WASHINGTON (BP)–Additional details are emerging about Supreme Court nominee Elena Kagan’s position on abortion, but — ironically — the new information won’t make either pro-choicers or pro-lifers completely happy.
The Associated Press reported that in 1997 while working as a domestic policy adviser to President Clinton, Kagan co-wrote a memo urging him to support a Senate bill banning late-term abortions that was promoted as a compromise.
The news may at first seem to be good news for pro-lifers, but it likely is not, for two reasons: 1) the memo made clear that support for the bill was only a political calculation, and 2) pro-life groups in 1997 opposed the bill, arguing it had numerous loopholes — it made an exception for the health of the mother — and would not have banned anything.
The bill was promoted by then-Senate Minority Leader Tom Daschle, D.-S.D., as a compromise to a federal bill that would have banned partial-birth abortion. The Daschle bill was defeated 64-36, while the partial-birth abortion ban passed by an identical 64-36 count before being vetoed by Clinton.
“We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” the memo, from Kagan and her boss, Bruce Reed, said.
Kagan and Reed noted that the Justice Department believed the Daschle bill was unconstitutional, AP reported.
The Daschle bill would have prohibited abortion, by any method, of a “viable fetus unless the physician certifies that continuation of the pregnancy would threaten the mother’s life or risk grievous injury to her physical health.” That language, though, was viewed by many as toothless.
“I will certify that any pregnancy is a threat to a woman’s life and could cause ‘grievous injury to her ‘physical health,'” Warren Hern, a pro-choice gynecologist and author of a textbook on abortion practice, told The Washington Times in 1997.
Pro-lifers also opposed the Daschle proposal because it would have allowed the doctor to define viability and to certify without review the pregnancy is a risk to the mother’s health.
Still, the fact that Kagan OK’d a supposed anti-abortion law that she believed unconstitutional could trouble pro-choice groups. Even before the AP story surfaced, a leading pro-choice organization, NARAL Pro-Choice America, issued a neutral statement saying it looked forward to learning more about Kagan’s views.
President Obama nominated Kagan May 10 to replace the retiring Justice John Paul Stevens. She currently serves as solicitor general. White House spokesman Ben LaBolt told the Associated Press that “judges confront issues differently than staff attorneys for an administration.”
Meanwhile National Right to Life released a 1980 quote from Kagan that it found troubling. Writing about Republican victories from that year, Kagan expressed frustration about the “victories of these anonymous but Moral Majority-backed [candidates] … these avengers of ‘innocent life’ and the B-1 Bomber …”
National Right to Life 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?”
Obama, speaking April 21, made clear he wanted to nominate someone who backed abortion rights.
“I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights,” Obama said. “And that’s going to be something that’s very important to me, because I think part of what our core constitutional values promote is the notion that individuals are protected in their privacy and their bodily integrity, and women are not exempt from that.”
Michael Foust is an assistant editor of Baptist Press. With reporting by Tom Strode, Washington bureau chief for Baptist Press.