Do we know what Sotomayor thinks about abortion rights?

Some people assume Obama wouldn't have picked her if she doesn't support abortion rights, but is that really the case? White House spokesman, Robert Gibbs, has said that Obama “did not ask... specifically” about her position. It may be politically useful that her opinion isn't known, and yet that may mean that she'll turn out to be a surprise (as Souter, the man she's replacing was in his time).

None of the cases in Judge Sotomayor’s record dealt directly with the legal theory underlying Roe v. Wade — that the Constitution contains an unwritten right to privacy in reproductive decisions as a matter of so-called substantive due process.

Of course, a Court of Appeals judge is bound to Supreme Court precedent, which includes that theory, but a case applying it might reveal how enthusiastic a judge is about it.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

That says nothing beyond the simple fact that she was bound by precedent and powerless to overrule it.

In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

That is pretty consistent with both the pro-life and the abortion rights position. (In fact, it's a good illustration of why we shouldn't say that those who favor abortion rights are "pro-abortion.") Someone supporting abortion rights might object to valuing the father's interests equally with the mother's, and someone who is pro-life might object to seeing abortion from the perspective of the parents and not the unborn child. Still, she's mostly using pro-choice language: she calls the unborn child a "pregnancy," and she equates it with "a child" (i.e., a born child) when it is "wanted." But then again, this is the language of the law embodied in the Supreme Court decisions that bind her.

[I]n a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.

All you "empathy" opponents — think about that.

Then there's the fact that Sotomayor was raised as a Roman Catholic. (Indeed, she will be the 6th Catholic on the Court.)

... Hispanics include a higher percentage of abortion opponents than many other parts of the Democratic Party’s coalition. Judge Sotomayor’s parents moved from Puerto Rico.

“At the very least, she grew up in a culture that didn’t hold the pro-life position in contempt,” [said teven Waldman, the editor in chief of BeliefNet.com].

David Savage and Peter Nicholas note:

Sotomayor... has listed herself as a member of Childbirth Connection, a group that helps young mothers prepare for caring for a baby.

Two years ago -- in a case of concern to women's groups -- she joined an appeals court ruling that upheld a school district's policy requiring teachers to notify a parent if they saw that a girl was pregnant. The court said that the teachers had no legal basis for objecting to the policy....

If Obama was seeking to avoid an abortion battle during the confirmation process, Sotomayor would seem a logical choice because of her lack of record on the issue. Another finalist to replace Souter, Judge Diane P. Wood from Chicago, had a strong public record of supporting abortion rights. Wood dissented a decade ago when the U.S. 7th Circuit Court of Appeals upheld Wisconsin's and Illinois' bans on what opponents call "partial birth abortion."