Questions That Could Have Been Posed in the Judge Sonia Sotomayor Confirmation Hearing …

John C. Rankin (August 1, 2009)

With respect to the 1973 Roe v. Wade and Doe v. Bolton U.S. Supreme Court decisions:

   1. In reference to the 1965 Griswold v. Connecticut decision, the Court discovered a “penumbra” of the Constitution that included a broad “right to privacy,” sufficient enough to include a woman’s atomistic right to an abortion. Yet, too, the Court also said “The Constitution does not explicitly mention any right of privacy” (410. U.S. 113 at 152).

Judge Sotomayor, can you define what a “penumbra” is, and how prior to 1965, it was used to discover other Constitutional rights? As well, if there is no “right to privacy” explicitly set forth in the Constitution, does the appeal to the shadows of a penumbra have any constitutional substance?

   2. The Roe decision spoke of the “emotional nature of the abortion controversy” that involves people’s philosophy, their “exposure to the raw edges of human experience,” along with their religious training and attitude toward “life and family.”

Then Roe mentioned the issues of “population growth, pollution, poverty and racial overtones (which) tend to complicate.” But Roe never addressed these issues, other than a secondary reference in Doe, and it also said “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection” (410 U.S. 113 at 116).

Judge Sotomayor, you have spoken of the need for the Court to be “empathetic” to human need while applying the law. As Roe noted the “raw edges of human experience,” this seems to be one of those places where law and empathy interface. Can you explain why Roe made specific reference to issues it then did not address, e.g., giving no recommendations as to how legalized abortion would address them lawfully and empathetically, thus improving the human experience? And if empathy and law are to interface, why did the Roe Court declare the need to be “free of emotion” in deciding the law?

Judge Sotomayor, the Roe decision mentioned “racial overtones” as a concern. Since 1973 abortion rates for Black Americans have averaged 23 percent of all abortions, now up to 32 percent, yet Black Americans represent only 12 percent of all Americans. Is this high rate of abortions – double to triple the national average – good for addressing “racial overtones,” or has it only exacerbated racial suffering?

3. The Roe decision distanced itself from the 2,000 year-old Hippocratic oath that prohibited physicians from doing abortions. The Court said that the Hippocratic Oath was a minority opinion in its time, a “Pythagorean manifesto and not the expression of an absolute standard of medical conduct.” As well, the Court noted that the emerging teachings of Christianity were in agreement with this Pythagorean manifesto. “This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath’s apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics” (410 U.S. 113 at 132).

Judge Sotomayor, it seems that the Roe Court regarded a 2,000 year-old medical ethic as a minority sectarian manifesto in Greek philosophy, and that it gained long term reputation essentially through its embrace by early Christianity. Do you agree with this, and if so, does the Roe decision indicate that it has no empathy with Christian conviction and its “religious training?” Further, does it mean that Christianity’s historical reasons for moral decisions no longer apply to the United States, since we are, in a sense, a post-Christian nation? Or if you disagree, we are pleased to hear your thoughts.

   4. The Roe decision spoke of “psychological harm,” the taxation of “physical health,” various sociological ills and even the “stigma” of unwed motherhood, as reasons for legalized abortion (410 U.S. 113 at 153). Yet, in all these concerns, Roe virtually excluded the role of the husband or biological father. The Alan Guttmacher Institute, research arm for Planned Parenthood, has shown consistently over the years that some 82 percent of all abortions are performed on unmarried women. Of the remaining 18 percent, the consistent experience of pregnancy resource centers is that three-quarters of these married women are pregnancy through adultery; and of the remaining one-quarter of the 18 percent, the man is usually in the process of leaving the marriage. In other words, and in knowing that exceptions prove the rule, the dominant psychological and social force driving the abortion ethos is male abandonment of women and their children.

Judge Sotomayor, in light of this reality, do you believe Roe has been empathetic to women in their plight, or has it actually encouraged male chauvinism instead?

5. The Fourteenth Amendment, along with the Thirteenth and Fifteenth, redressed the evil of slavery. It applied the language of personhood to all people, yet Roe argues that it was postnatal in application, not prenatal. Accordingly, Roe says that personhood excludes the unborn in legal terms. Yet too, Roe also said “The Constitution does not define ‘person’ in so many words (410 U.S. 113 at 156). The Fourteenth Amendment was not addressing the subject of the unborn, but it in fact gave personhood to a class of people theretofore denied personhood – Black Americans. The unborn had the legal protection of personhood prior to Roe, but then they lost that protection. Thus, what the Fourteenth Amendment acknowledged for black persons, it denied for the unborn, and indeed, Black Americans are now suffering the scourge of abortion at two to three times the national average.

Judge Sotomayor, what is your understanding of the definition of personhood in the Constitution? As well, and in view of Black Americans and the unborn alike, do you think Roe has been consistent here, logically, legally or empathetically?

6. The Roe decision said that it could not adopt “one theory of life” over and against another (410 U.S. 113 at 162). This relates to terms such as conception, nidation, implantation, viability and birth. “Texas urged that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in position to speculate as to the answer” (410 U.S. 113 at 159). Namely, as to the central factual issue at hand, the Court said it was ignorant.

Judge Sotomayor, do you know of any lack of consensus as to the biological humanity of the unborn since the American Medical Association, in 1859, cited the original experiment that showed the fertilization of a human egg? Also, if the central fact of a case under legal review cannot be determined, is it not the Court’s responsibility not to rule on the case? And didn’t Roe, while nonetheless making a ruling based on stated ignorance, also leave the door open for further information? Namely, does not the whole in vitro fertilization industry, and cognate technologies, base themselves on the scientific facts of fertilization/conception? Specifically: When a haploid spermatozoon fertilizes a haploid ovum, the immediate result is a diploid and one-celled human zygote that equals a whole biological life; and such biological human life is now set for the first time to multiply cells with a genetic code that did not exist beforehand and will never again change. Were not both of us once one-celled human zygotes? It seems that the only difference between us then, and now, is a question of whether or not we were nurtured in our vulnerability through pregnancy and childhood. Would you agree? If not, what is your contrary scientific understanding?

7. Finally, we understand that the 1858 Dred Scott decision rationalized slavery and the dehumanization of Black Americans. It was overturned by the Emancipation Proclamation, and by the Thirteenth, Fourteenth and Fifteenth Amendments. In other words, stare decisis is powerful but not absolute.

Judge Sotomayor, in view of questions of law, science and empathy, and even in its own language, is not Roe subject to review if a compelling case were to be presented?