Kagan Article Shows She May Use Motive Test to Strike Pro-Life Abortion Laws
by Steven Ertelt
June 8, 2010
Washington, DC (LifeNews.com) — The slew of legal memos released by the Clinton presidential library provide enough proof to show Supreme Court nominee Elena Kagan is radically pro-abortion. But a law review article she wrote over a decade ago yields more evidence as to how Kagan would strike down pro-life laws if confirmed.
A 1996 University of Chicago Law Review article Kagan wrote has officials at Americans United for Life concerned that Kagan impose a governmental motive test to invalidate state and federal pro-life laws.
Kagan argued in the piece that First Amendment doctrine actually is focused not on the effects of legislation but the motive of the government for passing the law.
Looking for governmental motive invariably involves looking for bad motives — in other words reasons to declare a law unconstitutional.
"Despite her emphasis on governmental motive, Kagans article actually demonstrates that accepted free speech jurisprudence includes objective criteria (like text and plain language) that go back to the English common law and that more reliably identify an unconstitutional impact on free speech, than would a search for the subjective motives of lawmakers," the pro-life legal group notes.
AUL, in its new paper on Kagan, points out that pro-abortion academics and judges have long sought to impose an anti-abortion motive analysis to invalidate state pro-life laws on abortion. Supreme Court Justice Harry Blackmun applied a motive analysis to strike down abortion laws in the 1986 Thornburgh case.
That case saw Pennsylvania lawmakers approving an informed consent statute designed to help women choose abortion alternatives by giving them information abortion centers don’t normally provide. The law sough to inform women of any "detrimental physical and psychological effects" of abortion and of the "particular medical risks" from abortion.
Blackmun struck down the law, saying, "That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose."
AUL points out that even pro-abortion Justice Sandra Day O’Connor dissented and "rightly skewered Blackmuns illogic, noting that it had long been recognized to be within a state legislatures constitutional authority to regulate the medical profession in this way."
Her taking Blackmun to task made it so the "anti-abortion motive" analysis hasn’t been applied by a Supreme Court majority since.
"The current Supreme Court majority, which upheld the federal partial birth abortion law in Gonzales v. Carhart in 2007, is unlikely to adopt it. However, a slight tilt in the Court could change that," AUL says.
AUL worries Kagan’s disdain for legislative intent would move the court away from its current regard for it.
"If there is no such thing as legislative intent, then a law, upon passage, does not convey the will of elected representatives but is simply a malleable device for judicial reconstruction. The will of the people, expressed through the representative branches of government, is rendered irrelevant upon passage of a law. That has great implications for judicial power when it comes to interpreting the Constitution," AUL writes.
Kagans affinity for the search for the highly subjective legislative motive is disconcerting to AUL officials.
They say members of the Senate, during her hearings, should question Kagan about interpreting laws enacted by the representative branches.
"As such, it is another indication of Elena Kagans deep admiration for judicial activism and for judges who have an exaggerated view of their role in transforming society. Would she bring those views to her service on the Supreme Court and to its abortion jurisprudence?" AUL asks.
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