As confirmation hearings for U.S. Supreme Court nominee Judge Sonia Sotomayor get under way, one item from the jurist’s past that is drawing attention is a 1989 amicus brief she apparently endorsed that urged the continued liberalization of abortion law. It offers insight into Judge Sotomayor’s views that, in the words of vocal abortion-rights advocate Bonnie Erbe of US News & World Report, should elicit a “big sigh of relief from the pro-choice crowd.”
The brief was submitted to the Supreme Court as it considered the case Webster v. Reproductive Health Services (1989). This case involved a challenge made by various abortion providers in the state of Missouri against a Missouri law that defined conception as the beginning of life and also made it unlawful for public officials or public facilities to be used for abortions.
Lending their signatures to the brief were numerous ethnically oriented interest groups, including the Women of Color Partnership Program of the Religious Coalition for Abortion Rights and a group to which Judge Sotomayor (who was not yet a jurist) belonged, the Puerto Rican Legal Defense and Education Fund. The PRLDEF is an public-interest firm that advocates for an end to anti-Hispanic discrimination via legal advocacy and legislation. Sonia Sotomayor was a member of its Board of Directors from 1980 until 1992, the year she was appointed a District Court judge of the Southern District of New York.
2009 Americans United for Life Fellow Patrick Nagorski summarizes the brief’s main points:
1. The reversal of Roe v. Wade would greatly and adversely affect poor women of color.
2. It is important to have a strict scrutiny threshold for judicial review of all laws regulating abortion. Only such a threshold will protect access to legal and safe abortions for poor women of color.
3. Any laws requiring abortions to be performed in hospitals would preclude abortions for poor women and women of color.
4. Restrictive regulations would deny access to abortion.
5. An “undue burden” threshold for judicial review would deny access to abortion.
6. Roe v Wade recognized that women have a fundamental right to choose or not choose to have an abortion.
This brief is important, Nagorski writes, because “Judge Sotomayor has avoided abortion decisions while she was on the bench. The one abortion decision that she made in Center for Reproductive Law and Policy v. Bush stated simply that the government has the right to choose or not choose to financially support or subsidize abortion. However, she was a leading member of the PRDF when it filed this amicus brief with the Supreme Court.
As AUL Senior Counsel Clarke Forsythe observes, “Now we know why President Obama said that Judge Sotomayor shared his view of ‘the Constitution’ and why the White House reassured pro-abortion organizations. If Judge Sotomayor holds the position that she signed onto via the PRDF’s brief, then, if an abortion-related case comes up on the docket, it will lead to her reading the Freedom of Choice Act (FOCA) into the Constitution by judicial interpretation.”
President Obama expressed his strong support for FOCA at the Planned Parenthood Political Action dinner in 2007. FOCA would declare that abortion is a “fundamental right” (equivalent to free speech under the First Amendment) and would empower federal courts to apply “strict scrutiny” to strike down any state and federal abortion regulations, such as parental-notification and informed-consent laws that are supported by a majority of Americans.
RELATED: For more information on the Freedom of Choice Act, see FightFOCA.com.
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