim that minors seeking abortions need to be protected from parents’ religious “indoctrination.”
Witness the fund’s brief in Ohio v. Akron Center for Reproductive Health (1990), opposing a parental-notification law (which the Supreme Court would uphold). It questioned “whether the ostensible secular purposes [of the law] are ‘sham,’ in light of the fact that abortion is singled out for notice from other, at least, equally life-shaping reproductive choices based on a purpose to save ‘lives,’ and that parents who are religiously opposed to abortion are among its primary beneficiaries.”
The differences between Justice Souter’s and Justice Sotomayor’s philosophies show up most sharply in the Planned Parenthood v. Casey verdict, in which the court refused to overturn Roe v. Wade but permitted common-sense abortion regulations such as 24-hour reflection periods.
Whereas the PRLDEF asserted in its brief for that case — as in other briefs it filed on Justice Sotomayor’s watch — that abortion was a fundamental right, Justice Souter explicitly denied that it merited the strongest constitutional protection.
The PRLDEF’s argument was that abortion’s constitutionality was akin to free speech — though free speech is protected in the First Amendment, while abortion does not appear in the Constitution. Therefore, the fund argued, regulations against abortion must be subject to the most stringent level of judicial review, known as “strict scrutiny.”
Justice Souter, with Justices Anthony M. Kennedy and Sandra Day O’Connor, wrote an opinion rejecting the strict-scrutiny standard. Instead, the justices created a new standard of review for abortion regulations, “undue burden,” acknowledging the legality of any regulation that does not place a “substantial obstacle in the path of a woman” seeking a pre-viability abortion. Although Roe remained untouched, Justice Souter’s standard was far less radical than the PRLDEF’s argument that any “burden” upon women seeking abortion was unconstitutional.
When Sen. Jim DeMint, South Carolina Republican, asked Justice Sotomayor last week if the unborn had any rights whatsoever, she answered she had “never thought about it.” Justice Souter, for all his liberal rulings, has at least given some thought to the rights of those who cannot speak for themselves. Justice Sotomayor’s lack of reflection combined with her record of abortion activism shows that, with her on the court, the unborn would be at greater risk than ever before.
Charmaine Yoest is president and chief executive officer of Americans United for Life (AUL), the oldest national public-interest law and policy nonprofit organization. AUL has been involved in every pro-life case before the Supreme Court since Roe v. Wade.
By Andrew P. Napolitano
The president's men trash the Constitution to pursue antagonists