“Is Abortion a Public Health Issue?” Sotomayor Hearings, Day Two

Jodi Jacobson

During a hearing that ranged from questions on judicial temperament and private property to the role of precedent in court decisions and Sotomayor's decision on the use of nunchucks, the most direct, probing, and potentially telling questions came from Senator Lindsay Graham (R-South Carolina). Among them Graham asked: "Is abortion a public health issue?"

During a hearing that ranged from questions on judicial temperment and private property to the role of precedent in court decisions and Sotomayor’s decision on the use of nunchucks, the most direct, probing, and potentially telling questions came from Senator Lindsay Graham (R-South Carolina).

Among the questions Graham posed to Sotomayor: "Is abortion a public health issue?"

Maybe it was my impression, but Sotomayor seemed to pause carefully before answering this question.

My answer: Unequivocally yes. When women lack access to safe abortion services, they die…as they did historically in the United States and as is the case in countries throughout the world today.  Moreover, high rates of maternal mortality are related to high rates of infant and child mortality.  Complications of unsafe abortion are among the leading causes of maternal death in many countries, and in some, like Peru, unsafe abortion is the single most important cause of maternal illness and death.  This is a critical public health issue.

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The question was put to Judge Sotomayor by Senator Graham in a clear effort to pin her down on her positions regarding choice.  Graham–with whom I disagree deeply on many issues but for whom I have considerable respect in no small part because I perceive him as less likely to grandstand for the sake of it and who often speaks very frankly–asked Sotomayor a number of questions about her relationship to the Puerto Rican Legal Defense and Education Fund (PRLDEF) with which the nominee was associated for 12 years, in part as a board member. 

Because of that association, I have to believe that Judge Sotomayor understands the public health dimensions of access to safe abortion services. PRLDEF advocated for medicaid funding of abortion for low-income women, recognizing that the lack of access among women to abortion services resulting from lack of the means to pay represented a public health as well as a human rights issue.  According to AP, for example:

The 1980 Supreme Court case, Williams v. David Zbaraz, challenged an
Illinois law that said state money could not be used to pay for
abortions for poor people, except when necessary to save the life of
the mother.

The Puerto Rican Legal Defense and Education Fund
board, along with three other organizations, filed an amicus brief with
the Supreme Court, arguing that banning taxpayer-funded abortions
discriminated against poor minority women. At the time, Sotomayor
served on the group’s board of directors.

In fact, this is a critical social justice and public health issue for low-income and minority women who do not have access either to preventive reproductive health services or other forms of preventive care.

(PRLDEF also litigated employment discrimination and related cases probed by Republicans.)

But Judge Sotomayor did not address the question, responding instead that any advocate speaks on behalf of the interests of their client, as the client determines them based on their own needs and experiences and their reading of the law.  PRLDEF, she stated, represented its clients–the women involved and their needs. These needs were defined and arose from their own immediate and historical experiences.  Their experiences shaped their position legally and otherwise. 

And this, perhaps, is at least part of the reason why there is such a great degree of anxiety on the part of the far right about the so-called wise Latina quote.  As I wrote in my previous post on the hearings, that quote has been taken out of context by many Senators as well as by the mainstream media, which has largely failed to correct the storline created by the far right message machine.  But it is a fact that in a country where race, ethnicity and income still plays a huge role in access to resources including basic health care, employment and in other areas, where health disparities remain great, and where institutionalized racism still exists, different individuals and different groups within society face different conditions legally, economically and socially and therefore have different experiences than the average white male Senator or male Supreme Court Justice. 

Knowing that Sotomayor can identify with these needs and appears to deeply understand both those facts as well as her need to be an impartial and effective judge appears to drive the far right over the edge.

Moreover, given she was involved with the PRLDEF, it is unimaginable that Sotomayor is not knowledgeable about, for example, the reproductive rights violations–from lack of access to basic care to forced sterilizations–that mar the histories and shape the experiences of women of Puerto Rican descent in the same way as they do women of other minority groups.

Graham also asked whether abortion was a civil rights issue.  And as she did with the public health question, Sotomayor deflected the question.

I know that Graham was looking for a way to pin her down on her views about choice in ways that could be used and abused in the media to her detriment and to the detriment of women everywhere.  She stood firm and kept control of the conversation.  And while it was only a part of a daylong hearing, for me this was one of the most telling exchanges, because while Sotomayor did not affirm the role of access to safe abortion services in public health, nor its human rights implications for women she also refused to deny it.  And women need another (and after her yet another) Supreme Court justice who understands that data, experience, empathy and real life do matter and are part of the weaving of the fabric of our laws in profound ways, even when we are unwilling to admit this.

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Reproductive rights are a public health issue. That's a fact.

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