Is Sotomayor "Pro-Choice" Enough?

Now, some abortion rights advocates are quietly expressing unease that Judge Sotomayor may not be a reliable vote to uphold Roe v. Wade, the landmark 1973 abortion rights decision. In a letter, Nancy Keenan, president of Naral Pro-Choice America, urged supporters to press senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.

This gives me reason to be hopeful. Let me say that I know Judge Sotomayor is a Catholic, but that is not the reason - indeed, the criticism that has been leveled at her statement that a "wise Latina woman" can reach a better decision than a white man and thus she is more likely to rule on empathy rather than legal anaylsis is equally applicable to a belief that her Catholic faith would cause her to protect the unborn.

However, notwithstanding her considerable reversal record and with the disclaimer that I have not read her opinions in the cases mentioned above, it appears Sotomayor has not let popular opinion sway her analysis. Which is a good thing, because Roe v. Wade rests on unsteady legal ground in its reasoning by the Court. It would be easy for a Supreme Court Justice, who is seemingly "pro-choice," to overturn Roe and say it is a state issue, and it is up to the individual states to determine their stance on abortion.

But I am only hopeful - the cases above do not deal directly with the issue of whether a woman in America has a constitutionally protected right to an abortion. The overseas funding case is likely about the power of the executive branch, the protestor case is likely about free speech, and the immigrant case is likely about what factors should be weighed in granting political asylum. NARAL is nervous because Sotomayor has no track record on abortion, and for us pro-lifers, it remains improbable that Obama would not appoint someone who is firmly pro-choice.