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 Elena Kagan to fill the seat on the U.S. Supreme Court that is being vacated by Justice John Paul Stevens. This statement may be attributed to NRLC Legislative Director Douglas Johnson.

On April 21, 2010, President Obama used thinly veiled code language to communicate his clear intent to choose a nominee who would be hostile to legislative attempts to protect unborn humans.  The President stated that he wanted someone “who is going to be interpreting our Constitution in a way that takes into account . . . women’s rights,” and that this was going to be “very important” to him as he viewed our “core Constitution” as protecting the “bodily integrity” of women.

In light of the President’s stated intent, senators have an obligation to probe whether Elena Kagan will tolerate limits on abortion, enacted through normal democratic channels, or will seek to impose extreme pro-abortion views by judicial decree.  Ms. Kagan herself argued forcefully in 1995, in a lengthy book review published in the University of Chicago Law Review, that such inquiries by senators are a legitimate and necessary part of the confirmation process.

In the most recent Supreme Court ruling dealing with abortion and the rights of unborn children, Gonzales v. Carhart, on April 18, 2007, a five-justice majority upheld the federal Partial-Birth Abortion Ban Act.  Yet on that occasion, four justices in dissent — including Justice Stevens — 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 appropriate and necessary for senators to inquire into whether Ms. Kagan would embrace the extreme, results-oriented doctrines enunciated by the dissenting justices in that case.

(Since the Gonzales case was decided, dissenting Justice David Souter has been replaced by Justice Sonia Sotomayor.  Most analysts believe that Sotomayor would be very likely to join the pro-abortion bloc when such issues are revisited in the future.)

There are troubling indications that Ms. Kagan generally favors an activist, results-oriented approach to constitutional law.  For example, in her 1995 law journal article, she wrote, “The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court’s decisions . . . If that is too results oriented … so be it. . .”  She also wrote that “it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

Regarding Ms. Kagan’s specific views on the Court’s past abortion-related rulings, there is little on the public record.  But Ms. Kagan may have betrayed a possible personal animus towards the pro-life movement in a 1980 essay lamenting Republican gains in the 1980 election, in which she referred disparagingly to “victories of these anonymous but Moral Majority-backed [candidates] . . . these avengers of ‘innocent life’ and the B-1 Bomber . . .”   Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term “innocent life” in quote marks, or does she have another explanation?  Would she be able to set aside any animus she has towards those who fight to protect innocent human life, when reviewing laws duly enacted for that purpose?

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