(CNSNews.com) – The right to an abortion is not different than any other “fundamental right,” according to a legal brief issued by the Puerto Rican Legal Defense and Education Fund (PRLDEF), in a case regarding Missouri state funding restrictions on abortion from 1988 when attorney Sonia Sotomayor was a member of the group’s governing board.
 
Sotomayor, now a U.S. court of appeals judge nominated by President Barack Obama to be an associate justice of the U.S. Supreme Court, served on the board from 1980 to 1992, during which time the organization weighed in on five abortion cases. These included the 1988 case of Webster v. Reproductive Health Services and the 1992 case of Planned Parenthood v. Casey.
 
The Senate Judiciary Committee will hold confirmation hearings on Sotomayor next week.

While Sotomayor did not sign on to the briefs, or personally argue any of the cases, at different times she served as chairwoman of the board and at another point as head of the litigation committee. The organization, now called Latino Justice PRLDEF, is a public interest legal group.
 
In the Webster case, the court determined that states cannot adopt laws placing “undue burdens” on women to prevent abortions but did not find an absolute constitutional right to an abortion. Such a ruling was not enough for the PRLDEF, which argued for no restrictions.
 
“This suggested departure from the court’s jurisprudence of fundamental rights is inconsistent with the very notion of a fundamental right,” the PRLDEF brief said.
 
“The right to abortion is no less vulnerable to hatred, intolerance, prejudice and misunderstanding than any other fundamental right. Only strict scrutiny of all forms of interference can guarantee that necessary burdens on the right to choose abortion are distinguished from superfluous or obstructionist ones,” the brief added.
 
The U.S. Supreme Court upheld in the Webster case the right of the state of Missouri – and by extension other states – to restrict the use of state employees, state facilities and state funds for abortion.
 
In Casey, the PRLDEF filed a brief arguing against restrictions to abortion, because it violates equality under the law for poor women who would likely have a more difficult time dealing with restrictions.
 
“In assessing whether a constitutionally protected right is burdened by state law, the court must consider the practical impact of the law on the ability of the individual to exercise the protected right,” the Casey brief said.
 
“In this case, the Pennsylvania Abortion Control Act would so severely restrict the ability of poor women to obtain abortions that it would render illusory the right to make a private, procreative choice without state interference,” the brief added.
 
Though Sotomayor has been nominated to fill the seat being vacated by retiring pro-abortion Associate Justice David H. Souter, her record on abortion is worse, said Charmaine Yoest, president of Americans United for Life (AUL). That is why the nomination is worth fighting against, Yoest said.
 
“She is worse than Justice Souter in philosophy,” Yoest told CNSNews.com. “If we folded our tents and went home in every battle, we would never stand up for our principles of equal protection under the law.”
 
Souter has upheld that abortion is a constitutionally protected right – but not a fundamental right, according to the AUL. He also upheld Pennsylvania’s informed consent law and 24-hour waiting period. He twice voted to uphold parental consent laws and voted to overturn a lower court ruling to invalidate New Hampshire’s parental consent law. (See AUL Chart Comparing Souter and Sotomayor)
 
The legal briefs that the PRLDEF filed focused on overturning actions by state legislatures, which is in line with a judicial philosophy that promotes policy making from the bench, said Yoest, who will testify next week during the confirmation hearings and has submitted 10 questions that she hopes senators will ask Sotomayor.
 
Democrats have told Yoest that Sotomayor was not directly involved in any of the abortion cases that the PRLDEF intervened in.
 
“Democratic staffers have argued that directly to me, and it’s disingenuous,” Yoest said. “She was chair of the board and head of the litigation committee. This was the legal policy of the organization, and she herself hasn’t clarified it.”
 
In a May 28 story, The New York Times reported: “The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts.”
 
Some conservative commentators have argued that Sotomayor will be confirmed with or without Republican support and that since it is not changing the composition of the court, Republicans should hold their fire for when it counts.
 
But the GOP has reason to oppose the nomination, as the PRLDEF record does “raise serious cause for concern” that she is worse on abortion than Souter, said M. Edward Whelan, president of the Ethics and Public Policy Center.
 
“It’s essential to make the public argument over the proper role of the Supreme Court,” Whelan told CNSNews.com. “In addition, there’s nothing particularly good about the current composition of the Supreme Court, especially on abortion. Sotomayor would be the fifth and decisive vote to perpetuate the court’s power grab on abortion.”
 
In the 1980 case of Williams vs. Zbaraz – regarding public funding for abortion – the fund unsuccessfully argued to the court that failure to fund abortions was “discriminatory.”
 
The brief also argued that “to affirm the holding of the District Court of Illinois singular denial of funding for medically necessary abortions, while funding all other comparable medically necessary care, violates the Equal Protection Clause of the Fourteenth Amendment.”
 
In the 1990 case of Ohio vs. Akron Center for Reproductive Health, a PRLDEF brief argued against parental notification laws insisting that “adolescent women’s right to choose not be infringed by notification statutes.”
 
Further, the brief argued that, “It would also need to consider whether the state, through giving the parents confidential information (far more valuable here than financial assistance), has enhanced these parents’ ability to indoctrinate, control, or punish their minor daughters who choose abortion, and, thereby, has crossed the critical line between respecting the parents’ privacy right to inculcate religion in their children.”
 
In the 1991 case of Rust vs. Sullivan – also regarding public funding – the PRLDEF argued that abortion is a “fundamental right” and thus must be paid for.
 
For their part, pro-abortion advocates have voiced support for Sotomayor’s nomination.
 
“What our nation needs from our Supreme Court justices is a deep understanding of the law, an appreciation of the impact of the court’s decisions on everyday Americans, and a commitment to the protection of our individual liberties,” Cecile Richards, president of Planned Parenthood Federation of America, said in a statement.
 
“Judge Sotomayor will bring this dedication and commitment with her to the bench,” Richards added.
 
Meanwhile, National Organization of Women President Kim Gandy said, “Judge Sotomayor will serve the nation with distinction. She brings a lifelong commitment to equality, justice and opportunity, as well as the respect of her peers, unassailable integrity, and a keen intellect informed by experience.
 
“President Obama said he wanted a justice with ‘towering intellect’ and a ‘common touch’ and he found both in Judge Sotomayor,” Gandy added.