No One Knows Sotomayor's Views on Abortion

WASHINGTON – One of the few things conservatives and liberals agree on when it comes to Sonia Sotomayor is that her views on abortion rights are a mystery — and one that must be solved before she can be confirmed as a Supreme Court justice.

Sotomayor's nomination has reopened a politically and emotionally charged debate over abortion that's energized interest groups on the left and right — all working to draw members, money and attention by ensuring the issue features prominently in the judge's confirmation hearings.

Unlike many liberal organizations that came out swiftly and enthusiastically to back Sotomayor, abortion-rights groups are withholding their support until she answers questions on the court's 1973 legalization decision and the principles behind it.

NARAL Pro Choice America has praised her experience and background but has stopped well short of endorsing her. "We look forward to learning more about Judge Sotomayor's views on the right to privacy and the landmark Roe v. Wade decision as the Senate's hearing process moves forward," the group's president, Nancy Keenan, said Tuesday, the day the nomination was announced.

The White House edged carefully around the issue Thursday in an animated question-and-answer session in which reporters pressed to know whether President Barack Obama had ascertained Sotomayor's views before nominating her.

Robert Gibbs, the White House spokesman, said the two discussed Sotomayor's "views on unenumerated rights in the Constitution and the theory of settled law" — both of which have been buzz-phrases for backers of the 1973 decision. In Roe, the court recognized a right to privacy even thought it's not spelled out in the Constitution. Abortion-rights backers consider the decision "settled law" — a kind of super-precedent that has survived long enough without major challenge that it shouldn't be reconsidered.

Obama was "very comfortable with her interpretation of the Constitution being similar to that of his," Gibbs said, declining to provide more specifics.

Abortion is a perennial hot-button in Supreme Court confirmation hearings, drawing pointed questions from Republicans and Democrats alike. It's expected to play a prominent role in the debate over Sotomayor in part because the court has recently been closely divided on abortion questions.

In the latest such ruling — of major concern to abortion rights supporters — the court upheld a nationwide ban on a procedure its opponents call partial-birth abortion, a decision both sides said could pave the way for further restrictions. It was the first abortion ruling in which the court didn't require an exception to preserve a woman's health.

"On these sensitive high-stakes political issues, it's always a very delicate matter in the selection process — no president wants to have a litmus test," said Emma Coleman Jordan, a Georgetown University law professor and former Justice Department official who worked on Sandra Day O'Connor's 1981 nomination to the high court.

"There are ways to determine inclinations, but not through crude, direct questioning. ... The process is not as hamhandedly political as the interest groups try to make it out to be," Jordan said.

Obama's own pro-abortion rights stance has led many to assume that his chosen nominee would feel the same, but there's a history of presidents being unpleasantly surprised by their Supreme Court choices' positions. Retiring Justice David H. Souter, whom Sotomayor would replace if confirmed, was named by former President George H. W. Bush and was widely expected to support overturning Roe, but in 1992 he sided with a majority to uphold abortion rights.

Sotomayor's decisions give little clue about her views on the subject, although she has issued two rulings on unrelated legal issues whose results favored abortion rights opponents. In 2002, she dismissed a challenge by an abortion rights group to the so-called "Mexico City" policy of denying federal funding to organizations that provide or promote abortions. Two years later, she ruled that abortion rights protesters who had unsuccessfully tried to sue Hartford police officers for using excessive force against them should, in fact, get to go to court.

Neither case turned on the key questions of reproductive rights, privacy or Roe itself.