President Obama’s nomination of Sonia Sotomayor for the
Supreme Court should shock no one. What
is surprising is the relative lack of information about Sotomayor and one of
the most perennially controversial Constitutional issues: abortion rights.
In her time on the bench, Sotomayor’s only major
abortion-related case was Center for Reproductive Law and Policy v. Bush – and her conclusion isn’t
going to warm the hearts of reproductive rights activists. In that case, the
Center for Reproductive Law and Policy (now the Center for Reproductive Rights)
challenged the Global Gag Rule, a policy which barred U.S. money from funding
any organization abroad that so much as mentioned abortion as an option or
advocated for abortion rights. 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 Amendment claim, CRLP argued
that the Gag Rule prevented the organization from fully communicating with
international non-governmental organizations; if non-U.S.-based NGOs worked
with CRLP to advocate for abortion rights in their own countries, they would
lose U.S. funding. Thus, the Gag Rule’s
speech-chilling effect prevented CRLP, a domestic organization, from carrying
out their mission, thereby curtailing their freedoms of speech and
association. CRLP also argued that the
Gag Rule violated their Fifth Amendment Equal Protection rights by privileging
anti-abortion views and putting the CRLP on unequal footing when it comes to
domestic competition with anti-choice organizations, and violated CRLP’s Due
Process rights by, as Sotomayor summarized in her opinion, "failing to give clear notice of what speech and
activities they prohibit and by encouraging arbitrary and discriminatory
The Second Circuit ruled against CRLP, and Sotomayor was the
judge who penned the decision. She held
that that a previous case — Planned
Parenthood Federation of America,
Inc. v. Agency for International Development – "not only controls
this case conceptually; it presented the same issue." In that case:
Court rejected the challenge on the merits, finding "no constitutional
rights implicated" by the Policy and the Standard Clause. Planned
Parenthood, 915 F.2d at 66. The Court reasoned that the domestic NGOs
remained free to use their own funds to pursue abortion-related activities in
foreign countries and that "[t]he harm alleged in the complaint is the
result of choices made by foreign NGOs to take AID’s money rather than engage
in non-AID funded cooperative efforts with plaintiffs-appellants." Id. at 64.
"Such an incidental effect" on the activities of the domestic NGOs,
the Court held, did not rise to the level of a constitutional violation. Id. The Court
concluded that "the Standard Clause does not prohibit
plaintiffs-appellants from exercising their first amendment rights." Id. Moreover, the
Court explained that whatever one might think of the Mexico City Policy,
"the wisdom of, and motivation behind, this policy are not justiciable
issues," and the Court found the restrictions to be rationally related to
the "otherwise nonjusticiable decision limiting the class of beneficiaries
of foreign aid." Id.
at 64-65. Having rejected plaintiffs’ claims on the merits, this Court declined
to address the question of whether plaintiffs had standing under Article III. Id. at 66.
Roe is gone. The chaos is just beginning.
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Amendment claim was dismissed because the issue had already been decided in the Planned Parenthood case. The Due Process claim was dismissed for lack
of prudential standing, because CRLP’s complaint did not fall within the "zone
of interests" protected by the Due Process Clause – it was a third party (the
foreign NGOs), not CRLP, whose rights are constitutionally unclear because of
the Gag Rule. The Equal Protection claim
was dismissed because the Gag Rule’s privileging of anti-abortion views did not
infringe upon a fundamental Constitutional right or target a suspect class
(legalese for a classification of groups which have historically been subject
to discrimination, and therefore receive increased scrutiny under the Equal
Protection Clause); further, Sotomayor pointed out that "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."
The Center for
Reproductive Law and Policy lost the case, and the Global Gag Rule continued to
compromise women’s health around the globe until Barack Obama took office.
disheartened feminists, liberals and reproductive justice advocates, and I wish
it had been decided differently. But the
decision wasn’t necessarily a bad one – and it absolutely should not stop
progressive women’s rights activists from supporting her nomination.
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. But she’s not a liberal dream
by any stretch. She has some bad First
Amendment cases to her name (Doninger
v. Niehoff, where she sided with a school that disqualified a student
from running for senior class secretary after the student posted a vulgar
school-related message on her blog), and some bad Fourth Amendment ones (United
States v. Howard, where she held it was constitutional for state
troopers to entice suspects away from their cars in order to allow other
troopers to search the vehicles for drugs).
Those cases, though, are the exceptions rather than the rule; generally,
Sotomayor follows a fairly consistent Constitutional philosophy, and errs on
the side of maintaining rather than limiting rights.
history, it’s hard to grasp why conservatives brand her "a liberal
activist of the first order who thinks her own personal political agenda is
more important than the law as written," as Wendy
E. Long, counsel to the right-wing Judicial Confirmation Network, put it. Sotomayor has clearly and consistently
deferred to "the law as written" — she’s considerably less activist and
dogmatic than Bush’s two Supreme Court appointees, John Roberts and Samual
Alito. Unfortunately for conservatives,
the law as written does affirm the rights to speak without governmental
intervention, to practice your religion freely, to be free from state-sponsored
religious exercises, to maintain your privacy, and to retain certain
protections even if you are a suspected criminal or a criminal defendant.
Sotomayor has embraced free speech rights even where the
speech was abhorrent (an NYPD officer mailing anonymous bigoted and racist materials
to charities requesting donations); stood up for victims of race, gender, age
and disability discrimination; and dissented
when the Second Circuit rejected a challenge to the New York law that
disenfranchises convicted felons. She is
by most accounts an intellectually gifted, hard-working and highly experienced
judge. So while there is unfortunately
little to go on with regard to her views on abortion rights, we know that
Sotomayor is a smart, capable left-leaning moderate. She’s not going to undo
years of a conservative court alone but she is highly qualified and undoubtedly
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.