NRL News
Page 28
June 2009
Volume 36
Issue 6

Senate Should Explore Whether Judge Sotomayor Agrees with Views of Dissenters in Gonzales v. Carhart

Editor’s note. The following is the statement issued by National Right to Life on May 26, 2009, the day that pro-abortion President Barack Obama announced his selection of Judge Sonia Sotomayor to fill the seat on the U.S. Supreme Court that is being vacated by the impending retirement of Justice David Souter. The statement is by NRLC Federal Legislative Director Douglas Johnson. For more see editorial, page 2.

What we have seen of Judge Sotomayor’s record so far sheds little light on her views regarding how the Constitution bears on the powers of elected lawmakers to protect the right to life of unborn children.

Members of the Senate should not be pressured to act on this nomination with undue haste. We believe it is critical that senators thoroughly explore whether Judge Sotomayor believes that Supreme Court justices have the right to override the decisions of elected lawmakers on such issues as partial-birth abortion, tax funding of abortion, and parental notification for abortion.

Moreover, in the years ahead debates will intensify on other public policy issues bearing on the right to life—for example, the status of humans who are created by human cloning, or the permissibility of abortion as a method of preventing the birth of a child of an undesired sex. Does Judge Sotomayor believe that Supreme Court justices have the right to declare that the Constitution empowers them to impose their own opinions on all such matters, or is she willing to allow the decisions of elected lawmakers to stand except where they violate a clear and explicit prohibition in the actual Constitution?

There are currently four justices on the U.S. Supreme Court who apparently believe that their strong pro-abortion opinions should override the judgments of elected lawmakers, despite the complete lack of support for their position in the text and history of the Constitution. In its most recent ruling dealing with abortion and the rights of unborn children, Gonzales v. Carhart, on April 18, 2007, a five-justice majority upheld the Partial-Birth Abortion Ban Act. On that occasion, four justices dissented—including Justice David Souter—and argued for a constitutional doctrine that would have invalidated the ban on partial-birth abortions and also, by implication, condemned virtually any other law or government policy intended to discourage abortion.

If the dissenters’ position became the position of the majority of the Supreme Court, various types of laws that have been deemed permissible under Roe v. Wade could be invalidated by judicial decree, perhaps including the Hyde Amendment (restricting government funding of abortion) and parental notification laws.

It is, then, very appropriate for senators to press for Judge Sotomayor’s views on the analysis adopted by the dissenters in Gonzales, an analysis that could bar virtually all limitations on abortion.

Pro-life concerns are reinforced by the knowledge that Judge Sotomayor has been nominated to the Supreme Court by a president who himself criticized the Supreme Court majority for upholding the ban on partial-birth abortion, who previously had opposed a bill to recognize all babies born alive during abortions as fully protected by law, and who endorsed a proposed federal law (the “Freedom of Choice Act”) that has as its major purpose the invalidation of virtually all of the types of abortion regulations that have been upheld by the Supreme Court as consistent with Roe v. Wade.