Knowing Abortion Laws

Does Judge Sonia Sotomayor know the law as well as a future Supreme Court justice ought to know it? If a discussion during her confirmation hearings with
Senator Tom Coburn (who is not a lawyer, but rather an experienced obstetrician) is any indication, it would seem not.

Sen. Coburn: You’ve been asked a lot of questions about abortion. And you’ve said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion?

Judge Sotomayor: I can speak to what the court has said in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman’s constitutional right. That’s my understanding of what the state of the law is.

Sen. Coburn: So let me give you a couple of cases. Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back, on my baby, and I feel like I just can’t handle a child with that. Would it be legal in this country to terminate that child’s life?

Judge Sotomayor: I can’t answer that question in the abstract, because I would have to look at what the state of the state’s law was on that question and what the state said with respect to that issue. I can say that the question of the number of weeks that a woman is pregnant has been—that approach to looking at a woman’s act has—was changed by Casey. The question is, is the state regulation regulating what a woman does an undue burden? And so I can’t answer your hypothetical, because I can’t look at it as an abstract without knowing what state laws exist on this issue or not. . . .

The judge’s answer to the senator’s question was miles wide of the mark, and indicated either that she does not know the truth about the constitutional law of abortion in our country, or that she is willing—for whatever reason—to mischaracterize the matter before a national audience. Senator Coburn had an opening here that cried out for exploitation, but he passed it by for the moment.

The next day, however, he returned to this subject, taking Judge Sotomayor through another brief exchange and pointing out to her that “the truth is, ever since January 22nd, 1973 [the day Roe was decided], you can have an abortion for any reason you want in this country,” and that the stage of one’s pregnancy at the time does not matter at all. The senator was perhaps too kind to the judge, when he might have leaned in and said with quiet intensity, “Why don’t you know this?”