June 15, 2010

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 abortion policy.

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 abortions.

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 family planning.

Partial-Birth Abortion

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 issues.

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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