Sotomayor On Abortion

I have made my opinion of Sonia Sotomayor clear: her race-based politics and judicial relativism pose serious threats to the legal system.

In the case of abortion, however, the enemies of my enemy remain my enemies. Sotomayor has come under fire for supporting the right to get an abortion, though I regard that as among the few points in her favor. (Radio host Jim Pfaff turned me on the the stories quoted here, though apparently we’re on opposite sides of the issue.)

According to Paul Kengor writing for Catholic Exchange, Senator Jim DeMint said, “When I asked [Sotomayor] if an unborn child has any rights whatsoever, I was surprised that she said she had never thought about it… This is not just a question about abortion, but about respect due to human life at all stages.” (Sotomayor’s opinion here comes to us indirectly, via an obviously partisan senator.)

Part of DeMint’s line (absent the context) made it into Charmaine Yoest’s op-ed for the Washington Times. “Charmaine Yoest is president and chief executive officer of Americans United for Life (AUL)… [which] has been involved in every pro-life case before the Supreme Court since Roe v. Wade.”

As background, last year I co-wrote a paper arguing that it is the anti-abortion stance that is, in fact, anti-life. Abortion bans would threaten the lives of some pregnant women, force some women to bear deformed fetuses against their will, force pregnancies even in cases of rape and incest, and interfere with birth control, scientific research, fertilization medicine, and a woman’s right to control her own life and future. Personhood begins at birth, when a fetus leaves the mother’s body and becomes a biologically separate and independent entity. Only religious faith can endorse the view that a fertilized egg is a person with the same rights as a newborn baby — and religious faith conflicts with the requirements of objective law.

Significantly, Yoest bases her case, not on principles of objective law, but on popularity polls. The writes that “the overwhelming majority of Americans… support at least some restrictions on abortion.” For example, “polls show” that “informed consent and parental notification” laws “are supported by at least 70 percent of the American public.” I have not checked into the polling data — though I suspect that the results depend very much on how the questions are worded (for instance, “informed consent” in this context means forcibly restricting a woman from getting an abortion for a period that politicians deem appropriate). The point is that Constitutional law is not properly determined by opinion polls.

Yoest writes that Sotomayor is guilty of “reading a ‘fundamental right’ to abortion into the Constitution.” This is indeed ironic, given that the Bill of Rights does not explicitly mention abortion, yet it does explicitly name the right to keep and bear arms. As Dave Kopel writes, Sotomayor has also found that “the right to arms is not a fundamental right.” The fact that Sotomayor can find a fundamental right for something not named in the Bill of Rghts, but not for something explicitly named, indeed points to her prejudices.

Yet the entire doctrine of “fundamental” and non-fundamental rights is a judicial fiction completely at odds with the founding philosophy of the nation. Yoest is no less guilty than Sotomayor of ignoring the plain language of the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Yoest refers to “common-sense restrictions on abortion” — without explaining how the restrictions she favors comport with common sense (much less individual rights). Her language mirrors that of anti-gun activists who speak of “common-sense restrictions” on the right to bear arms. Yoest’s clear intent is to undermine individual rights at the whim of mob rule.

Yoest does rightly raises two troubling issues. The matter of parental notification is not obvious. The argument against it is that parents have no right to force their pre-adult teens to take on a lifetime commitment to raising a child. The other troubling issue is “state and federal funding of abortion.” Yoest is right to oppose it, as forcing people to fund abortions violates their rights. However, so long as the state funds medical procedures, to limit funding for one procedure to meet the demands of religious faith violates the separation of church and state. The only solution is to end state funding of medical procedures across the board. If Yoest favors that position, she does not state it in her op-ed.

Ultimately, Yoest falls into the same error as Sotomayor of subverting objective law to subjective experience. Whether the subjective experience is said to arise from the genes or from supernatural communion, the result is the same: the destruction of individual rights.