Kagan Urged Clinton to Ban Late Abortions

Jodi Jacobson

In 1997, while serving as a White House adviser to President Bill Clinton, current Solicitor General and Supreme Court nominee Elena Kagan urged the president to support a ban on late-term abortions for political reasons.

In 1997, while serving as a White House adviser to President Bill Clinton, current Solicitor General and Supreme Court nominee Elena Kagan urged the president to support a ban on late-term abortions for what appear to be purely political reasons, according to a report by the Associated Press.  The AP article notes this was “a political compromise that put the administration at odds with abortion rights groups.”

Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton’s presidential library are among the first to surface in which Kagan weighs in on the thorny issue of abortion.

The position favored by Kagan was a “compromise” of abortion rights crafted by Democratic Sen. Tom Daschle in response to efforts by Republicans to pass the so-called partial birth abortion ban. “Clinton supported it,” reports AP, “but the proposal failed and Clinton vetoed a stricter Republican ban.”

In a May 13, 1997, memo from the White House domestic policy office, Kagan and her boss, Bruce Reed, told Clinton that abortion rights groups opposed Daschle’s compromise. But they urged the president to support it, saying he otherwise risked seeing a Republican-led Congress override his veto on the stricter bill.

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Clinton generally supported banning late-term abortions but insisted there be an exception when the mother’s health was at risk.

The memo, reports AP,  is more of a political calculation than a legal brief, but “Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional.”

”We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” they wrote.

The memo noted that another White House adviser, Rahm Emmanuel, also supported the idea. Emmanuel is now Obama’s chief of staff.

Memos reviewed by AP were contained in Reed’s files. “They do not include Kagan’s papers from her time as domestic policy adviser and associate White House counsel. Those records, a several-thousand page collection that could provide the most revealing look at Kagan’s legal work, are expected to be released this summer.”

This appears to be the first insight into Kagan’s own thinking around political expediency and women’s rights. “Partial-birth” abortion is a term created by the anti-choice community and is not a medical term. Moreover, late abortions–those in the third trimester–invariably occur because of fetal anomalies incompatible with life, the death of a fetus in utero, or because of threats to the life and health of the mother.  Banning these procedures takes out of the hands of women and men decisions they feel they need to make for themselves and their families often based on wrenching, life-threatening conditions. It is no surprise to hear now that any of these three advisors to President Clinton supported this “compromise” because it has become almost axiomatic that self-described pro-choice politicians these days rarely stand up on principle for the ultimate right of women to make the decisions they need to make for themselves and their families.

That the role of a Supreme Court judge is different than that of a political advisor to the President and that such positions might vary according to the specific role is a given.  However with so little to go on regarding Kagan’s record, it is difficult to feel comforted by that realization.

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Reproductive rights are a public health issue. That's a fact.

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