The Abortion Wedge

By Pam Wasserman, Vice President for Education

I tuned in today to watch the Senate Judiciary Committee grill Judge Sonia Sotomayor in her confirmation hearings to become only the third woman to serve on the U.S. Supreme Court. As expected, questions about her views on abortion (from Republican Senators) and a woman's right to privacy (from Democratic Senators) comprised a significant portion of today's proceedings. Also as expected, she chose her words carefully so as not to divulge her personal views on choice issues, leaving lawmakers to wonder how she would rule in a future case challenging Roe v. Wade.

There's not a lot of ground to mine there, since Sotomayor hasn't ruled in many cases related to abortion. In the one case that does stand out, she provided a ruling that would make abortion opponents cheer -- upholding the Mexico City Policy. In her decision for the Second Circuit Court of Appeals, she cited legal precedent (Rust v. Sullivan), when she wrote "The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

Now 16 years past her confirmation hearings, Judge Ruth Ginsberg, the only woman on the current Supreme Court, has the freedom to give her views on reproductive choice. In last Sunday's New York Times interview (The Place of Women on the Court) she was asked what she would want to accomplish as a "future feminist legal agenda." Ginsberg replied that "reproductive choice has to be straightened out" and that "government has no business making that choice for a woman." She went on to explain that current laws discriminate against poor women since Medicaid does not fund abortions and, in a growing number of places around the country, abortions are only accessible to women who can afford to travel long distances. Back when Roe was decided, she had thought that concerns about population growth would encourage public funding for abortions. When the court upheld the Hyde Amendment forbidding the use of Medicaid for abortion in 1980, she "realized that my perception of it had been altogether wrong."

The issue of public funding for abortion is back in the news this week. Yesterday, House Republicans gathered to denounce the inclusion of abortion services in health care reform. Rep. Chris Smith (D-NJ) charged that "Obamacare is the greatest threat ever to the lives and wellness of unborn children and their mothers since Roe v. Wade was rendered in 1973." Even a group of 19 Democratic Congressmen sent a letter to House Speaker Nancy Pelosi last month warning that they wouldn't vote for a health care reform bill that allowed for coverage of abortion services in a government-sponsored plan.

While Roe is the law of the land, millions of American women don't have access to abortion services due to their economic status and/or lack of health insurance. Republican lawmakers know there is little chance of blocking Judge Sotomayor's confirmation to the bench for her alleged liberal views, but hope they might use abortion as a wedge issue to derail health care reform. In the backroom wrangling to find areas of compromise on health reform, I fear that vital reproductive health services will wind up on the cutting room floor.