Sotomayor's record shows she's no sure vote on abortion

Judge Sonia Sotomayor of the Court of Appeals for the Second Circuit.
Judge Sonia Sotomayor of the Court of Appeals for the Second Circuit. Olivier Douliery/Abaca Press/MCT

WASHINGTON — The killing of a prominent abortion doctor brought anti-abortion activists Monday to the Supreme Court and fresh attention to high court nominee Sonia Sotomayor's ambiguous stance on the hot-button issue.

Activists on all sides can find solace in different parts of Sotomayor's record on the 2nd U.S. Circuit Court of Appeals. She backed some abortion clinic protesters and a restrictive Bush administration policy on international family planning. At other times, she agreed with prosecutors who were seeking to charge clinic protesters with criminal contempt.

In Sotomayor's 11 years as a New York-based appellate judge, however, she's never squarely confronted the core questions surrounding abortion.

"We don't know what her views are on the constitutional issue," Nancy Northup, the president of the Center for Reproductive Rights, an abortion-rights advocacy group, said in a telephone interview Monday.

Northup's organization usually clashes with the anti-abortion activists who convened Monday morning at the Supreme Court in the wake of the killing Sunday of Wichita, Kan., physician George Tiller. Both sides, though, agree that Sotomayor's abortion-related views have yet to be fleshed out.

Unlike race and gender, abortion apparently hasn't inspired her to offer any out-of-courtroom commentary. In her legal opinions, she's largely confined herself to observations such as those in a 2007 Chinese asylum case, in which she noted the "unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage."

Sotomayor is Roman Catholic, as are five other members of the Supreme Court. With the exception of Justice Anthony Kennedy, who in a key 1992 case helped sustain a woman's right to choose abortion, the court's other Catholic members are staunch opponents of abortion.

Sotomayor hasn't had to rule on the reach of Roe v. Wade, the 1973 Supreme Court case that linked abortion rights to the constitutional right to privacy. Neither has she considered more recent variations, such as bans on late-term abortions or parental-consent requirements.

Instead, Sotomayor has faced ancillary issues, including the complaints of abortion clinic protesters, requests for asylum from women fleeing forced abortions and the power of a president to limit abortion-related spending.

In 2002, for instance, a New York-based organization that then was called the Center for Reproductive Law & Policy challenged the Bush administration's so-called "Mexico City Policy." The policy, first adopted by President Ronald Reagan in 1984, required foreign family-planning organizations, as a condition of receiving U.S. funding, to refrain from performing or promoting abortions.

Some organizations, including the International Planned Parenthood Federation, forfeited U.S. funding rather than accept the restrictions. Sotomayor dismissed claims that the policy violated free-speech rights.

"The government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds," Sotomayor wrote, noting that the 2nd Circuit appellate court had dismissed nearly identical free-speech claims in 1990.

Northup of the Center for Reproductive Rights, the new name for the organization that filed the lawsuit, said that Sotomayor "and the others felt the precedents were against us." She added, though, that Supreme Court justices can rewrite precedents in a way that appellate judges cannot.

In 2004, an anti-abortion group called Amnesty America won a procedural victory as well as a tongue-lashing from Sotomayor. That case, though, shows more about Sotomayor's impatience with sloppy lawyering than it does about her views on abortion.

Amnesty America claimed that police had treated its members brutally during protests in 1989 in West Hartford, Conn. Sotomayor agreed that the case appeared strong enough to go to trial, but she also warned Amnesty America's attorney that he faced eventual disciplinary action if he didn't shape up.

"The sheer number of cases in which his unprofessional conduct has been cited indicates that judicial expressions of disapproval alone have not succeeded in convincing him to alter his behavior," Sotomayor cautioned.

In a similar vein, Sotomayor's occasionally combative approach colored a 2nd Circuit decision in 2007 involving Chinese asylum seekers. She wrote separately and emphatically to say that the asylum rules also should protect spouses.

"I fail to understand how the majority can claim that the harm caused by a spouse's forced abortion or sterilization is not a personal harm to both spouses," Sotomayor wrote.


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