The Record of Judge Sonia Sotomayor on Critical Legal Rights for Women: Right to Privacy and Abortion

Judicial Record and Other Experience

Judge Sotomayor’s opinions demonstrate respect for fundamental privacy rights.  In a concurrence in one asylum case, for example, Judge Sotomayor recognized the decision to have, or continue, a wanted pregnancy as a “fundamental right.”  In Shi Liang Lin v. Dep’t of Justice,[1] the en banc court held that refugee status does not automatically extend to the spouse or unmarried partner of a woman forced to undergo abortion or sterilization under China ’s coercive family planning policies.  Concurring in only the judgment of the court, Judge Sotomayor noted that the majority’s broad rule ignored the fact that “the state’s interference with this fundamental right” affects both spouses, observing that “[t]he termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child.”[2]  And Judge Sotomayor recognized the fundamental right to privacy again in another case, United States v. Myers.[3] Although the record in that case was inadequate to determine whether the defendant, an unwed father who had to obtain prior written approval from the probation office prior to visiting his child in foster care, had a protected liberty interest in his relationship with his son, Judge Sotomayor’s majority opinion recognized the fundamental right to privacy underlying a parent’s care, custody, and control of his or child. 

In addition, Judge Sotomayor’s majority opinion in Center for Reproductive Law and Policy v. Bush,[4] a case rejecting a challenge to the Global Gag Rule[5] brought under the First Amendment, Due Process and Equal Protection clauses of the Constitution, demonstrates her respect for precedent without revealing her views on the precedents or the underlying Global Gag Rule policy issues.  Because a prior Second Circuit case had “entertained and rejected the same constitutional challenge to the same provision,”[6] she concluded that the panel need not address the issue of standing before determining that the Center for Reproductive Law and Policy (“CRLP”)’s First Amendment rights were not violated.  Further, after finding that CRLP had “competitive advocate standing” to bring an Equal Protection challenge, Judge Sotomayor held that the policy did not violate its Equal Protection rights because “[t]he 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.”[7]

Similarly, Judge Sotomayor’s approach to the three cases involving anti-abortion protesters in which she participated do not demonstrate a bias towards the protesters (despite ruling in favor of anti-abortion protestors in two cases), but rather a concern that the facts be fully explored.  For example, In Amnesty America v. Town of West Hartford,[8] anti-abortion protestors brought a § 1983 claim against the town and its police chief, alleging that town police officers used excessive force when removing the plaintiffs from two anti-abortion protests outside a West Hartford abortion clinic.  The Second Circuit twice heard appeals in this case; both times, Judge Sotomayor authored opinions reversing the district court’s grants of summary judgment to the defendants.  Judge Sotomayor noted that summary judgment on excessive force claims is often inappropriate given the very fact-specific nature of the inquiry.[9]  Further, in United States v. Lynch,[10] a case that would have extremely troubling implications if it were applied broadly to clinic protest cases, Judge Sotomayor joined a dissent to a denial of rehearing en banc that indicated that she viewed the district court ruling as erroneous.  In Lynch, anti-abortion protestors faced criminal contempt charges for their alleged violation of a court order.  Despite clear evidence that the protestors knew of the injunction and still intentionally seated themselves in the clinic driveway, the district court found them not guilty of criminal contempt on the grounds that their sincere religious beliefs precluded a finding of willfulness.  Upon appeal to the Second Circuit, a panel (not including Judge Sotomayor) concluded that appellate jurisdiction did not exist.  When the government’s petition for rehearing en banc was denied, Judge Sotomayor joined Judge Cabranes’s dissent, in which he argued that the panel applied the incorrect standard and that en banc reconsideration was necessary to reexamine the district court’s erroneous definition of “willfulness.”[11]

Two other cases that touch on privacy or reproductive rights are of note.  In N.G. and S.G. v. Connecticut,[12] Judge Sotomayor dissented from a majority opinion holding that strip searches of 13- and 14-year old girls upon admission to a juvenile detention facility were constitutional.  Judge Sotomayor’s dissent discussed the “severely intrusive nature of strip searches,” especially when “the privacy interests of emotionally troubled children are at stake.”[13]  Like Justice Ginsburg at the oral argument of Safford United School District No. 1 v. Redding in March 2009, Judge Sotomayor noted that the girls who had been searched found the process to be embarrassing and humiliating.  Thus, Judge Sotomayor’s dissent in N.G. demonstrated a respect for the troubled girls’ privacy rights, an approach that was endorsed by the Supreme Court’s majority opinion in Safford in reaching its conclusion that the strip search in that case violated the Fourth Amendment.[14]

In addition, Judge Sotomayor joined the opinion in Saks v. Franklin Covey,[15] a case involving a challenge to an employer’s denial of insurance coverage for a reproductive health service.  There, the panel agreed with virtually every other court to examine the issue and held that an employer’s denial of insurance coverage for infertility treatment does not constitute discrimination based on sex under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA), given that infertility treatments apply to both genders.  However, of great significance, the panel did explicitly support the EEOC’s position that the exclusion of prescription contraceptive drugs and devices violates Title VII because only women are disadvantaged.

Regarding her activities before she was on the bench, there is no demonstration of any hostility to Roe v. Wade, and in fact Judge Sotomayor has been willing to associate herself with an organization that has strongly supported Roe v. Wade.  During Judge Sotomayor’s twelve years on the Board of Directors of PRLDEF, the organization signed onto amicus briefs supporting reproductive rights in a number of abortion-related cases before the Supreme Court.[16]  In its briefs in three of those cases, PRLDEF described itself as opposed to “any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”[17]  PRLDEF described its support of women’s right to terminate a pregnancy in these significant Supreme Court cases as related to its efforts to protect the rights of low-income Puerto Rican women.[18]  In response to questions posed by Senator Graham, Judge Sotomayor testified that she never read the briefs, and that as a Board member, her involvement would be limited to whether there was a good-faith basis for whatever arguments PRLDEF was making.[19]  While it is unclear whether Judge Sotomayor actually knew which specific briefs were being, or had been, filed, it is true that during the time that Judge Sotomayor served on the Board of Directors, she knew that PRLDEF filed briefs supporting Roe v. Wade.[20]

Given Judge Sotomayor’s respectful discussions of the right to privacy in her judicial record, including the right to continue a wanted pregnancy, her association with a pro-choice organization, and the absence of any sign of opposition to Roe v. Wade that we were able to discern in her legal record or otherwise, there is no reason to believe that, if confirmed, Judge Sotomayor would undermine Roe.  Moreover, her careful legal approach and demonstrated commitment to precedent provide additional assurance that she would fully uphold Roe. 

Confirmation Hearing

Judge Sotomayor’s discussion of these legal issues during her confirmation hearings support this conclusion.  One major line of questions, asked repeatedly throughout the hearings, was Judge Sotomayor’s views on the constitutional right to privacy, and its application to Roe v. Wade.  Because Judge Sotomayor had not ruled directly on Roe v. Wade as a federal judge, her testimony in this area warrants particular attention. 

On the first day of questioning, Senator Kohl asked directly, and Judge Sotomayor responded clearly, that she believes that the Constitution contains a right to privacy.  She stated that it has been found “in various provisions of the Constitution,” and cited the Fourth Amendment’s prohibition against unreasonable search and seizures, and the Fourteenth Amendment’s due process clause protecting liberty interests.[21]  Later in the hearings, in response to questions asked by Senator Hatch, Judge Sotomayor stated in regard to the right to privacy, “I’ve not viewed what the Court has been doing as creating a right that doesn’t exist in the words of the Constitution.”[22]

She then described Griswold v. Connecticut, the 1965 case in which Supreme Court held that the Constitution’s right to privacy extends to a married couple’s right to use contraception, as a decision of the Court and therefore settled law.[23]  With respect to Roe v. Wade, she gave a similar answer, stating that its core holding applying the right to privacy to a woman’s decision to have an abortion was reaffirmed by the Court’s 1992 decision in Planned Parenthood v. Casey, and thus settled law.[24] 

Senator Hatch asked about Gonzales v. Carhart,[25] the 2007, 5-4 Supreme Court decision upholding a ban on an abortion procedure without an exception to protect women’s health.  Many saw this decision as having overturned, without explicitly saying so, a 2000 decision written by Justice O’Connor when she was on the Court striking down a similar ban because no health protection was provided, a core requirement of Roe.  Judge Sotomayor stated that she viewed this 2007 decision as settled law as well. [26]

Finally, Senator Feinstein, in a very important line of questioning, pursued the issue of women’s health protection further.  Judge Sotomayor stated that “Its prior precedents are still the precedents of the Court, the health and welfare of a woman must be – must be [a] compelling consideration.”[27]  Her strong reaffirmation of the requirement of protecting a woman’s health as still part of the Court’s precedents, and her use of the term “compelling,” which in legal parlance is associated with a fundamental constitutional right, lent further support to her willingness to uphold Roe.  A fundamental right is the strongest type of right that exists in the Constitution.

In sum, while for the most part Judge Sotomayor simply described the Supreme Court’s cases regarding Roe v. Wade, and declined to give her personal views regarding the soundness of these cases or how she would rule in the future, her clear agreement with the right to privacy, and strong description of the Court’s current precedents regarding Roe and women’s health, lend further support to the judgment gleaned from her legal record that she would not undermine Roe v. Wade if confirmed to the Supreme Court.[28]