A Summary of Judge Sotomayor’s Life-Related Rulings & Writings

Abortion-Related Cases

In her seventeen years on the bench, Judge Sotomayor has never had the opportunity to decide directly on whether a law regulating abortion was constitutional.  This is not surprising, given that the states within the federal Second Circuit—New York, Connecticut, and Vermont—have not produced significant pro-life legislation in the last two decades.

The three life-related cases on which she has ruled provide very limited information about her approach to abortion jurisprudence.

• Amnesty America v. Town of West Hartford (361 F.3d 113 (2d Cir. 2004)) – Judge Sotomayor permitted protesters (who happened to be pro-life) to maintain their Fourth Amendment claims of unreasonable seizure against the town of West Hartford for the officers’ use of allegedly excessive force in countering the protesters’ passive resistance to arrest. 
• Center for Reproductive Law and Policy v. Bush (304 F.3d 183 (2d Cir. 2002)) – Judge Sotomayor found that a “reproductive rights” group had standing to challenge the Mexico City Policy—a long-standing policy that provided that foreign non-governmental organizations (NGO) will not receive USAID funding unless the NGO agrees to not engage in activities promoting abortion.  Judge Sotomayor specifically concluded that the group had “competitive advocate standing,” on the grounds that the government’s allocation of a benefit “creates an unequal playing field” for organizations advocating their views in the public arena.  However, Judge Sotomayor agreed with that the government had a rational basis for favoring “the anti-abortion position over the pro-choice position” with public funds.

Applying Supreme Court precedent (Rust v. Sullivan) directly on point as well as a prior Second Circuit decision upholding the Mexico City policy, Judge Sotomayor acknowledged that “The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.”

Bioethics-related Cases

• Saks v. Franklin Covey Co (316 F.3d 337 (2d Cir. 2003)) – Only one case touching on bioethical issues has confronted Judge Sotomayor. In that case, she joined a Second Circuit opinion rejecting a claim that exclusion from coverage of surgical impregnation procedures, including in vitro fertilization, violated Title VII and the “Pregnancy Discrimination” Act.

Abortion-Related Immigration Cases

• The White House has pointed out that Judge Sotomayor has ruled in favor of Chinese women seeking asylum to avoid China’s “forced birth control” – in reality, forced abortion – policies.  These cases, however, give no clear indication of Judge Sotomayor’s views on Roe v. Wade.   They do not involve U.S. abortion law, but rather are based on the 1996 Congressional amendment to federal immigration law making victims (or potential victims) of forced abortion and sterilization eligible for political asylum.

Other Writings

Judge Sotomayor has produced no scholarship about any life or bioethical issues.  Although she has written about the way women’s advocacy has impacted the law, asserting  that she believes and hopes women often will decide cases differently from men, she did not mention Roe v. Wade or other abortion cases.  In her 2002 essay “A Latina Judge’s Voice,” she emphasized the importance of personal feelings and personal experience over expertise, implying that her ethnic background and sex gave her the edge over “white male” judges: “I would hope that a wise Latina woman with the richness of experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Before she was named to the federal bench, Judge Sotomayor was a governing-board member of the Puerto Rican Legal Defense and Education Fund, which issued numerous Supreme Court briefs on her watch, declaring abortion to be a “fundamental right.” The positions taken in these briefs, which Judge Sotomayor has never disavowed, indicates that her position in support of abortion rights is far more extreme and hardened than that of retiring Justice David Souter. See the in-depth summary by AUL’s legal team: “PRLDEF Briefs in U.S. Supreme Court Abortion Cases 1980-1992.”

Supreme Court Review

The Supreme Court has reversed Judge Sotomayor on five or six occasions that it has reviewed her opinions.  A seventh decision in which Judge Sotomayor joined, Ricci v. DeStefano (530 F.3d 87 (2d Cir. 2008)), is before the Supreme Court and indications from oral argument suggest it is likely that Judge Sotomayor again will be reversed.