President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court has provoked concern from abortion rights advocates, who say they have seen no evidence that she supports upholding Roe vs. Wade.
Unlike most finalists for the high court opening, Sotomayor has never ruled on the issue. And in her only abortion-related decision, she did not come down the way activists would have liked.
In 2002, Sotomayor rejected a challenge to President George W. Bush’s so-called Mexico City policy, which required foreign groups receiving U.S. funds to pledge that they would not support or promote abortion.
Sotomayor spoke for a three-judge panel that upheld the policy as constitutional. The government “is free to favor the antiabortion position over the pro-choice position and can do so with public funds,” she said.
“I simply don’t know Judge Sotomayor’s view on Roe vs. Wade. I will be very concerned if the question is not asked and answered during the Senate hearings,” Nancy Northup, president of the Center for Reproductive Rights, said Wednesday. “So far, no one has been able to give us an assurance of her views.”
While that key segment of Obama’s constituency was expressing concern, a leading Senate Republican indicated Wednesday that a filibuster against the nominee was unlikely. “I don’t sense a filibuster in the works,” Sen. Jeff Sessions (R-Ala.) told CNN.
Still, GOP staffers were starting to go through hundreds of Sotomayor’s decisions, looking for issues that might score political points or even derail her nomination.
Northup said she would be surprised if Obama, who as a candidate spoke in favor of abortion rights, selected a justice who did not feel the same way. “But other presidents have been surprised before,” she said, pointing to Justice David H. Souter.
Souter, whom Sotomayor would replace on the court, was nominated in 1990 by President George H.W. Bush. Although Souter had a limited judicial record, Republicans at the time said they were confident that he was a conservative and an opponent of Roe. In 1992, however, Souter upheld a woman’s right to abortion in a 5-4 ruling -- an ideological split over the issue that remains on today’s court.
The White House added to the concerns of abortion rights advocates, saying that the president did not discuss the issue with Sotomayor before her nomination.
“The president doesn’t have a litmus test, and that question was not one that he posed to her,” Press Secretary Robert Gibbs said. Asked whether Obama had not promised to appoint judges who support abortion rights, Gibbs replied: “I’d have to look. I don’t remember exactly what he said on that topic.”
Last year, Obama’s campaign said he would make “preserving a woman’s right to choose under Roe vs. Wade a priority as president.” This year he has sought to bridge the divide on abortion, saying America should try to find ways to reduce unwanted pregnancies and encourage adoptions. At the University of Notre Dame a week and a half ago, Obama called for “fair-minded” debate on abortion and a search for “common ground.” To that end, he has formed a task force, with advocates on both sides of the issue.
Sotomayor, who was raised a Catholic in New York, has listed herself as a member of Childbirth Connection, a group that helps young mothers prepare for caring for a baby.
Two years ago -- in a case of concern to women’s groups -- she joined an appeals court ruling that upheld a school district’s policy requiring teachers to notify a parent if they saw that a girl was pregnant. The court said that the teachers had no legal basis for objecting to the policy.
And since her nomination to the high court Tuesday, several abortion rights advocates have said they remained unsure and uneasy over her views.
Nancy Keenan, president of NARAL Pro-Choice America, said her group would “look forward to learning more about Judge Sotomayor’s views on the right to privacy and the landmark Roe vs. Wade decision as the Senate’s hearing process moves forward.”
“What we know about her we like, but I don’t know the answer on abortion rights,” said Eleanor Smeal, president of the Feminist Majority Foundation.
For their part, some antiabortion advocates say they are convinced that Sotomayor is an “extreme” supporter of abortion, although several admit they do not have specific evidence of her views.
If Obama was seeking to avoid an abortion battle during the confirmation process, Sotomayor would seem a logical choice because of her lack of record on the issue. Another finalist to replace Souter, Judge Diane P. Wood from Chicago, had a strong public record of supporting abortion rights. Wood dissented a decade ago when the U.S. 7th Circuit Court of Appeals upheld Wisconsin’s and Illinois’ bans on what opponents call “partial birth abortion.”
Now, however, it is the abortion rights supporters who want Democrats to raise the issue during the confirmation process.
“Ironically, both sides in the abortion debate can agree on this,” Northup said. “All Americans deserve to know where the next Supreme Court justice stands on Roe vs. Wade.”
Janet Hook and James Oliphant in the Washington bureau contributed to this report.