The following letter was sent by National Right to Life to members of the U.S. Senate on July 27, 2009.

July 27, 2009

The Honorable Harry Reid
Majority Leader
United States Senate
S-221 The Capitol
Washington, D.C.  20510

The Honorable Mitch McConnell
Republican Leader
S-230 The Capitol
Washington, D.C.  20510

Dear Leader Reid and Leader McConnell:

On behalf of the National Right to Life Committee (NRLC), the federation of right-to-life organizations in all 50 states, we write to express the opposition of our organization to the confirmation of Judge Sonia Sotomayor as an associate justice of the United States Supreme Court.

As a judge, Ms. Sotomayor has encountered little in the way of abortion-related litigation, either at the district court or the court of appeals.  In the single ruling that she authored that bore directly on an abortion-related federal policy, Center for Reproductive Law and Policy v. Bush, the result was unambiguously governed by the precedents of the U.S. Supreme Court and the Second Circuit.  Yet, there are many troubling indications that Ms. Sotomayor believes that it is the proper role of the U.S. Supreme Court to construct and enforce constitutional doctrines on social policy questions, even where the text and history of the Constitution provide no basis for removing an issue from the realm of lawmaking by the duly elected representatives of the people.

Legal abortion on demand was imposed by seven Supreme Court justices in Roe v. Wade.  Roe was an exercise in judicial legislation, aptly branded “an exercise of raw judicial power” by dissenting Justice Byron White.  The ruling lacked any real basis in the text of the Constitution, and imposed a policy that was completely at odds with the intent of the lawmakers who crafted and ratified the Fourteenth Amendment.

The evidence indicates that Ms. Sotomayor approves of the Roe ruling and approves of the type of judicial activism that produced it.  For a period of 12 years (1980-1992), prior to becoming a judge, Ms. Sotomayor served on the governing board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), and for part of that time she was the chair of the PRLDEF Litigation Committee.  During her tenure on the board, the PRLDEF was actively involved in litigation that attempted to persuade the Supreme Court to expand the judge-created “right to abortion,” often beyond what the Court was willing to embrace.  During this period, the fund joined briefs at the U.S. Supreme Court in six abortion-related cases.  These briefs urged the Court to regard abortion as a “fundamental right” (a right on the level of freedom of speech), to apply the strictest standard of scrutiny when reviewing abortion-regulated laws, and thereby to nullify informed consent requirements (including those involving ultrasound), waiting periods, parental notification requirements, restrictions on taxpayer funding of abortion, and even record keeping requirements. The PRLDEF’s own “statement of interest” in three of these cases said that the PRLDEF  “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”

During her recent confirmation hearings, Ms. Sotomayor suggested that she was only aware of this litigation activity in the most general terms, and had no responsibility for or awareness of the substance of the briefs.  Frankly, this testimony was not very believable.  Ms. Sotomayor was a Yale Law School graduate who, according to many accounts, is exceedingly – even excessively – detail oriented on the legal matters in which she is involved.  More believable is what the New York Times reported on May 29, 2009, after interviewing various parties who were directly involved in the PRLDEF litigation activity during this period:  “Ms. Sotomayor stood out, frequently meeting with the legal staff to review the status of cases, several former members said. . . . .The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.”

If confirmed to the U.S. Supreme Court, Ms. Sotomayor will no longer be constrained by the precedents of that Court, including the precedents in which the Court upheld laws requiring notification of a parent before performing an abortion on a minor, requiring a pre-abortion waiting period, barring public funding of abortion, and – by a single vote, in 2007 – banning partial-birth abortion.  Nor, it appears, will she feel greatly constrained by the text and history of the Constitution, in which Roe v. Wade and its progeny find no support.

Because the available evidence strongly suggests that once on the Supreme Court, Sonia Sotomayor will seek to nullify abortion-related laws adopted through the normal legislative processes of our democracy, consistent with the extreme legal theories with which she was associated before being appointed to the federal bench, National Right to Life urges all senators to vote against her confirmation to the Supreme Court.

Respectfully,

David N. O’Steen, Ph. D.
Executive Director

Douglas Johnson

Legislative Director

cc:  Members of the United States Senate

WASHINGTON – The National Right to Life Committee (NRLC), the federation of right to-life organizations in all 50 states, issued the following statement regarding President Obama’s nomination 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.  This statement may be attributed to NRLC Legislative Director Douglas Johnson.

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.