Abortion

Issue

Justice Souter

Judge Sotomayor

Overall View of “Right” to Abortion

Justice Sotomayor has a long record of leadership and activism with the Puerto Rican Legal Defense and Education Fund (PRLDEF), a group that sees abortion as a fundamental right akin to the right to free speech and the right to vote – rights that, unlike abortion, are actually enumerated in the Constitution. She has never disavowed the positions that the PRLDEF held on her watch.

Before becoming a judge, she served as a member of the governing board of the PRLDEF and was, according to a number of the fund’s lawyers, “an involved and ardent supporter of their various legal efforts” (New York Times, May 28, 2009). In at least six amicus briefs filed in U.S. Supreme Court abortion cases (between 1980 and 1992), PRLDEF argued that abortion is a fundamental right and that any restrictions on abortion are subject to the harshest level of judicial scrutiny. As a result, it argued, such regulations should be ruled unconstitutional – particularly the common-sense regulations that Judge Souter has consistently upheld.

State Policy Declaring that Life Begins at Conception

In fact, in Webster v. Reproductive Health Services (1989), PRDLEF urged the Supreme Court to invalidate a Missouri law in its entirety including a preamble declaring that the state’s policy position that human life begins at conception.

Freedom of Choice

Act (FOCA)

Partial-Birth Abortion

Limitations on Post-Viability Abortion

Informed Consent

In an amicus brief filed in Casey, PRLDEF urged the Court to apply strict scrutiny and strike down Pennsylvania’s informed consent requirements and reflection period. The Fund declared that it “oppose[d] any efforts to . . . in any way restrict the rights recognized in Roe v. Wade;” compared abortion to the specifically-enumerated right to free speech, and argued that any “burden” on the right to abortion was unconstitutional.

Earlier in Webster v. Reproductive Health Services (1989), the Fund had opposed a requirement that physicians personally counsel women seeking an abortion – a requirement that the Supreme Court has found to be medically appropriate and completely reasonable. Moreover, it characterized informed consent requirements as “intrusive,” “distorted,” and “designed to frighten women from obtaining abortions.”

Ultrasound Requirements

Parental Involvement

Justice Souter has twice voted to uphold state parental-involvement laws: Planned Parenthood v. Casey (1992) (Pennsylvania’s parental-consent law) and Lambert v. Wicklund (1997) (Montana’s parental-notice law).

Moreover, in Ayotte v. Planned Parenthood (2006), he voted to overturn a lower court’s injunction invalidating New Hampshire’s parental notice law in its entirety, recognizing that the law would likely be constitutional in (at least) some applications.

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.

Limits on the Use of Taxpayer Funding

In Center for Reproductive Rights v. Bush (2002), Judge Sotomayor, then with the Second Circuit and bound by both U.S. Supreme Court and Second Circuit precedents, upheld the “Mexico City policy” (which prohibits non-governmental organizations from using taxpayer funding to advocate for abortion overseas) against a challenge from an abortion advocacy group. Ultimately, Judge Sotomayor agreed with the government’s argument that it had a rational basis for favoring “the anti-abortion position over the pro-choice position” with public funds.

However, in two separate amicus briefs filed before the U.S. Supreme Court, the PRLDEF argued against limitations on taxpayer funding of abortions. Specifically, Williams v. Zbaraz (1980), the Fund unsuccessfully argued that all “medically necessary” abortions (essentially, code words for abortion-on-demand) must be publicly funded and that failure to do so was “discriminat[ory]” and a violation of equal protection guarantees.

Later, in Rust v. Sullivan (1991), the Fund again unsuccessfully argued that, since abortion is a “fundamental right,” restrictions on Title X funding that prohibited the use of such funding to counsel on or refer for abortions should be invalidated.

Limitations on the Use of State Facilities and Personnel for Abortions

Based on her view that abortion is a fundamental right, Judge Sotomayor would likely vote to strike down any meaningful limits or prohibitions on the use of state facilities (such as public hospitals) or personnel for abortions.

In an amicus brief filed in Webster v. Reproductive Health Services (1989), PRLDEF unsuccessfully urged the Court to apply strict scrutiny and strike down limitations on the use of state resources to provide abortions. The Fund argued that abortion is a “precious right;” that“all state-created obstacles” should be reviewed under strict scrutiny (the highest standard of judicial review reserved for fundamental rights); and that regulations that might increase the cost of abortion or decrease the ease of its availability were unconstitutional.

Regulation of Abortion Providers

(includes regulation of the facilities and personnel that perform abortions)

Moreover, while Justice Souter was on the Court, the Supreme Court twice refused to hear appeals of lower court rulings upholding comprehensive state abortion clinic regulations. Greenville Women’s Clinic v. Bryant (reviewed denied in 2001 and again in 2003).

Abortion Reporting

Based on her view that abortion is a fundamental right, Judge Sotomayor would likely vote to strike down reporting requirements on the incidence of abortion and its complications as “burdensome” on abortion providers.

In an amicus brief filed in Casey (1992), PRLDEF unsuccessfully urged the Court to apply strict scrutiny and strike down Pennsylvania’s record keeping and reporting requirements.

Earlier, in Webster v. Reproductive Health Services (1989), PRLDEF argued that such requirements were solely designed to “harass” abortion patients and providers, completely ignoring the need for meaningful data in assess the safety and efficacy of abortion.

Regulation of Abortifacients

(RU-486)

Funding of Abortion Alternatives

(includes direct subsidies and “Choose Life” license plates)

Legal Protection of the Unborn

Issue

Justice Souter

Judge Sotomayor

Unborn Victims of Violence (also known as “fetal homicide” and “fetal assault”)

Wrongful Birth and Wrongful Death (Civil) Lawsuits

In Smith v. Cote (1986), a case that Justice Souter decided as a member of the New Hampshire Supreme Court, he recognized a cause of action for wrongful birth: essentially, a claim brought by the parents arguing that, but for a physician’s negligence in making prenatal diagnoses, they would have aborted a disabled, deformed, or sick child. Justice Souter and the majority held that, in some circumstances, parents may be injured by the imposition of extraordinary liabilities following the birth of a child.

However, Justice Souter and the majority rejected the wrongful-life claim (brought on behalf of the child and arguing that the child should never have been born), holding that the courts should not become involved in deciding whether a given person’s life is or is not worthwhile, and stating that “[t]he right to life, and the principle that all are equal under the law, are basic to our constitutional order.”

Wrongful Death (Civil) Lawsuits in Death of Unborn Child

Born-Alive Infant Protection

Abandoned Infant Protection (also known as “Baby Moses” laws)

Biotechnologies

Issue

Justice Souter

Judge Sotomayor

Bans on Human Cloning

Bans on Destructive Embryo Research (DER)

Bans on State Funding of DER

Policies Promoting Adult Stem-Cell Research and Other Ethical Alternatives

Regulation of Assisted Reproductive Technologies (such as IVF)

End of Life

Issue

Justice Souter

Judge Sotomayor

Assisted Suicide

In both Washington v. Glucksberg (1997) and Vacco v. Quill (1997), Justice Souter declined to find a federal constitutional right to assisted suicide, upholding state bans (in Washington and New York, respectively) on assisting a suicide.

However, in Gonzales v. Oregon (2006), Justice Souter and the majority ruled that the federal “Controlled Substances Act” did not authorize the United States Attorney General, through interpretive rule, to prohibit the prescription of federal-regulated drugs for use in physician-assisted suicide.

Promotion of Palliative Care

Healthcare Freedom of Conscience

Issue

Justice Souter

Judge Sotomayor

Protection for Individual Healthcare Providers

Protection for Healthcare Institutions

Protection for Insurance Providers and Other Healthcare Payers

First Amendment Rights of Abortion Demonstrators

Issue

Justice Souter

Judge Sotomayor

Constitutionality of “Bubble Zones”

Other Related Issues