New Supreme Court Documents Show Elena Kagan’s Pro-Abortion Position

National   |   Steven Ertelt   |   Jun 4, 2010   |   9:00AM   |   WASHINGTON, DC

New Supreme Court Documents Show Elena Kagan’s Pro-Abortion Position

by Steven Ertelt Editor
June 4
, 2010

Washington, DC ( — New documents obtained by CBS News from Elena Kagan’s time as a law clerk for pro-abortion Justice Thurgood Marshall reveal more about her position in favor of abortion. They buttress the previous documents and writings pro-life groups have profiled to show Kagan is well outside the judicial mainstream.

CBS News found the documents in Marshall’s papers in the Library of Congress and they are legal memos outlining cases the high court would consider.

They show Kagan backing abortion at a time when the Supreme Court was trying to mitigate the far-reaching effects of Roe v. Wade and its allowance for unlimited abortions at any time during pregnancy.

One of the documents relates to a case of a prisoner who wanted her state to use taxpayer funds to pay for her abortion. Kagan expressed her concern to Marshall that the Supreme Court would use the case to finally place some limits on abortion.

"This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights," she wrote in the 1988 memo, and recommended Marshall vote against reviewing the case.

Kagan also wrote that a court order that mandated taxpayers to pay for the abortions of inmates was “well-intentioned.”

Americans United for Life informed today that the case involved female inmates in the Monmouth County jail who wanted the county to fund their abortions.

"Kagan’s memo reveals her pro-abortion sympathies, her inconsistent statements about the role of a Supreme Court clerk, and her desire to put policy above the law," the pro-life group noted. "Kagan’s belief that the lower court’s decision was ‘well-intentioned’ indicates she thought a ruling expanding abortion rights was a good thing, even if she thought it was wrong on the law."

Kagan is currently the Solicitor general for the Obama administration and she talked about the Marshall papers during her confirmation hearing last year for that position.

"I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views," Kagan said.

She dismissed some of the papers on various political issues as her trying to give Marshall a sense of a case from his perspective, which favored abortion.

AUL told that her comments are inconsistent with the content of the memos.

"This memo, along with other memos that were recently given to the Senate Judiciary Committee, frequently states ‘I think’ or ‘I recommend.’ Kagan is espousing her own views, not the views of Marshall," the group said.

AUL is also concerned about Kagan’s insistence on promoting policy over law and she clearly thought the Court of Appeals had decided the case incorrectly based on the law, and called their reasoning “ludicrous.”

"Despite her conviction that the court below was wrong, however, Kagan still recommended Marshall not review the case because she thought ‘this case is likely to become the vehicle that this Court uses to create some very bad law on abortion,’" AUL says.

The group wonders why Kagan worried the court would create “bad law on abortion” because the Supreme Court, in Beal v. Doe and Maher v. Roe, had already determined taxpayers are not mandated to fund abortions through their tax dollars.

"Was Kagan afraid the Court would reinforce this same precedent, as it had done before in Harris v. McRae," AUL asks. "The only reasonable interpretation is that Kagan feared the Court would expand the principle that taxpayers do not have to fund abortions."

AUL urged senators to ask Kagan, during her confirmation hearing, in-depth questions about her memos to Justice Marshall.

Some of those questions should include: Why did she think mandatory taxpayer funded abortions for prisoners was “well-intentioned”? Why did she tell the Senate that she was a channel for the ideas of Justice Marshall when it is clear she was stating her own position? And, most importantly, why was she intent on placing policy over the law?

Related web sites:
Americans United for Life –
Petition Against Kagan –
Facebook: Stop Kagan


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