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 enforcement."
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:
This 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.
The First 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.
That outcome 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.
Given her 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 progressive.
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.
I think it may be a good thing that she hasn't ruled on a lot of cases dealing with reproductive rights. Gives the Right fewer things to throw at her to demonize her.