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PRLDEF Briefs in U.S. Supreme Court Abortion Cases 1980-1992
From 1980 to 1992, Judge Sonia Sotomayor was on the governing board of the Puerto Rican Legal Defense and Education Fund (PRLDEF). During this time, the Fund filed at least six friend-of-the-court (amicus) briefs in five abortion-related cases in the Supreme Court. Every time, the PRLDEF argued that the Supreme Court should impose unlimited abortion rights and eliminate virtually all abortion regulations passed by popularly-elected representatives in the states.
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According to the New York Times on May 28, 2009, "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."
These briefs show that Judge Sotomayor supports an interpretation of abortion rights that goes far beyond Roe v. Wade and would eliminate most or all state and federal abortion regulations, while requiring state and federal funding of abortion.
Williams v. Zbaraz, 448 U.S. 358 (1980)
The US Supreme Court upheld an Illinois statute prohibiting the use of state funds for abortions except where necessary to save the woman’s life. In this case, the PRLDEF:
- Argued that “medically necessary” abortions must be publicly funded
- Argued that the Court’s definition of health in abortion law (from Doe v. Bolton) should be the definition of “medical necessity” . . . “all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. All these factors may relate to health.”
- Argued that limits on public funding “discriminates”
- Urged Supreme Court “to affirm the holding of the District Court that 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.”
Webster v. Reproductive Health Services, 492 U.S. 490 (1989)
The Court upheld several Missouri regulations, including viability testing, and rejected a challenge to a state statutory preamble that declared that the life of a human being begins at conception. In this case, the PRLDEF:
- Argued that abortion is a fundamental right and that strict scrutiny is required:
“This suggested departure from the Court's jurisprudence of fundamental rights is inconsistent with the very notion of a fundamental right. 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.”
This is exactly the intent and language of the Freedom of Choice Act (FOCA) that President Obama has promised Planned Parenthood he will sign, which declares abortion to be fundamental right and would impose “strict scrutiny” and prohibits any “interference” with the right to abortion. - Argued that “Strict Scrutiny Of All Significant Burdens On The Fundamental Right To Abortion Is Required Under The Equal Protection Clause.”
- Argued for “strict scrutiny of all state-created obstacles.”
- Argued “Strict scrutiny is required under the liberty prong of the due process clause because of the preciousness of the fundamental right and its vulnerability to social prejudice and intolerance. The principle of equal protection also justifies strict scrutiny: it requires that fundamental rights be guaranteed equally to all.”
- Argued that “If the children of the poor are homeless and hungry now, when abortion is safe and legal, countless more will suffer if regulations multiply the cost of abortion.”
- Argued against any meaningful regulation:
“In addition to hospitalization, [*40] a number of regulations struck down by this and lower courts under the Roe v. Wade framework, might not be considered sufficiently burdensome as to trigger strict scrutiny analysis. Intrusive and distorted "informed consent" requirements designed to frighten women from obtaining abortions, and onerous record-keeping and public disclosure requirements, which were intended to harass patients and providers, were struck down in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). These and more preclusive parental consent and notices rules, n58 or more intrusive spousal consent or notice requirements, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), might survive an unduly burdensome threshold.”
- Argued against “ultra-sound testing” for every abortion and against requirement that “physicians personally counsel patients.”
- Argued against “viability tests” as “useless and expensive.”
- Quoted Justice Marshall’s dissent in Beal v. Doe:
“An unwanted child may be disruptive and destructive of the life of any woman, but the impact is felt most by those too poor to ameliorate those effects. If funds for an abortion are unavailable, a poor woman may feel that she is forced to obtain an illegal abortion that poses serious threat to her health and even her life . . . If she refuses to take this risk, and undergoes the pain and danger of state-financed pregnancy and childbirth, she may well give up all chances of escaping the cycle of poverty. Absent day-care facilities, she will be forced into full-time childcare for years to come; she will be unable to work so that her family can break out of the welfare system or the lowest income brackets. If she already has children, another infant to feed and clothe may well stretch the budget past the breaking point. All chance to control the direction of her own life will have been lost.” Beal v. Doe, 432 U.S. 438, 458-59 (1977) (Marshall, J., dissenting).
- Asserted again that “The Fund opposes any efforts to . . . in any way restrict the rights recognized in Roe v. Wade.”
Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990)
In rejecting a facial challenge to an Ohio parental notification law, the US Supreme Court upheld an Ohio statute requiring a minor to notify one parent or obtain a judicial waiver. The Court rejected the clinic’s claim that the judicial procedure was burdensome. In this case, the PRLDEF:
- Joined a brief opposing parental notice of abortion in case of minors and specifically declared, “The Fund opposes any efforts to . . . in any way restrict the rights recognized in Roe v. Wade” arguing that “adolescent women's right to choose not . . . infringed by [parental] notification statutes.”
- Insisted on a “fundamental right to abortion.”
- Argued that minors should be “protected against parental involvement that might prevent or obstruct the exercise of their right to choose.”
- Argued:
“that establishment and free exercise clause concerns also militate toward the invalidation of these abortion-specific notice statutes. If Justice Stevens is correct that the belief that life begins at conception is religious, [cit. omit.] then these statutes would seem to both reflect and accomplish state endorsement of religious beliefs. [cit. omit.] The Court would need to examine whether the ostensible secular purposes are "sham," [cit. omit.] in light of the fact that abortion is singled out for notice from other, at least, equally life-shaping reproductive choices based on a purpose to save "lives", and that parents who are religiously opposed to abortion are among its primary beneficiaries. 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.”
- Argued for strict scrutiny standard, in effect, though not in name (argued that state interests must be “narrowly drawn”).
- Focused on the minority of teens who went thru the bypass process completely ignoring parents and parental rights and completely ignoring the effect on teens who might have been deterred from pregnancy. Is that a good way to make public policy? Is that a good way to urge the Court to invalidate legislation passed by majority support?
Rust v. Sullivan, 500 U.S. 173 (1991)
The Supreme Court upheld regulations that recipients of Title X funds could not counsel or refer for abortion using Title X funds. In this case, the PRLDEF:
- Argued that Title X regulations should be invalidated.
- Argued that abortion is “fundamental right”.
Planned Parenthood v. Casey, 505 U.S. 833 (1992)
The Supreme Court upheld parental consent and informed consent regulations from Pennsylvania, but invalided a spousal notice requirement. In this case, the PRLDEF:
- Joined brief opposing 24 hour waiting period and parental consent.
- Opposed definition of medical emergency, establish reporting requirements, and require informed consent, parental consent.
- Urged Court to apply “strict scrutiny” to strike down the regulations.
- Urged that abortion be treated as fundamental right and apply strict scrutiny.
- Compared abortion to the right to free speech and argued that any “burden” was unconstitutional.
- Again contended that, “The Fund opposes any efforts to . . . in any way restrict the rights recognized in Roe v. Wade.”