Kagan’s Late Abortion Ban Strategy Was Rejected by Constitutional Scholar, Key Senators, Advocates

Jodi Jacobson

In regard to Elena Kagan's views on choice, we are left reading tea leaves, or rather old memos from her stint in the Clinton White House. And these don't necessarily provide comfort.

A correction to this article was made at 4:40 pm Thursday, May 13th, 2010.  The earlier version incorrectly attributed comments  in the Congressional Record from 1997 on to Senator Barbara Boxer (D-CA) that were made by Senator Dianne Feinstein (D-CA).

By now it is clear that the general strategy of the White House and Democratic Party leadership on the nomination of Solicitor General Elena Kagan to the Supreme Court is to praise her effusively while saying little if anything at all about her positions. And since she has effectively never stated her opinions on much of anything save a few legal articles (which most scholars point to as being primarily on procedural issues), there is little we can know about her views on critical issues.

All we are told is that she is a an extraordinarily accomplished “pragmatist.”

This would be despite the fact that as Senator, Barack Obama called for a different standard for President Bush’s nominee, Harriet Miers:

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Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we’ll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

He, rightly, wanted to know more about her views.

In fact, one of the most eloquent statements regarding the importance of knowing more about a Supreme Court nominee comes from Kagan herself when, in a 1994 article, she called on the Senate to embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.”

And we, rightly, deserve to know more about Kagan’s views. We deserve to know, for example, her position on Roe v Wade, and whether she sees the issue of a woman’s right to choose as settled law, especially at a point in time when there are so many anti-choice missiles being fired off by states like Nebraska and Oklahoma aimed directly for the Supreme Court.

But we are left reading tea leaves, or rather old memos from her stint in the Clinton White House. And these don’t necessarily provide comfort. Does she, as some of the memos suggest, feel it is ok to whittle away those rights through increasingly narrow circumstances in which women can choose to terminate a pregnancy? 

It turns out that Kagan and her colleague Bruce Reed both pushed Clinton to support an amendment by Senator Tom Daschle (D-DS) to the so-called partial birth abortion ban that at least one esteemed legal scholar–Laurence Tribe–considered unconstitutional, and which a number of Democratic Senators and the advocacy community opposed. They also strongly pressed for the Daschle amendment over one introduced by Senator Dianne Feinstein (D-CA), although Feinstein’s was at least marginally less onerous.

As noted in a 1998 Guttmacher Institute analysis of abortion bans, in Roe v. Wade, “the Supreme Court established a right to an abortion subject to certain limitations, determining that after the point of fetal viability, states may impose restrictions on or even prohibit abortion altogether except in instances necessary to preserve a woman’s life or health.”

The Court, even before Roe, held that the term “health” must be broadly defined to reflect a state of both psychological and physical well-being, and that a determination of what constitutes a valid health reason for an abortion, as well as whether a fetus has attained the point of viability, must be left to an attending physician.

The so-called partial birth abortion act of 1997 was part of a longer-term strategy by anti-choice groups to change the parameters of abortion care, limit women’s rights to abortion even in cases where their health was in danger, or where the fetus was shown to have anomalies incompatible with life.  In short, to legislate away medical decisions by doctors and women faced with extraordinary circumstances, in part by focusing on late abortions, but in reality passing a law that was vague, sweeping, and would affect procedures used at other stages of pregnancy.

President Clinton had already bought into the whole “late-abortion” ban politics. For example, rather than addressing the fallacy of a need for a “late abortion ban” head on, Clinton, according to a White House memo by Reed and Kagan, had:

spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined, health exception–as you said in a letter to the Cardinals, not a health exception that “could be stretched to cover most anything,” but a health exception that “takes effect only where a woman faces real serious adverse health consequences.”

The memo containing this passage was sent to the President the same day–May 13th, 1997–that the Senate was to take up the bill, HR 1122, already passed by the House.

Both the Feinstein and the Daschle amendments prohibit post-viability abortions generally, they wrote.

They thus differ in two crucial ways from HR 1122: (1) they apply to all procedures, including but not limited to the “partial birth” procedure, and (2) they apply only to abortions performed after the fetus has become viable.

Both amendments impose civil, rather than criminal, penalties. Feinstein’s would fine the physician up to $10,000 for a violation. Daschle’s would result in a fine of up to $100,000, or suspension or revocation of the doctor’s medical license (and in the case of a second or subsequent offense, $250,000 or revocation of the license).

Most critically, both amendments contain a health exception, though of different kinds, they continued:

The Feinstein legislation would exempt an abortion if, “in the medical judgment of the attending physician, the abortion is necessary to … avert serious adverse health consequences to the woman.” This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician “certifies that continuation of the pregnancy would … risk grievous injury to [the mother’s] physical health.” “Grievous injury” is then defined as “a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition.”

The Daschle amendment, therefore, would have removed from physicians, women and their families the ability to terminate a pregnancy in which there were serious fetal anomalies leading to death of the fetus, even in utero, potentially forcing a woman to carry a dead or severely malformed fetus to term. It also would have removed mental health exceptions, implying as does the reference to the Cardinals above, that women use abortion for “superficial reasons” that need to be monitored by….men (and, shockingly, to placate the Catholic Church).

Let’s put aside for the moment the real-life implications of such language for women and their doctors faced, in real time, with complications of pregnancy or fetal anomalies, or dead fetuses in utero. Let’s put aside the (intentional) outcome that fines and revocations of licenses for legal, necessary, life-saving procedures have on reducing access to abortion care in this country. Let’s also put aside the ways in which the term “health exception” is manipulated politically so that many threats to health are in fact ignored or that these kinds of false standards, codified in legislation, are used constantly by the far right to badger, question, undermine and even to justify murdering doctors who they perceive to be doing something outside the lines as they, not doctors and women define them.

Let’s just focus on the strategy itself and for whom it was “pragmatic.”  Certainly not for women facing crisis pregnancies, or for the doctors that cared for them.

But Kagan and Reed argued strongly for supporting the Daschle amendment, even though:

The choice groups (somewhat reluctantly) support the Feinstein language, but oppose the Daschle proposal. They argue that the stringency of Daschle’s health exception — including its limitation to cases of physical harm — undermines the comprehensive protections announced in Roe regarding the health of the woman. 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 women’s health. (OLC thinks, however, that a court might be able to interpret the Feinstein amendment so narrowly as to avoid this problem.)

Several Senators also opposed the Daschle amendment.  In the debate on this bill at the time, Feinstein said:

I made the argument that I believe both H.R. 1122 as well as the Daschle substitute are unconstitutional.

With respect to the Daschle amendment, my reading of it indicates that, even if a severely, horribly deformed fetus were capable of only 1 hour of life outside the womb, a woman would be forced to carry that pregnancy to full term and deliver that child, without consideration of what may be severely debilitating consequences to her health.

For me that is not enlightened public policy, and I cannot support it.

Constitutional scholar Laurence Tribe also argued that the Daschle amendment was unconstitutional.  In a letter to Senator Dianne Feinstein at the time, placed in the Congressional Record, he wrote:

Both Roe and Casey unambiguously hold that a state may not prohibit any post-viability abortion that is `necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ The Daschle language would forbid abortion of a viable fetus unless the physician certifies that continuing the pregnancy `would threaten the mother’s life or risk grievous injury to her physical health,’ and goes on to explain that even this narrowed health exception–which impermissibly excludes medically diagnosable risks, however severe, to the woman’s mental health and which requires the physician to certify that the physical injury to the woman would be `grievous’–is inapplicable unless the `severely debilitating disease or impairment’ that the physician believes requires termination of pregnancy is `specifically caused by the pregnancy.’ Thus, although a pregnancy may be terminated without violating Daschle if its continuation would cause what the proposed statute calls `an inability to provide necessary treatment for a life-threatening condition,’ a pregnancy may not be terminated without violating Daschle if its continuation would cause only an inability to provide necessary treatment for a severely debilitating but not life-threatening condition.

The upshot, concluded Tribe, “is that the Daschle language would criminalize at least three categories of post-viability abortions that, under Roe and Casey, may not be prohibited.”

In conclusion, he wrote:

For these reasons, I cannot understand how anyone could doubt the inconsistency of the Daschle language with the requirements of the Constitution as construed in Roe and Casey. I can readily understand the political temptation of some to sign onto a measure that seems less drastic and dangerous from some perspectives than Santorum, and this letter is not intended to address the political pros and cons of various positions. I think it would be a tragedy, however, for Senators, or the White House, to proceed on the basis of demonstrably indefensible readings of the Daschle language or of Roe v. Wade or both.

So rather than passing the original bill and forcing a vote on a veto override, putting the onus on the far right, educating the public and potentially taking the anti-choice bill to court, the Clinton White House, advised by Kagan and Reed, played politics. They pushed for a strategy that according to analyses by leading scholars was in itself unconstitutional.

What does this tell us? Possibly not much. Possibly a great deal. It is critical to know where Kagan, as a judge, would stand on these issues. Does she personally believe in the right to choose whether and when to bear a child? Or is she someone who, like Obama, is so committed to finding the “middle road” no matter what, that she will act more as mediator with far right conservatives on the court rather than principled advocate for women’s rights?  [Full disclosure: I worked hard as a volunteer and as a donor to elect Obama, but have been deeply disappointed by the lack of fierce urgency of anything, much less “now.”]

But the answers aren’t likely to be forthcoming. Asked by Politico what gave her assurances that Kagan would uphold Roe v. Wade, Senator Barbara Boxer (D-CA) replied:

“I have no reason to think anything else except that she would be a very strong supporter of privacy rights because everyone she worked for held that view.”

Did they?  And do they?

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.