NRLC opposes confirmation:
Supreme Court Nominee Kagan Not Pro-Life on Abortion, Human
Cloning, Assisted Suicide
Part Three of Three
Editor's note. The June issue
of National Right to Life News is on its way to our over 360,000
readers. On the front page is a story explaining why NRLC is
opposing the confirmation of Elena Kagan to the Supreme Court.
The following is the section that details Kagan's views on
From these and other
sources, what have we learned about Kagan and abortion and her
attitude toward pro-lifers? More than initially meets the eye.
"In the Kagan writings
that have come to light so far, we find troubling evidence that
she holds views contrary to pro-life principles on a range of
key issues, and that she believes it is the proper role of
judges to allow their policy preferences to shape their judicial
rulings," said NRLC Senior Legislative Counsel Susan T. Muskett.
As early as 1980, while
still a student at Princeton, Kagan may also have betrayed a
personal animus towards the pro-life movement in an essay in a
campus newspaper. She lamented Republican gains in the 1980
election–specifically those of Ronald Reagan and of newly
elected Senators Steve Symms (Id.), Jim Abdnor (SD), Dan Quayle
(In.), and Charles Grassley (Iowa)–referring to "these anonymous
but Moral Majority-backed opponents of Senators Church,
McGovern, Bayh and Culver, these avengers of 'innocent life' and
the B-1 Bomber, these beneficiaries of a general turn to the
right and a profound disorganization on the left." (Grassley
remains in the Senate and sits on the Judiciary Committee, which
will begin hearings on the Kagan nomination on June 28.)
In a May 10, 2010, NRLC
press release, Legislative Director Douglas Johnson asked, "Was
Ms. Kagan so dismissive of the belief that unborn children are
members of the human family that she felt it necessary to put
the term 'innocent life' in quote marks, or does she have
another explanation? Would she be able to set aside any animus
she has towards those who fight to protect innocent human life,
when reviewing laws duly enacted for that purpose?"
Eight years later, as a
law clerk to Justice Marshall, Kagan urged the justice to oppose
taking a case on appeal involving a prisoner's right to obtain
access to an abortion, arguing that "this case is likely to
become the vehicle that this Court uses to create some very bad
law on abortion and/or prisoners' rights."
Kagan apparently feared
that the more conservative justices on the court might use the
case to reinforce cases denying a right to government-funded
Carrie Severino with the
Judicial Crisis Network commented, "We can see from her
statements that she viewed a court backing away from abortion
rights or prisoner rights as a step in the wrong direction. ...
For those who weren't already confident in her pro-Roe v. Wade
position, this should be a clear signal."
In 1993, while a law
professor, Kagan wrote critically of a U.S. Supreme Court
decision (Rust v. Sullivan) that upheld regulations prohibiting
the use of certain federal funds to support programs that
counsel, refer, promote, or advocate abortion as a method of
From 1995 to 1999, Kagan
worked on President Clinton's White House staff, advising the
President and his senior staff on various legal and policy
A number of recently
released memoranda show that Kagan played an important role in
shaping White House strategy in opposition to the Partial-Birth
Abortion Ban Act, an NRLC-backed bill that President Clinton
vetoed in 1996 and again in 1997. Both vetoes were overridden in
the House of Representatives but sustained in the Senate.
Douglas Johnson, who led
NRLC's lobbying effort in support of the bill, commented: "In a
June 1996 memorandum, Kagan wrote that she had learned from a
private briefing from representatives of the American College of
Obstetrics and Gynecology (ACOG) that 'in the vast majority of
cases, selection of the partial birth procedure is not necessary
to avert serious adverse consequences to a woman's health,'
which she characterized as "something of a revelation."
But when Kagan heard, in
December 1996, that ACOG was considering making a public
statement along the same lines, she wrote that this 'of course,
would be disaster." It appears that Kagan was dismayed not by
the realities of partial-birth abortion, but by the prospect
that public awareness of those realities would harm the White
House efforts to prevent enactment of the ban."
In May, 1997, Kagan
co-authored another memorandum in which she advised President
Clinton to "endorse the Daschle amendment in order to sustain
your credibility on HR 1122 [the Partial-Birth Abortion Ban Act]
and prevent Congress from overriding your veto."
The Daschle Amendment was
an alternative bill, put forward by pro-abortion senators which
NRLC denounced, in 1997, as a "phony ban." It would have applied
no limitations at all on partial-birth abortions performed in
the fifth and sixth months (before provable "viability"), and
only loophole-ridden limits on abortions in the seventh, eighth,
and ninth months.
In one memo, Kagan
explicitly noted that Daschle's purpose was to "provide cover
for pro-choice Senators (who can be expected to support it),"
and thereby blunt the campaign to enact the Partial-Birth
Abortion Ban Act.
Johnson commented: "The
bottom line is that thousands of additional babies were mostly
delivered alive and then stabbed through the back of the head,
thanks to the deceptive but successful political strategy, to
which Elena Kagan lent all of her considerable talents, that
blocked the Partial-Birth Abortion Ban Act from becoming law
during the Clinton Administration."
The Partial-Birth Abortion
Ban Act ultimately was signed into law by President George W.
Bush in 2003, and was upheld by the U.S. Supreme Court in 2007.
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