Mexico City on the Supreme Court?

In the discussion of Judge Sonia Sotomayor, President Barack Obama's nominee for the Supreme Court, commentators have pointed out that there is no strong evidence on her stance on abortion, which is generally speaking the litmus test issue for Supreme Court nominees. People who are concerned about the ideological composition of the Court are primarily worried about the possibility that a change in the Court's lineup will result in the overturn of 1973's Roe v. Wade decision, which struck down abortion bans across the country.

Many people on the far left, people who are not fans of the Democratic Party, pointed out last year that Barack Obama would be likely to appoint very different Supreme Court justices than his opponent, Sen. John McCain (R-AZ). McCain pledged to appoint judges in the mold of Chief Justice John Roberts or Associate Justice Samuel A. Alito, President George Bush's two appointees to the Court. It was clear at that time that this president would make at least two nominations to the Court, and the left wanted those justices to be pro-choice as much as the Republican base wanted additional pro-life justices sitting on the Court.

There is an unspoken premise here that the Court will treat abortion the same way the executive branch does. The model here is the Mexico City Policy, which was enunciated by Ronald Reagan in 1984. It has been upheld by Republican presidents and revoked by Democrats since that time. The policy barred federal agencies from giving funding to foreign organizations that advocate or fund abortions. Court-watchers usually assume that justices will treat abortion in the same way politicians do. As Justice Antonin Scalia pointed out in his dissenting opinion to the 1992 abortion case Planned Parenthood v. Casey (and no doubt on countless other occasions), the Supreme Court is not supposed to be motivated by policy preferences. The Court deals with matters of law, and is tasked with making rulings based on what the Constitution does or does not say.

We usually assume not only that presidents will enforce their preferences on abortion through their Supreme Court nominations, but that that is a desirable way for politics to operate. I find that troubling, and I won't endorse that as I make my point about Sotomayor and the effect she'll have on the issue.

The Court directly addressed the precedent of Roe in the aforementioned Casey decision. There have been four changes in the composition of the Court since that time.

• Byron White, who voted to overturn Roe in 1992, was shortly replaced by Ruth Bader Ginsburg, a supporter of abortion rights and presumably a justice who would vote to uphold Roe if it was challenged. Ginsburg voted to strike down laws against partial-birth abortion in 2000's Stenberg v. Carhart.
• Harry Blackmun, the author of the Roe decision, was replaced by Steven Breyer. Breyer is consistently liberal and wrote for the majority in Carhart. This is presumably not a change in the Court's ideological composition.
• The late Chief Justice William Rehnquist was replaced by John G. Roberts in 2005. Rehnquist voted to overturn Roe, and Roberts would likely do the same.
• Sandra Day O'Connor, the author of the Casey decision, retired in 2005 and was replaced by Samuel A. Alito, who was promoted from the Third Circuit Court of Appeals. Alito had been the dissenting vote on Casey at the appellate level, meaning that he voted to uphold the abortion restrictions eventually struck down by the Supreme Court. Alito would most likely vote to strike down Roe.
• Scalia and Clarence Thomas, both of whom voted to overturn Roe, remain on the Court, as do Anthony Kennedy, John Paul Stevens and David Souter, who voted to uphold it.

Granting the assumptions listed above, the net impact of these changes would be that if the Court was to rule on Roe today, it would be a 5-4 decision to uphold, as it was 17 years ago. Clearly, though, there will be at least one change to the Court before a major abortion decision is rendered. Souter is retiring, and Sotomayor has been nominated to replace him. Ginsburg and Stevens are both aged, and Ginsburg is ill. It is exspected that both will retire soon. Kennedy and Scalia are also possible retirees. The only person on the Casey Court who is likely to remain for any length of time is Thomas, who was appointed in 1991 at the age of 43.

Since Obama is considered a strong supporter of abortion rights, and since conservatives decried Sotomayor as an activist even before it was known whom Obama would support, one would expect Sotomayor to be a stauch supporter of the Roe decision, but we have no evidence to support that as yet. There are a handful of cases dealing tangentially with abortion that have come before her on the 2nd Circuit Court, but none have dealt with the fundamental issues involved in Roe.

In a 2002 case, Center for Reproductive Law and Policy vs. Bush, the 2nd Circuit upheld the Mexico City Policy against a challenge from a pro-abortion right group. The group claimed the policy violated their rights to free speech, due process and equal protection. Sotomayor and the 2nd Circuit denied all three claims on various grounds and in keeping with a nearly identical case before the same court some years earlier.

When Sotomayor comes before the Senate for confirmation, no doubt this question will be watched carefully.