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White House Tries to Quell Abortion Rights Supporters' Fears About Sotomayor
The justice Sotomayor would succeed, David H. Souter, was in the minority in that case, so her vote would not have altered the outcome.
But Souter was one of the three authors of the 2002 decision that upheld the basic tenets of Roe. Abortion rights supporters think that Roe survives today with the support of the four liberals on the court, among them Souter, plus Justice Anthony Kennedy. Replacing Souter with someone who does not support Roe would obviously imperil the right.
National abortion rights groups have issued welcoming but cautious statements on the judge's nomination, and have called on the Senate to discern her views. But the groups have been reluctant to publicly challenge the White House on the issue, declining requests to comment further on their concerns.
Sotomayor's most notable decision on abortion came in 2002, when she ruled against abortion rights advocates who wanted to challenge what is known as the Mexico City rule. It forbade overseas organizations that receive U.S. funds from providing or promoting abortion services. The rule has been a political football, put in place by Republican presidents and rescinded by Democrats, most recently by Obama in January.
Sotomayor's decision reveals nothing about abortion rights but relies on precedents from the Supreme Court and the 2nd Circuit to deny the challengers' suit to go forward. "We have been over this ground before," Sotomayor wrote, noting a previous case before the court that raised almost identical issues.
"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," she concluded for the unanimous three-judge panel.
Even more tangentially, Sotomayor has ruled that a suit brought by a group of abortion protesters who claimed police brutality could go forward; it focused on questions of municipal liability. And in cases involving deportation to China, she has written about the country's sterilization and forced abortion standards. In one case, she talked about how husbands would be affected: "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."
In the few days since Sotomayor's nomination, no record of her personal feelings on the issue have emerged; some former clerks say they do not remember discussing it with her. George Pavia, senior partner in the law firm that hired Sotomayor as a corporate litigator before her days on the bench, said he thinks that support of abortion rights would be in line with her generally liberal instincts.
"I can guarantee she'll be for abortion rights," Pavia said.
Also before she was a judge, Sotomayor served on the board of the Maternity Center Association, a Manhattan nonprofit group that focuses on improving maternity care for women.
Carol Sakala, director of programs for the organization (now called Childbirth Connection), said today that it "deals exclusively with women who want to carry their pregnancies to term" but has never taken a position on abortion. She said abortion has never come up at a board meeting in the more than 10 years she has worked there and is not discussed in her daily work.
"We have no reason to have a position on abortion. We aren't involved in any manner with that issue," Sakala said. "There's no paper trail on it, because it's not relevant to our work."
Staff writers Paul Kane, Jerry Markon, Shailagh Murray and Keith B. Richburg contributed to this report.