SOTOMAYOR AND ABORTION.

As Tim noted below, Charlie Savage's piece in the Times this morning suggested more than it delivered on the alleged qualms in the reproductive rights community over Sonia Sotomayor's position on abortion. As he says, surely she should be questioned about her view of the law in this area, but I don't see -- yet -- evidence that the reproductive rights community is worried about her voting to overturn Roe.

I'd just add, though, that her two appellate decisions were not about other bodies of law, rather than about the constitutional right to privacy. Her decisions were purely procedural. In the Center for Reproductive Law and Policy's challenge to the global gag rule, she held that the group's First Amendment claim was controlled by a previous decision that had decided the identical issue. On the group's due process claim, she held that the group did not have standing to challenge the constitutionality of the rule. She did not, as E.J. Dionne wrote this morning, "up[hold] a ban on federal funds going to family planning groups that provided abortions overseas." Instead, she decided that the party challenging the ban did not have the legal standing to do so.

In the other case, anti-abortion protesters sued the town of West Hartford, alleging the police used excessive force against them. Sotomayor reversed the trial court's grant of summary judgment in favor of the town, holding (as is the legal standard) the facts of the case were sufficiently in dispute to require sending the case to a jury. As much as this has been portrayed as Sotomayor ruling "in favor" of the clinic protesters, it's hardly a reflection of her views regarding their conduct or activities.

One case that hasn't received any attention is the Second Circuit's blocking of a New York trial court's order holding a hospital in contempt of court for its refusal to turn over the medical records of women who obtained late-term abortions. The records were sought by the Bush administration as part of its defense of the constitutionality of the Partial Birth Abortion Ban Act in 2004, and was seen as an intimidation tactic against women seeking the procedure. The Bush administration claimed it needed the records to support its claim that the procedure is never medically necessary, and the hospital objected based on its patients' privacy rights.

According to news reports, Sotomayor also questioned the necessity of the records, saying, "I just don't understand what the records will prove in this case.'' The Bush administration then withdrew its request for the records before the court issued a final decision.

--Sarah Posner

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