New Documents Show Kagan's Involvement In Abortion Ban Issue As Clinton Aide

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 15 Jun 2010 - 3:00 PDT

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As a White House aide in the Clinton administration, Supreme Court nominee Elena Kagan worked closely on issues related to abortion later in pregnancy, according to new documents released Friday, Politico reports (Gerstein, Politico, 6/11). The newly released documents reflect Kagan's time as an associate White House counsel from 1995 to 1997, while previously released documents are from 1997 to 1999, when she served as a domestic policy adviser (MacGillis, Washington Post, 6/12).

In 1996, Clinton aides prepared four potential responses to Republican-sponsored legislation to ban so-called "partial-birth abortion" procedures, according to the New York Times. At the time, Clinton appeared to favor an option banning the procedure even before viability of the fetus, with exceptions to prevent the death of or serious health consequences for the woman.

Kagan wrote to her boss, Jack Quinn, that the approach was "a problem" for two reasons (Baker/ Stolberg, New York Times, 6/12). "First, it is unconstitutional. ... Second, the (abortion rights) groups will go crazy, exactly because the approach affects this broadscale pre-viability prohibition," she wrote. According to Politico, Kagan asserted that the ban would violate the rights of women seeking an abortion for non-health reasons, but who were informed that more common procedures could pose risks to their health (Politico, 6/11).

A ban on abortions later in pregnancy without an exception for women face who "serious adverse health consequences" would be unconstitutional, Kagan wrote in a 1996 memo. Kagan recommended wording for an exception that she said "fully protects the right of the woman to any medically necessary procedure" (AP/Boston Globe, 6/12).

Kagan objected to a draft of an official statement prepared by administration lawyers expressing Clinton's opposition to a Republican-backed ban on the procedure. The draft "is terrible," she wrote, adding that "it is much broader than the argument we want to be making (that a) simple health exemption is necessary" (Politico, 6/11). In Clinton's veto message for the partial-birth abortion ban, he noted the lack of exception for a woman's health. Kagan helped draft the veto message (AP/Boston Globe, 6/12).

Roughly 80,000 pages of e-mails, 11,000 of which were written by Kagan, are still to be released. Confirmation hearings before the Senate Judiciary Committee are scheduled to begin on June 28 (Hirschfeld Davis, AP/WJLA, 6/12). On Friday, a Washington Post/ABC News poll showed that roughly six out of 10 U.S. residents want the Senate to confirm Kagan. A majority also said they want Kagan to answer questions about her stance on legalized abortions and how she would have ruled on past court cases (AP/Boston Globe, 6/12).

Roll Call Considers Trend of Recent Court Nominees

"[T]he days of the Senate arming the Supreme Court with ideological justices" like former justice Thurgood Marshall, a "liberal leader," or the "unabashedly conservative" current Justice Antonin Scalia "appear to be a thing of the past," several senators and scholars say, Roll Call reports. Given the extent to which Supreme Court nominations have become a "political battleground," presidents "are trending in favor of nominees who, like [Kagan], have spent their lives avoiding controversy," according to Roll Call (Stanton, Roll Call, 6/14).

New York Times Editorial Labels Kagan 'Adept Centrist'

Kagan's Clinton-era documents "show her to be an adept centrist ... who tried to remain thoughtful while shielding [Clinton] from ideological extremes," the New York Times writes. However, Kagan "will have to become much more than a conciliator to fill the shoes of retiring Justice John Paul Stevens, in many ways the conscience of the current court," the Times writes, adding that it "is hard to find anything in the 90,000-odd pages of papers released so far that shows whether Kagan will be an effective restraint on the Roberts Court's aggressive march to the right." The Times adds, "If nothing else, the papers should mute the Republican outcries that Kagan is a dangerous leftist, since they show she is nothing of the kind" (New York Times, 6/11).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families.

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