Judge Sotomayor repeated that Casey reaffirmed the core holding of Roe, but she was unable and unwilling to say how that holding applies in hypothetical circumstances that Senator Coburn posited. Isn’t it virtually meaningless to mean to say that Casey is “settled law” if all that it establishes is the amorphous and manipulable “undue burden” test? Sotomayor asserted, “We don’t make policy choices.” But doesn’t the “undue burden” test call for a pure policy choice? Justice Ginsburg sure seems to recognize that fact: “I’m not a big fan of these tests. I think the court uses them as a label that accommodates the result it wants to reach.”
If I heard her correctly, Sotomayor also failed to recognize the viability line that Casey drew.
Coburn revisited Sotomayor’s views on foreign law. Sotomayor again gave a thoroughly confusing answer resting on her peculiar and incomprehensible understanding of the word “use.”