Contra Kmiec et al., Sotomayor has already signaled that she will be a reliable friend of abortion on the Supreme Court

So many commentators have suggested that Judge Sotomayor’s approach to abortion and its alleged (I’ll say) protection in our Constitution.

Many journalists with the mainstream media have repeated the claim that “[a]s appellate judge, Sotomayor hasn’t confronted core questions about abortion. http://www.miamiherald.com/news/politics/AP/story/1076535.html

For a brief, whimsical moment, I allowed myself to dream that Judge Sotomayor might, in the back of her head, filled with (very selective) compassion, she might have some empathy for the unborn, or at least the right of the people of each state to Republican government, and actually not declare futuer pro-life legislation unconstitutional; that maybe, just maybe, she learned something at Cardinal Spellman High School about the least of Christ’s brethren.

The reliable Doug Kmiec has added fuel to the flames of wild optimism by insisting that her opinions show that she is not a “knee-jerk liberal on abortion issues.”  http://blogs.wsj.com/law/2009/05/27/doug-kmiec-on-a-court-packed-with-catholics/

One’s hopes in this regard might seem bolstered by the conclusions of such commentators as Tom Goldstein, whose apparently close reading of Judge Sotomayor’s opinions led him to conclude that her views on abortion (and the alleged right thereto) are unknown.

Tom Goldstein over at Scotusblog makes the following claim:

“Having comprehensively reviewed her opinions, my view is that the marginally related cases she has decided do not provide any genuine insight on how she would rule on questions related to a constitutional right to abortion, but they do show a level of balance that indicates that her decisionmaking is not driven by pro-choice or pro-life views. ”


Alas, I read just one of those opinions–her opinion in Center for Reproductive Law & Policy v. Bush (2d. Cir. 2002)–and I submit that Mr. Goldstein has overlooked evidence fairly obvious that she is a friend of legalized abortion.

In sum, the opinion makes clear that she is favorable to the view that she openly calls “pro-choice” or for “reproductive rights,” and not favorable to the “anti-abortion” position.

In her opinion she repeatedly characterized the plaintiffs as advocates of “reproductive rights.”

More importantly, she uses the term “pro-choice” to describe the pro-legalized-abortion position, but does not extend the courtesy to those opposed to legalized abortion by calling them “pro-life.”  Here is a key holding from the case: “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.” 

Goldstein himself is aware of the importance of these characterizations.  His own account is the more nonpartisan approach of allowing both sides their respective labels (however questionable those labels are).  For, as noted above, he speaks of “pro-life” and “pro-choice” views.

She, like others in favor of legalized abortion, see the issue as one of “choice,” deny that the other side is motivated by a concern for “life,” but rather are just motivated by some hostitlity to abortion.

Doug Kmiec surely knows the significance of her terminology as well.

Moreover, it’s important to note that her comment on the Supreme Court’s precedent (that the government may favor the “anti-abortion” position) in no way indicates that she agrees with this decision.  She explains that “no intervening case” had called into question this precedent.  Mark my words, she would happily author a Supreme-Court opinion overturning the precedent.

So for those of you who are friends of abortion, you have nothing to fear.  Sotomayor is likewise a friend.