Kagan Memo on Partial-Birth Abortion Shows She’d be Hostile to Pro-Life Laws
by Steven Ertelt
May 18, 2010
Washington, DC (LifeNews.com) — Further analysis of the controversial memo Supreme Court nominee Elena Kagan wrote for ex-President Bill Clinton on the subject of partial-birth abortion provides new concerns for pro-life advocates. It shows she regarded the ban on the abortion procedure as unconstitutional.
The new analysis from Americans United for Life also indicates Kagan would likely be hostile to any pro-life laws that may come before the Supreme Court.
President Barack Obama appointed his pro-abortion Solicitor General for the open seat vacated by retiring pro-abortion Supreme Court Justice John Paul Stevens.
In 1997, while serving as an associate White House Counsel to President Bill Clinton, Elena Kagan advised Clinton on HR 1122, a bill to ban partial-birth abortions.
Americans United for Life attorneys say the media is misrepresenting the contents of the memo.
"Kagans memo to the President containing her advice was selectively leaked to the press and has been spun to present Kagan as a moderate who would possibly be friendly to pro-life legislation. The memo, however, does not support that conclusion. Rather, Kagans advice to President Clinton indicates that she could be hostile to pro-life legislation. Moreover, it raises questions regarding her respect for the Constitution," the group informed LifeNews.com in a new paper on the memo.
Clinton had vetoed the partial-birth abortion ban and AUL says pro-abortion lawmakers were looking for a way to get out of voting to override his veto.
"Pro-abortion Senators looking for a way to dodge accountability for voting against the ban that had overwhelming support of the American people offered two amendments that would have rendered the bill meaningless. Elena Kagans newly disclosed memo to the President was an evaluation of these two amendments, one offered by Senator Tom Daschle (D-SD) and one offered by Senator Dianne Feinstein (D-CA)," AUL recalls.
In her memo, Kagan does not suggest to Clinton that he support the ban, but suggests he support the compromise Daschle amendment, which National Right to Life also exposed as meaningless.
The Daschle amendment was promoted as going further than a partial birth abortion ban and banning any abortion after viability. However, though the Daschle amendment applied to all late-term abortions, its ban was rendered meaningless by its exceptions, AUL notes.
"No single abortion, partial-birth or otherwise, would have been prohibited by the amendment," AUL says.
Also, the Daschle amendment did not include any objective fetal viability testing requirement.
"Rather, under the Daschle proposal, the abortionist would be the sole judge of the viability of the unborn child and would decide when (and to what child) the bill applies. Such a law would be impossible for an abortionist to violate, as its terms would be left to his subjective judgment," AUL explains.
Second, even if the child were determined to be viable, the Daschle amendment would have allowed abortion if an abortionist determined that continuation of the pregnancy would risk grievous injury to the mother. Based on court rulings, that would open up any abortion to qualify as legal.
Yet, Kagan went as far as saying even the phony amendments were unconstitutional.
Kagans memo states, The Office of Legal Counsel of the Justice Department similarly believes that both the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving womens health.
"Kagans memo does not counter the assertion about the amendments unconstitutionality," AUL responds. "Thus, it would seem that Kagan accepts OLCs assessment."
The kicker for AUL is that it means Kagan would be opposed to affirming the constitutionality of any pro-life law or abortion ban that fails to contain a health exception rendering it meaningless.
The pro-life legal group says: "If Kagan believes that the Daschle amendment, whose exceptions would have allowed any abortion, was unconstitutional, she would certainly be hostile to any true pro-life legislation like the partial-birth abortion ban upheld by the Court in Gonzales v. Carhart, which did not contain the standard health exception.
Still, after stating that the Daschle language would be unconstitutional (without offering any advice to the contrary), she urges the President to support it, her rationale being that his support would offer political cover.
We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto," her memo states.
AUL responds: "Supporting language that one believes is unconstitutional for political gain is unconscionable regardless of the branch of government in which one serves. Elena Kagans responsibility was to uphold the Constitution. Her advice to President Clinton raises serious questions as to how she will view her role as guardian of the Constitution if confirmed as a Justice on the Supreme Court."
Ultimately, the pro-life organization tells LifeNews.com that "Kagans advice to President Clinton serves as a warning for the vast majority of Americans who oppose expansion of abortion."
"Her memo suggests that in her opinion even phony compromise legislation which purports to regulate abortion is unconstitutional. Moreover, her advice to President Clinton that he should support what she believed to be unconstitutional language raises serious questions about her commitment to upholding the Constitution," it concludes.
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