By Robert Barnes and Michael D. Shear
Washington Post Staff Writers
Friday, May 29, 2009
The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights, delivering strong but vague assurances that the Supreme Court nominee agrees with President Obama's belief in constitutional protections for a woman's right to the procedure.
Facing concerns about the issue from supporters rather than detractors, White House press secretary Robert Gibbs said Obama did not ask Sotomayor specifically about abortion rights during their interview. But Gibbs indicated that the White House is nonetheless sure she agrees with the constitutional underpinnings of Roe v. Wade, which 36 years ago provided abortion rights nationwide.
"In their discussions, they talked about the theory of constitutional interpretation, generally, including her views on unenumerated rights in the Constitution and the theory of settled law," Gibbs said. "He left very comfortable with her interpretation of the Constitution being similar to that of his."
In a 2007 debate during the campaign, then-candidate Obama said, "I would not appoint somebody who doesn't believe in the right to privacy." The Supreme Court found that the right to privacy provided a woman the choice to terminate a pregnancy in its early stages.
The president's advisers could not point to a specific basis for Obama's belief that he and Sotomayor share the same view on the issue, other than their general conversation about judicial philosophies. In nearly 20 years as a district judge and on the U.S. Court of Appeals for the 2nd Circuit in New York, Sotomayor has not confronted constitutional questions about the issue.
Several aides said they do not think the issue came up in the preliminary conversations that Sotomayor held with White House staff before her interview with the president. And one senior adviser said the reports that were compiled by lawyers for Obama referenced only her relatively sparse legal record on the issue.
But White House officials appeared eager to send a message that abortion rights groups do not need to worry about how she might rule in a challenge to Roe v. Wade.
"He did not specifically ask, as we've stated for the past several days," Gibbs said. "But as I just said, I think he feels -- I know he feels -- comfortable, generally, with her interpretation of the Constitution being similar to that of his."
Officials said they had private conversations yesterday with groups on both sides of the abortion debate. Senior Senate Democrats said they expect that liberal Democratic senators will raise the issue with Sotomayor in private meetings next week on Capitol Hill.
Sen. Barbara Boxer (D-Calif.), one of the Senate's leading abortion rights supporters, said she will not specifically ask Sotomayor about Roe but said she has no reason to doubt Sotomayor's position on the issue. "I feel as comfortable as I could possibly feel," Boxer said.
The abortion issue is likely to arise in Sotomayor's confirmation hearings in July, in part because of her background as a Catholic. But she is unlikely to offer any more clarity than have previous nominees. Chief Justice John G. Roberts Jr., for instance, ducked the question during his 2005 hearings by saying that Roe is "settled as a precedent of the court."
Sotomayor is nominated to join a court that is fundamentally split on the issue. In its last major decision, the court ruled 5 to 4 in 2007 to uphold the federal Partial-Birth Abortion Ban Act. It was the first time the court approved the ban of a specific abortion procedure and the first time it approved an abortion restriction that did not include an exception to protect the health of the woman.
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.