I’ve been so swamped with marking, I haven’t even had time to mention the big news: Sonia Sotomayor has been nominated to the US Supreme Court! Of course, it didn’t take long for veiled and not-so-veiled racist commentaries to start. (I think I’m especially impressed by the claim that she is a Latina single mother, despite having no children at all.) Today, however, something more interesting came out: some uncertainty about her views on reproductive rights. She hasn’t explicitly ruled on the Roe V Wade reasoning, and the worries stem from these cases:
1. 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.”
2. 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.
3.In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “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,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”
And in a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.
(2) seems like the right ruling if you care about police using excessive force, which you should. (3) are clearly the right rulings if you care about reproductive rights (even the forced childbearing advocates interviewed for the article realise that this is what pro-choice person would say). Which leaves only (1) to worry about– and it may well be that the higher court ruling made this the only judgment possible. Do any of you know more about (1) which would make this more worrying?
Feminist Philosophers 
Judge Sotomayor has also ruled on important disability cases: in Bartlett v. NY State Board of Law Examiners, she seemed to grasp the complex nature of specific learning difficulties/disabilities, and to understand that the ‘substantial limitation’ required by the Americans with Disabilities Act refers not only to an inability to do something but also to taking more time and effort to do something. The fact that Dr Bartlett had a doctorate in education and a law degree didn’t mean she hadn’t also experienced disability-relevant difficulties in achieving those things. From the New York Times http://www.nytimes.com/2009/05/27/nyregion/27about.html?_r=2 :
‘In ruling for Dr. Bartlett, Judge Sotomayor said that the state
mistakenly relied just on tests of disputed value. “The board (like many others in the public) wants the comfort of a test score to measure this complex process,” she wrote. But, she said, “A learning disability is not measurable in the same way a blood disease can be measured in a serum test.”
‘Dr. Bartlett, she said, was an intelligent, highly articulate person who read “haltingly, and laboriously,” slower than 78 percent of 14-year-olds on a test.
‘For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling,” Judge Sotomayor wrote.’
(Yes, her use of the word ‘crippling’ is interesting: and not, I think, necessarily offensive. I might be inclined to read it as emphasising the reality of Dr. Bartlett’s impairment despite its non-physical nature…)
On (1), I don’t know any of the details, but the court decisions are online. This one is:
Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002)
On a brief reading, it looks to me as if she had little choice on the substantive issues in this case relating to the first amendment – she wasn’t able to distinguish the Planned Parenthood case, previously decided by the 2nd Circuit (but without Sotomayor on the panel) in which the facts were very very similar:
“13. We have been over this ground before. In Planned Parenthood Federation of America, Inc. v. Agency for International Development, 915 F.2d 59 (2d Cir.1990), this Court entertained a constitutional challenge to the same Standard Clause incorporated by the USAID into financial assistance agreements with foreign NGOs. Like the instant case, Planned Parenthood involved a First Amendment challenge, based on freedom of speech and association, brought by domestic NGOs. As in the instant case, the plaintiffs argued before this Court that the Mexico City Policy effectively prevented them from associating and collaborating with foreign NGOs, which in turn prevented them from fulfilling their mission regarding reproductive rights advocacy. Planned Parenthood, 915 F.2d at 62-63.
“14. 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.
….
“15. Planned Parenthood not only controls this case conceptually; it presented the same issue. Planned Parenthood rejected the same First Amendment challenge to the same provision—the Standard Clause that was first instituted by President Reagan in the 1980s and was reinstated by President George W. Bush in 2001 — and no intervening Supreme Court case law alters its precedential value.”
The quotation about the Supreme Court being ‘clear that the government is free to use public funds to favor the anti-abortion position’ comes in her findings on an equal protection argument, and again, the impression is that there wasn’t much room for interpretation.
Of course, in a common law system judges always have to present their findings as if their hands were tied by precedent, otherwise they’d appear to be legislating for themselves. But it does seem relevant that this judgement wasn’t even on the privacy point on which Roe v. Wade turns.
I don’t think you could draw any conclusions at all about her likely views on Roe v. Wade from this judgement. But I’m not an expert, or a lawyer, and I’ve only read it quickly!
Sorry, just to be clear: I was talking about case (1) to which Brandon gave the link (thanks, Brandon!).
Why not look at things through her female/hispanic viewpoint? The Supreme Court won’t work the way it was designed unless it has a perspective from many different angles.
So long as she is able to stand strong and debate her perspective, she has my vote (if I had one)
She sure is getting the Right riled up… that’s a good thing.
I liked the post of the Female science professor about her too… and relevant to this blog as well.
Thanks for all the really helpful comments! And yes, FSP is fantastic on the “emotional” issue.
reaganrepublican: the terms you used to describe Sotomayor are unsubstantiated and offensive; we do not permit that sort of comment here.
The Bazelon centre for mental health law has done an analysis of Sotomayor’s cases relating to disability (the conclusion is mostly positive): http://bazelon.org/issues/disabilityrights/judicialnominees/Sotomayor6–09.htm