New Elena Kagan Memo Urged Clinton to Oppose Ban on Assisted Suicide

Bioethics   |   Steven Ertelt   |   Jun 7, 2010   |   9:00AM   |   WASHINGTON, DC

New Elena Kagan Memo Urged Clinton to Oppose Ban on Assisted Suicide

by Steven Ertelt Editor
June 7
, 2010

Washington, DC ( — When the Clinton presidential library released papers written by Supreme Court nominee Elena Kagan last week, two of them had Kagan taking a pro-abortion position. A third shows Kagan urging former president Bill Clinton to oppose a ban on assisted suicide.

The issue of assisted suicide came up in the Clinton administration following a vote by Oregon voters to make the state the first in the nation to legalize the practice.

The Clinton administration was considering issuing a ruling saying Oregon doctors who prescribe federally controlled drugs to kill patients in assisted suicides were not violating federal law in doing so.

Kagan penned a hand-written note about whether the Justice Department ruling should be accompanied by legislation — such as a ban on assisted suicide. She noted that “Begala likes it,’’ – a reference to Paul Begala, a top adviser to Clinton.

“This is a fairly terrible idea," she added about a national ban on physicians killing patients.

At the time, pro-life lawmakers, including Senator Orrin Hatch of Utah and Representative Henry Hyde of Illinois, had hoped to get the Drug Enforcement Administration to counteract the Oregon law by making it illegal for physicians to use federally-controlled drugs in the assisted suicides.

Since all assisted suicides involve such drugs, that would have the effect of nullifying the Oregon assisted suicide law.

The administration of President George W. Bush tried the same approach but the Supreme Court ruled that it could not be used to trump state law despite the typical superiority of federal law.

Sen Jeff Sessions, a pro-life Alabama Republican who is the top ranking member on the Senate Judiciary Committee, responded to the new document.

"Kagan’s record is exceptionally thin. She has never been a judge and only practiced law for a brief period-spending much of her career as a liberal advocate,’ he said.

An Obama administration official attempted to clarify the document to make it appear Kagan did not oppose, or was not referring to, a federal assisted suicide ban.

“This wasn’t a yes or no question on whether assisted suicide should be banned. Some policymakers argued at the time that a federal law was necessary, and others argued that it should be left to states to outlaw this practice (analysis with which the Justice Department and HHS agreed)," the official said.

The official added, "Only Oregon had passed a law legalizing assisted suicide. The vast majority of crimes are criminalized by state, not federal statute. While Kagan’s initial advice was that a federal law did not make sense at that time or in that context, she advanced a policy process so that others could weigh in and President Clinton could decide.”


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