On Abortion, Sotomayor is no Souter

Never in Illinois have parents had the legal right to know
if their pregnant child is planning to have an abortion. Now they will, thanks
to a federal appeals court in Chicago that has restored Illinois' long-dormant
parental notification law.

At least for a while, parents will. The question now is, if
the parental notification law were ever to reach the U.S. Supreme Court how
would a justice Sonia Sotomayor rule?

Of course she (or any other nominated justice) properly
would never say how she would rule on any case that could come before them. But
still, we have a clue on

Thumbnail image for DavidSouter.jpg

David Souter

how she would rule, and it wouldn't be good for

From 1980 to 1992, Sotomayor was a governing board member of
the Puerto Rican Legal Defense and Education Fund (PRLDEF), an ardently
pro-choice operation. The group has been involved in several court cases and
could be counted on to take the most rigid position in support of a woman's
absolute right to an abortion.

The Chicago-based Americans United for Life has examined
PRLDEF positions on abortion and found this is the group's view relating to
parental involvement in a child's decision to have an abortion:

Based on her view that abortion is a fundamental right,
Judge Sotomayor would likely vote to strike down both parental-consent and
parental-notice laws, failing to protect both children and parental rights.

In an amicus brief filed in Ohio v. Akron Center for
Reproductive Health (1990), PRLDEF again declared, "The Fund opposes any
efforts to . . . in any way restrict the rights recognized in Roe v. Wade" and
championed on a "fundamental right to abortion. Moreover, it argued that
"adolescent women's right to choose [should] not [be] infringed by [parental]
notification statutes," insisting that minors should be "protected against
parental involvement that might prevent or obstruct the exercise of their right
to choose." The Supreme Court rejected these arguments and upheld the law.

Later, in an amicus filed in Casey (1992), PRLDEF
unsuccessfully urged the Court to ignore its previous ruling in Akron and to
strike down Pennsylvania's parental-consent law.

The point can be made that while this was the organization's
view, it's not necessarily hers, although she appears never to have distanced
herself from it. If she did disagree with the group's extreme views, one can
ask why did she continue her active affiliation with it for so many years.

Of further interest was the comparison Americans United for
Life made with the justice that she would replace, David Souter. Even though
Souter was a Republican appointee, he has tended to side with liberals on the
court, so the Sotomayor appointment would not, according to common wisdom,
change the ideological composition of the court. On the issue of abortion,
though, Sotomayor apparently would take the court further to the left.

Said AUL President & CEO Charmaine Yoest in a Washington
Times op-ed

When President Obama nominated Judge Sonia Sotomayor to the
U.S. Supreme Court, the conventional wisdom was that she would be an apt
replacement for retiring Justice David H. Souter, maintaining the high court's
"balance" -- or, more accurately, its lopsided liberal tilt. But Team Obama
knows something most Americans don't. When it comes to the landmark 1973
decision Roe v. Wade and the abortion cases that have since made it to the
Supreme Court, Sotomayor is no Souter. Rather, her record shows that for the
overwhelming majority of Americans who support at least some restrictions on
abortion, she is worse than Justice Souter -- reading a "fundamental right" to
abortion into the Constitution.

In the case of parental involvement, AUL noted, "In Planned
Parenthood v. Casey (1992), Justice Souter voted to uphold Pennsylvania's
informed consent law and 24-hour reflection period."

In general, AUL noted of Souter: "In his abortion decisions,
including Planned Parenthood v. Casey (1992), Justice Souter has treated
abortion as a constitutionally protected - but not fundamental - right. Thus,
under his view, states, while not able to completely prohibit abortion, may
enact common-sense regulations on abortion." There's no such wiggle room in
Sotomayor's record.

So, while protecting the lives of unborn persons seems not
to be much of an issue in the confirmation hearings, I'd suggest that if
Sotomayor is confirmed and an abortion case comes before her, Americans better
hold onto their hats.

This column also appeared in the Chicago Daily Observer

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