Bench Memos

Sotomayor and PRLDEF’s Extreme Abortion Record

From 1980 to 1992, Sonia Sotomayor was a member of the board of the Puerto Rican Legal Defense and Education Fund.  According to this New York Times article, Sotomayor was particularly involved with PRLDEF’s litigation:

Sotomayor stood out, frequently meeting with the legal staff to review the status of cases, several former members said. And so across her 12 years on the board — she left when she was appointed a federal judge in 1992 — she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.

The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.

Among the legal issues on which PRLDEF “staked out aggressive stances” while Sotomayor “was an involved and ardent supporter of [its] various legal efforts” was abortion.  For example:


1.  In 1988, PRLDEF signed on to an amicus brief in Webster v. Reproductive Health Services that stated its “urgent concern that the [Supreme] Court clearly and unequivocally affirm Roe v. Wade” and that vehemently opposed the “undue burden” standard for abortion regulations that Justice O’Connor had proposed.  PRLDEF’s own statement of its interest in the case declared that it “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.” 

2.  In 1989, PRLDEF signed on to a Supreme Court amicus brief in Ohio v. Akron Center for Reproductive Health that argued that an Ohio law that generally required (subject to a judicial-bypass exception) that one of the parents of a minor be notified before the minor underwent abortion was unconstitutional.  In its own statement of its interest in the case, PRLDEF again declared that it “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”  The two dozen or so other signatories on the brief included an abortion clinic, the National Center for Lesbian Rights, various other feminist groups, and the World Workers Party.  The Supreme Court rejected PRLDEF’s position by a 6 to 3 vote, with the majority including Justice O’Connor and even Justice Stevens (who joined nearly all of the majority opinion and who concurred in the judgment).

3.  Also in 1989, PRLDEF signed on to an amicus brief in the Supreme Court (at the certiorari stage) in Rust v. Sullivan that argued that regulations that limited the ability of recipients of so-called Title X funding to engage in abortion-related activities were unconstitutional.  Among other things, PRLDEF argued that the regulations violated “not only the constitutional right to reproductive choice but also First Amendment principles.”  Among the 50 or so other signatories on the brief was the National Abortion Rights Action League.  After granting certiorari, the Supreme Court rejected PRLDEF’s position by a 5 to 3 vote, with Justice Souter in the majority.  (Justice O’Connor, dissenting on other grounds, did not opine on the issues in PRLDEF’s brief.)




4.  In 1992, PRLDEF signed on to a Supreme Court amicus brief in Planned Parenthood v. Casey that argued that provisions of Pennsylvania law that generally provided for informed consent, parental consent, and spousal notification were unconstitutional and that argued against the Court’s adoption of an “undue burden” standard for abortion regulations.  Once again, PRLDEF’s statement of its interest in the case declared that PRLDEF “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”  By a vote of 7 to 2—with Justices O’Connor and Souter in the majority—the Court rejected PRLDEF’s challenge to the informed-consent and parental-consent provisions.  The joint opinion of Justices O’Connor, Kennedy, and Souter adopted the “undue burden” standard that PRLDEF opposed.  (By a vote of 5 to 4, the Court ruled that the spousal-notification provision was unconstitutional.)    

Overall, the constitutional positions on abortion that PRLDEF advocated in these cases were more extreme—further in the direction of liberal judicial activism—than the positions of Justices O’Connor and Souter and even (in one case) Stevens.   The only justice that agreed with PRLDEF’s positions in every one of these cases was Harry Blackmun (though it’s safe to assume that Justices Brennan and Marshall would have as well, had they been on the Court for all the cases). 


If there is any reason to believe that Sotomayor was not “an involved and ardent supporter” of PRLDEF’s extreme positions on abortion in these cases, I’m not aware of it.  (As I’ve previously noted, Sotomayor, as a sitting judge, has stated that the “need is very great” for “lawsuits involving abortion, illegal immigration and welfare reform.”)

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