During Supreme Court nominee Judge Sonia Sotomayor’s confirmation hearing before the Senate Judiciary Committee, many senators asked questions regarding the “right to privacy,” abortion, and whether the law pertaining to these issues is “settled law.” Judge Sotomayor’s answers were cautious at best, and even evasive.
What Judge Sotomayor Said — and Should Have Said
However, answering these questions should not be difficult. Here are some of Judge Sotomayor’s incomplete and inadequate answers to life questions, followed by what Americans United for Life’s legal team believes she should have said.
On the “Right to Privacy”
Sen. Al Franken (D-Minn.) asked: “Do you believe that the Constitution contains a fundamental right to privacy? . . . Do you believe that this right to privacy includes the right to have an abortion?”
Judge Sotomayor said: “It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process clause that extends to the right to privacy in certain situations . . . The court has said, in many cases, and as I think has been repeated in the court’s jurisprudence in Casey, that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.”
Judge Sotomayor should have said: No, the Constitution does not contain an express “right to privacy,” and it certainly does not contain a “right to abortion.” In Griswold v. Connecticut,1 the majority of the Supreme Court purported to find the right to privacy in the “penumbras” and “emanations” of other constitutional protections. In subsequent cases, the Court abandoned this rationale, adopting in its place Judge Harlan’s argument in Griswold that privacy rights may be found in the Due Process Clause of the 14th Amendment. However, this “right” is purely a court-created doctrine.
In Roe v. Wade,2the Court expanded this doctrine to include the “right to abortion,” holding that the decision to have an abortion was part of the right to privacy protected by the Due Process Clause of the 14th Amendment. However, whatever the extent of a privacy right may be, it simply cannot be so broad as to cover a right to abortion. The killing of over one million unborn human beings a year cannot, by definition, involve private acts. Furthermore, while one could argue that our country has a history of protecting individuals’ privacy, our country clearly does not have a longstanding tradition of protecting abortion rights. Therefore, it is disingenuous to argue that the authors of the 14th Amendment intended to include within the amendment a fundamental right to abortion. Instead, the Court unabashedly made the policy decision that unborn children have no rights, under the guise of protecting women’s rights.
On Roe and Casey as “Settled Law”
Sen. Herb Kohl (D-Wis.) asked: “[T]he court’s ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roesettled law?”
Judge Sotomayor said: “The Court’s decision in Planned Parenthood v. Caseyreaffirmed the core holding in Roe. That is the precedent of the Court and settled in terms of the holding of the Court.”
Judge Sotomayor should have said: No. The holding in Roe was substantially modified by the Court in Planned Parenthood v. Casey.3 In Casey, the Court upheld what it called the central holding in Roe, but abandoned Roe’s trimester framework in favor of a new standard of review –- the “undue burden” standard. Under this standard of review, if a law’s purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability, the law is unconstitutional. The holding in Casey was a definitive step away from the Court’s former holding that abortion was a fundamental right, with any regulation thereof subject to strict scrutiny.
In its most recent abortion case, Gonzales v. Carhart,4 the Court upheld the constitutionality of the Federal Partial-Birth Abortion Ban, which lacked the typical “health exception,” both before as well as after viability. In Gonzales, the Court upheld the ban of one abortion procedure and arguably narrowed the unlimited health exception in Doe. Therefore, abortion law is quite confused and is far from settled.
On Roe as Precedent
Sen. Arlen Specter (D-Pa.) asked: “Do you think that Roe v. Wade has added weight on stare decisis to protect a woman’s right to choose? By virtue of Casey v. Planned Parenthood, as Judge Luttig said? . . . How about the fact that the Supreme Court . . . has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade? Would that add weight to the impact of Roe v. Wade to stare decisis to guarantee a woman’s right to choose?”
Judge Sotomayor said: “That is one of the factors that I believe courts have used to consider the issue of whether or not a new direction should be taken into law . . . The history of a particular holding of the Court and how the Court has dealt with it in subsequent cases would be . . . one of the factors . . . a court would likely consider . . . Casey did reaffirm the Court holding of Roe and so my understanding would be that the issues would be addressed in light of Casey, on the stare decisis today.”
Judge Sotomayor should have said: Supreme Court Justices must have a respect for precedent, but also recognize that following precedent is “not an inexorable command.”5 Under the principles of stare decisis, Roe is a prime example of precedent on shaky ground. First, any argument that settled expectations and reliance6 should prohibit the overturning of Roe reflects unawareness of the state of the law; in fact, if Roe were overturned, abortion would still be legal in at least 41 states.7 Second, Roe and its progeny have clearly proven to be unworkable. For over 30 years, state legislatures and federal courts have struggled to understand what regulations of abortion are permissible, and legislatures often resort to copying the language found in laws previously deemed constitutional by the Court.8 Third, the purported justifications of Roe, flimsy as they were, have dramatically eroded with further in-depth scientific information about when life begins and prenatal development, as well as public health data showing the substantial and negative physical and psychological impact of abortion on women.9 In fact, the Supreme Court has substantially modified the doctrine announced in Roe in subsequent cases.10
On the effect of Roe v. Wade on Society
Sen. Lindsey Graham (R-S.C.) asked: “Do you think Roe v. Wade changed American society?
Judge Sotomayor said: “Roe v. Wade looked at the Constitution and decided that the Constitution as applied to a claimed right applied.”
Judge Sotomayor should have said:Yes, Roe v. Wade dramatically changed American society in the following ways, among others: Over 40 million unborn children have died from legal abortion;11 statistics suggest that the number of careless conceptions have increased, because many women treat abortion as a form of birth control;12 studies indicate that there are increased rates of sexually transmitted disease;13 it is difficult to protect minors from statutory rape in states where there are no parental involvement laws, because some clinics encourage underage girls to lie about their ages, or refuse to report suspected rape;14 the role of the father has been devalued, because men have no say in whether their children are or are not born;15 out-of-wedlock births are up — arguably many men do not feel responsible for the children they unexpectedly father because they view the decision of whether or not to have a child as solely a woman’s decision;16 there is an increased use of prenatal testing to discover genetic conditions, followed by pressure for women to abort children with genetic abnormalities;17 there are now “wrongful birth” and “wrongful life” lawsuits;18 it is challenging to regulate abortion clinics, and thus protect women’s health, because abortion proponents challenge the regulations in court;19 there are huge contradictions in the law, where “wanted” unborn children are protected but “unwanted” unborn children are not;20 employers generally feel less obligated to provide flexible work schedules and childcare options for their employees, and some even pressure employees to abort;21countless women are suffering from the medical side effects of abortion — breast cancer, depression, placenta previa, preterm birth, suicide, and more,22and there has been a general devaluing of human life.
On the Effect of Roe v. Wade on State and Federal Laws
Sen. Tom Coburn (R-Okla.) asked: [After giving example of a 38-week-old unborn child with spina bifida,] “Would it be legal in this country to terminate that child’s life?”
Judge Sotomayor said: “I can’t answer that question in the abstract because I would have to look at what the state of the state’s law was on that question . . . I can say that the question of the number of weeks that a woman is pregnant has been — that approach to look at a woman’s (inaudible) was changed by Casey. The question is: Is the state regulation regulating what a woman does an undue burden?”
Judge Sotomayor should have said: Yes. In Doe v. Bolton, the companion case to Roe, the Court created a broad health exception to the regulations purportedly allowed under the Roe framework. The health exception granted abortionists the right to perform abortions for any reason, at any time during the pregnancy.
Sen. Coburn asked: “What was the state of the law, say in 1974, one year after Roe? What was — where did we stand in that issue?”
Judge Sotomayor said: “That women have the right to terminate their pregnancy in some situations, without government regulation; and in others, there would be permissible government regulation . . . That’s generally, because the court did look at other questions in terms of government regulation.”
Judge Sotomayor should have said: In Roe v. Wade,23 the Supreme Court held that the decision to have an abortion was part of the right to privacy protected as a personal liberty under the Due Process Clause of the 14th Amendment of the United States Constitution. While the Court in Roe purported to allow regulation of abortion in some circumstances, Justice Blackmun wrote that the Court’s opinions in Roe and Doe v. Bolton,24 decided on the same day, were “to be read together.” In Doe, the Court defined “health of the mother” so broadly that it eliminated the state’s ability to preserve or enact any meaningful regulations of abortion. The “health of the mother” exception provided that:
[the abortionist’s] medical judgment may be exercised in light of all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician [the abortionist] the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.25
Therefore, under the Roe/Doe framework, an abortionist could offer any reason whatsoever to justify performing an abortion at any time during a woman’s pregnancy.
Sen. Coburn asked: “Did any of the laws of the 50 states regulating abortion survive the decision in Roe?”
Judge Sotomayor said: “I don’t know that I could answer that question, because I don’t—”
Judge Sotomayor should have said: No. The combined effect of Roe v. Wadeand Doe v. Bolton was to render state abortion regulations unenforceable, as discussed above.
Sen. Coburn asked: “Was there any limit to the right to abortion, either in the age of the child in the womb or the reasons for electing that surgery? And if so, what are those limits, according to Roe and Doe?”
Judge Sotomayor said: “Senator, I don’t actually remember the court addressing that, because my studies have been on the undue burden test established in Casey. So my experience in this area, or my knowledge, really has been most particularly concentrated on the Casey standard, which is . . . what Casey did was change the Roe standard.”
Judge Sotomayor should have said: No. Under the Roe/Doe framework, an abortionist could offer any reason imaginable to justify performing an abortion at any time during a woman’s pregnancy.
On Science / Technology and Abortion Law
Sen. Coburn asked: “[S]hould [technology] have any [bearing] whatsoever on the way we look at Roe v. Wade? . . . Should that have any bearing as we look at the law?” [Gave example of a surviving baby born at 21 weeks’ gestation.]
Judge Sotomayor said: “The law has answered a different question. It’s talked about the constitutional rights of women in certain circumstances. And as I indicated, the issue becomes one of, what’s the state regulation in any particular circumstance? . . . I can’t answer that in the abstract, because the question, as it would come before me, wouldn’t be in the way you form it as a citizen. It would come to me as a judge in the context of some action that someone’s taking, whether if it’s the state . . . if it’s a private citizen being controlled by the state challenging that action . . . ”
Judge Sotomayor should have said: Yes. In Roe, the Court held that the state’s interest in protecting the “potentiality of human life” increases through the pregnancy, and purported to allow regulation or proscription of abortion after viability. While the Court in Casey threwout Roe’s trimester framework, it stated that states can regulate more heavily after viability. Therefore, as technology progresses and unborn children are able to survive outside of the womb at earlier stages of development, by the Court’s own reasoning, the state’s interest in protecting the unborn should begin earlier.
Developments in science and technology should also inform the Court on when life begins. Increased knowledge of when vital bodily functions begin, like the heartbeat and brainwaves, should enable the Court to take judicial notice of when life begins. The Court has historically brushed over these questions as beyond the Court’s capacity to answer. However, in the very least, the Court should accept these facts as legislative findings in support of regulations written by legislatures.
On Fundamental Rights
Sen. Jeff Sessions (R-Ala.) asked: “When you ask about abortion, it’s not explicitly referred to in the Constitution, but you say that’s the fundamental right. And we have in the Constitution language that says the right of the people to keep and bear arms shall not be infringed, and there’s a question about that, that it’s not a fundamental right . . . ”
Judge Sotomayor said: “Fundamental is a legal term that I didn’t make up. It was the Supreme Court’s term. And it used it in the context . . . of whether a particular constitutional provision binds the states or not . . . .”
Judge Sotomayor should have said: You are right, Senator. Enumerated rights, like the right to bear arms, are fundamental because of the fact that they are specifically protected under the express words found in the Constitution. In contrast, the right to abortion is not in the text of the Constitution and is not part of the fabric of American history, but is a court-created doctrine.’
- 381 U.S. 479 (1965).
- 410 U.S. 113 (1973).
- 505 U.S. 833 (1992).
- 550 U.S. 124 (2007).
- Payne v. Tennessee, 501 U.S. 808, 828 (1991).
- SeeCasey, 505 U.S. at 855-56 (discussing “reliance” on the availability of abortion).
- Clarke D. Forsythe, The Day After Roe: Abortion would still be legal in at least 41 states, in Defending Life 2009: Proven Strategies for a Pro-Life America83-85 (Denise M. Burke et al. eds., 2009).
- Clarke D. Forsythe, Who Will Fix the Supreme Court’s Mess? A history of United States Supreme Court abortion decisions and how they have shaped abortion law, in Defending Life 2009: Proven Strategies for a Pro-Life America 47 (Denise M. Burke et al. eds., 2009).
- Seegenerally John M. Thorp, Jr., MD, Katherine E. Hartmann, MD & Elizabeth Shadigian, MD, Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence, 58 Obst. & Gyn. Survey 67 (2003 (finding an increased risk for placenta previa, subsequent preterm delivery, and “mood disorders substantial enough to provoke attempts of self-harm” following an induced abortion).
- Casey, 505 U.S. at 869-79.
- See, CDC Morbidity and Mortality Weekly Report: Surveillance Summaries, Vol. 57, No. SS-13, Abortion Surveillance, United States 2005, Table 13, November 28, 2008 availableatwww.cdc.gov/mmwr.
- See,id. (44 percent of abortions are repeat abortions; 18.8 percent are on women who have had two or more abortions).
- SeeJonathan Klick and Thomas Stratmann, “The Effect of Abortion Legalization on Sexual Behavior: Evidence from Sexually Transmitted Diseases,” Journal of Legal Studies, vol. 32 (June 2003).
- SeeElizabeth Fox-Genovese, Abortion: A War on Women, in The Cost of “Choice:” Women Evaluate the Impact of Abortion 56-57 (Erika Bachiochi, Ed. 2004).
- Paige Comstock Cunningham, The Supreme Court and the Creation of the Two-Dimensional Woman, in The Cost of “Choice:” Women Evaluate the Impact of Abortion117-19 (Erika Bachiochi, Ed. 2004).
- Ramesh Ponnuru, The Party of Death70-71 (Regnery Publishing, Inc. 2006) (Citing Goerge Akerlof and Janet Yellen, “An Analysis of Out-Of-Wedlock Births in the United States,” Brookings Policy Brief #5, 1996 (www.brook.edu/comm/policybriefs/pb5.htm). It is based on a paper by Akerlof, Yellen, and Michael Katz with the same title published in the Quarterly Journal of Economics that year.
- supranote 15 at 119-21; Elizabeth R. Schiltz, Living in the Shadow of Monchberg: Prenatal Testing and Genetic Abortion in The Cost of “Choice:” Women Evaluate the Impact of Abortion. 42-49 (Erika Bachiochi, Ed. 2004).
- Kelly E. Rhinehart, “The Debate over Wrongful Birth and Wrongful Life,” 26 Law & Psychol. Rev. 141-42 (2002).
- Denise M. Burke, Abortion Clinic Regulation: Combating the True “Back Alley,” in The Cost of “Choice:” Women Evaluate the Impact of Abortion129-32 (Erika Bachiochi, Ed. 2004).
- supranote 15 at 108-10 (discussing how prior to Roe “it was already settled law that the unborn child could inherit property, have a guardian ad litem appointed to represent his interests, be the subject of a custody dispute, and be considered a child for purposes of terminating the parent-child relationship.” She also discusses how 31 states and the federal government have fetal homicide laws and civil rights of action, and unborn children are covered by S-CHIP).
- supranote 15 at 120-21.
- Seesupra note 9.
- 410 U.S. 113 (1973).
- 410 U.S. 179 (1973).
- Id. at 192.