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The culture wars began and still thrive on the question of abortion. Even so, President Obama has managed to nominate someone to the Supreme Court, Sonia Sotomayor, who has never ruled directly on whether there is a constitutional right to abortion, even though she has been on the federal bench for 17 years.
NPR's Nina Totenberg reports.
NINA TOTENBERG: Finally there's an issue that pro-life and pro-choice activists can agree on. Here's Nancy Northup of the Center for Reproductive Freedom.
Ms. NANCY NORTHUP (President, Center for Reproductive Rights): I think both sides can agree that the American public should know where its nominees in Supreme Court stand on important constitutionally decided decisions like Roe v. Wade.
TOTENBERG: And here is Charmaine Yoest of Americans United for Life.
Dr. CHARMAINE YOEST (President, CEO, Americans United for Life): We've really been focused on asking Senators to really probe this question of her judicial philosophy, as to whether or not she's going to approach a decision like Roe v. Wade as a jurist or as a woman.
TOTENBERG: But if anything, nominees have gotten more reticent, not less, about answering such questions. Here for example, are Judges Ruth Bader Ginsberg and Stephen Breyer at their confirmation hearings in 1993 and 1994, and Judges Samuel Alito and John Roberts at confirmation hearings 11 years later.
Judge RUTH BADER GINSBURG (Supreme Court): The Supreme Court's precedent is that access to abortion is part of the liberty guaranteed by this.
Unidentified Man #1: Now that was just confirmed…
Judge STEPHEN BREYER(Supreme Court): The case of Roe v. Wade has been the law for 21 years or more. And it was recently affirmed by the Supreme Court.
Judge SAMUEL ALITO (Supreme Court): That I would approach the question with an open mind and I would - listen to…
Unidentified Man #2: So you would approach with an open mind notwithstanding your 1985 statement?
Judge ALITO: Absolutely Senator. That was a statement that I made…
Judge JOHN ROBERTS (Chief Justice, Supreme Court): Again I think I should stay away from discussions of particular issues that are likely to come before the court again and in the area of abortion…
TOTENBERG: For people who want to figure out where Sotomayor is on abortion and privacy rights, there isn't much to work with. Sotomayor has only tangential rulings on abortion, decisions that if anything sided with the pro-life position, but are cast in terms of following precedent. In one case, she upheld the Bush administration's ban on aid to international organizations that either promote or provide abortions. The Supreme Court has made clear, she wrote, that the government is free to favor an anti-abortion over a pro-choice position.
And in a case involving China's forced abortion policy, she severely criticized her colleagues on the court who said that only women, and not their husbands, were eligible for asylum. The termination of a wanted pregnancy under a coercive population control program, she wrote, can only be devastating to any couple, akin, no doubt, to the killing of a child. Sotomayor, raised a Roman Catholic, would be the sixth Catholic on the court if confirmed. Four of the Catholics currently on the court have voted consistently against abortion rights.
One, Justice Anthony Kennedy, has been a swing vote on the issue, voting to uphold the core right but approving of most regulations to curb it. Predicting where a justice will be on the issue is dicey. Pro-choice groups lobbied hard against the confirmation of David Souter, nominated to the court by the first President Bush. Although he'd never ruled on an abortion case, they believed he would vote to overturn Roe versus Wade. They were wrong. This time, pro-choice groups have divided between those who quickly endorsed Sotomayor and those who want to know more.
The pro-life groups, on the other hand, were branding Sotomayor a radical even before she was nominated. Again Charmaine Yoest of Americans United for Life.
Ms. YOEST: For us, this is a question of principle over politics, when you really see the court at a crossroads.
TOTENBERG: Actually, it's not, at least for those who oppose abortion. Since Justice Souter was a vote to keep Roe versus Wade in place, replacing him with someone of similar views would change nothing. On the other hand, if Judge Sotomayor turns out to oppose Roe, that would be a game changer.
Nina Totenberg, NPR News, Washington.
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