Sonia Sotomayor May Oppose Supreme Court OKing Partial-Birth Abortion Ban
by Steven Ertelt
LifeNews.com Editor
July 15, 2009
Washington, DC (LifeNews.com) — Sonia Sotomayor may have inadvertently tipped off political observers on abortion during hearings in the Senate Judiciary Committee on Tuesday. Sotomayor appeared to indicate she disagrees with a recent Supreme Court ruling upholding the federal ban on partial-birth abortions.
Sotomayor made the slip during a question and answer period with pro-abortion Sen. Dianne Feinstein, a California Democrat who is a member of the panel.
Feinstein asked Sotomayor about instances where there are “multiple precedents” in case law and whether it is settled law that any legislative limits on abortion contain a health exception.
Feinstein inquired, "So you believe that the health of the woman [exception] still exists?"
"It has been a part of the court’s jurisprudence and a part of its precedents," Sotomayor said. "Those precedents must be given deference in any situation that arises before the court."
"Does a woman have a right to have her health considered?" Feinstein asked in a followup.
"Yes," said Sotomayor, "that continues to be the case.
"In the Carhart case," Sotomayor answered, "the court looked to its precedents, and as I understood that case, it was deciding a different question, which was whether there were other safer means and equally effective means for a woman to exercise her right than the procedure at issue in that case. That was, I don’t believe, a rejection of its prior precedents. Its prior precedents are still the precedents of the court — the health and welfare of a woman must be a compelling consideration."
Feinstein inquired, "So you believe that the health of the woman [exception] still exists?"
Health exceptions have been a disputed notion since 1973 when the Doe v. Bolton companion case to Roe v. Wade opened a huge hole that allowed abortions to be done in a virtually unlimited setting for any reason during the entirety of pregnancy.
The Supreme Court originally cited a lack of a health exception as a reason to strike down a Nebraska ban on partial-birth abortions in 2000, but a change in the makeup of the court saw it reverse itself in the 2007 Gonzales v. Carhart ruling affirming the constitutionality of the national partial-birth abortion ban.
Sotomayor said she did not consider the ruling "a rejection of its prior precedents. The health and welfare of a woman must be a compelling consideration."
But Jonathan H. Adler, writing for National Review Online, notes that just isn’t the case.
"While Carhart all but overturned the court’s 2000 decision invalidating Nebraska’s partial-birth abortion ban, it upheld and applied the reigning standard governing abortion statutes: the ‘undue burden’ test established in Planned Parenthood v. Casey," he explained.
"Indeed, the opinion was written by Justice Kennedy, one of the three judges who wrote the Casey opinion," Adler added.
Sotomayor appeared to contradict herself under questioning from Republican Sen. Orrin Hatch of Utah, who asked Sotomayor if she believes Gonzales v. Carhart was settled law.
"As precedent of the Supreme Court, I consider it settled law subject to the deference, the doctrine of stare decisis," she said.
Supreme Court litigator Tom Goldstein followed the questioning and says Sotomayor may have “shown her hand a touch” that she may oppose that ruling upholding the partial-birth abortion ban.
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