Sotomayor and abortion

Did she really uphold the global gag rule?

Published May 27, 2009 10:28PM (EDT)

Even amidst the deserved and moving kudos, some feminist organizations' responses to Judge Sotomayor's nomination have seemed just a teeny bit ... polite. That, as Judy Berman noted here yesterday, is because few reproductive rights advocates were fans of Sotomayor's ruling in Center for Reproductive Law and Policy v. Bush -- her only major decision involving abortion -- in which she sided with, well, guess who. Upholding a challenge to the late, unlamented "global gag rule" (Mexico City Policy), Sotomayor noted that (as often quoted) "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds." (So maybe these guys should be more polite.) 

But was that decision as dismaying as it looks? Not necessarily, argues Jill Filipovic over at RHReality Check. "That outcome disheartened feminists, liberals and reproductive justice advocates, and I wish it had been decided differently," she writes. "But the decision wasn't necessarily a bad one -- and it absolutely should not stop progressive women's rights activists from supporting her nomination."

How's that? Long legal story short, Sotomayor's decision -- Filipovic explains -- turned on the letter of constitutional law, not the right to abortion (or, really, to speak about abortion). The Center for Reproductive Law and Policy (CRLP) argued that the Gag Rule violated their First Amendment, Equal Protection and Due Process rights. On the first claim, for example, Sotomayor deferred to precedent set by a previous case brought by Planned Parenthood that, she said, "not only controls this case conceptually; it presented the same issue" -- and which, it was decided, the harms described did not rise to the level of Constitutional violation. (The court in that case, and later Sotomayor, also noted that "the wisdom of, and motivation behind, [the Mexico City Policy] are not justiciable issues.") And I can't help but notice that the full quote cited above was actually this [emphasis mine]: "The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds." Sounds a bit different that way, no? Like the precedent or not, Sotomayor was merely citing, not opining.

Other blogs address Sotomayor's other two abortion-related cases: Amnesty America v. Town of West Hartford, in which she ruled -- as a matter of criminal procedure and civil liability -- in favor of the rights of anti-abortion protesters, and Lin v. Gonzales, where she ruled -- as a procedural matter -- in favor of a Chinese woman seeking asylum from her country's forced sterilization and abortion policies. (And that one, if you think about it, should make everybody happy.)

So you see why anti-choice groups are going a little cuckoo trying to find something, goddamn it something, to bust her with. Filopovic explains why Sotomayor's "bad" First and Fourth Amendment decisions mean that she's hardly a "liberal dream."

But "if anything, CRLP v. Bush highlights precisely why Sotomayor should, in a sane world, be an easy confirmation: She sticks to the rule of law, respects precedent and writes thoughtful and reasoned opinions. She was nominated to the federal district court by George H.W. Bush. Her decisions are left-leaning insofar as she generally seeks to protect Constitutional rights by supporting religious freedom and free speech, and she often sides with the plaintiffs in discrimination cases -- hardly 'activist' material," Filipovic writes. "Sotomayor would not have been my first choice, primarily because my political leanings are far to the left of her legal theory. But I'll be supporting her whole-heartedly. Her trail of opinions paints a picture of a fair-minded, incisive legal scholar who is unafraid to stake out unpopular but legally meritorious positions. Right-wingers are going to oppose her nomination with full force -- we would be foolish to do it for them."


By Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of She also writes for the New York Times, Glamour, and many others.

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