So far, the issue of reproductive rights hasn’t really been much of a factor in the discussion about Obama’s new nominee to the Supreme Court, Elena Kagan. For the most part, this is because the right is occupied with the game of trying to figure out how to call Kagan a lesbian without coming right out and saying it. Because it’s not on the table right now, it’s awfully tempting for pro-choice activists to assume that it may never really become an issue. Perhaps the Obama administration’s decision to find a candidate with as obtuse a record on the issues as possible might be enough to keep the rabid dogs of the anti-choice movement out of this?
Don’t bet on it. When we relax our shoulders and start to believe that anti-choicers won’t be able to find an angle to make something All About Them, that’s when they strike. They did it with the economic stimulus package, lashing out at funding for family planning services in an effort to kill the bill. Pro-choice attempts to make health care reform abortion-neutral failed miserably, and anti-choicers were very close to killing health care reform entirely over abortion. And even if Elena Kagan never uttered the word “abortion” in her life, there’s a good chance that won’t stop them. They’re very rarely bothered by reality, and in the absence of any evidence to support their views, will just make it up.
Of course, things are far more complicated because we really don’t have much evidence about Kagan’s beliefs about choice one way or another. There’s been a memo where she urged then-President Clinton to support a late term abortion ban, but it appears that her motivation was to back a compromise that would prevent a more severe restriction down the road. As it was, her prediction did play out—as soon as an anti-choice President was elected, he signed a serious federal restriction on late abortion—but it’s hard to imagine that a compromise bill passed earlier would have done much to stop the more severe restriction. But the whole incident calls into question Kagan’s commitment to choice. It’s hard to believe that President Obama would nominate someone without being assured of her commitment to abortion rights, but understandably, pro-choicers don’t want to take this on faith.
My sense is that Kagan is a purely political animal, who seems to value what’s popular over what’s right. Take this story, for example. Kagan also urged President Clinton to support sentencing laws that treat the possession of crack cocaine as more serious than the possession of powder cocaine, even though it’s the same drug. The only real difference between the drugs is a class difference, and the result of these sentencing laws is functionally racist. There’s really no question that the sentencing laws are deeply unjust, but Kagan advised Clinton to support them anyway, because it sent the signal that the President is “tough on crime.”
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The hope no doubt among progressives is that Kagan’s tendency to be a middle-of-the-road political animal will fall away when she’s ensconced in the lifetime position of Supreme Court justice. But I’m skeptical. Being a political animal is rarely a conscious choice, but more of a personality trait. Odds are that Kagan’s behavior off the court will be a good predictor of her behavior on the court. And her history inclines me to think she’ll be quite a bit like Sandra Day O’Connor, a moderate who tended to value politically popular opinions over rigorously argued ones. In his book “The Nine,” Jeffrey Toobin explained that O’Connor had an uncanny ability to absorb the most politically centrist sentiment in the country and channel that into her decisions. Kagan is going in on a reputation as a great compromiser, a person who can bring disparate people together by appealing to common ground.
On abortion rights, this tendency can be incredibly dangerous, even when a justice is technically pro-choice. O’Connor, despite being pro-choice, struck an enormous blow to abortion rights when she wrote the majority opinion in Planned Parenthood v. Casey. The decision overturned the standard laid out in Roe v. Wade that made it difficult for state governments to restrict abortion, especially in the first trimester, and replaced it with a standard where states are allowed to regulate abortion as long as there was no “undue burden” on women seeking abortion. From a legal perspective, the standard is hazy and ill thought out, but it was a politically popular one in a nation where most people support legal abortion but want it to be severely restricted. Unfortunately, the decision opened a floodgate of absolutely undue burdens on abortion access, from parental notification and waiting periods to laws that exist mainly to harass providers.
Sadly, we saw this kind of thinking in the memo advising President Clinton to support a compromise bill restricting access to late term abortion. One can be pro-choice and make decisions that are anti-choice under the misguided belief that compromises and common ground will placate anti-choicers. I can’t imagine a scenario where passing a less restrictive abortion ban under a pro-choice President would suffice and thereby stop anti-choicers from trying to pass another more restrictive one as soon as they got an anti-choice President. If anything, gaining victories under a pro-choice administration would probably embolden them to reach for more under an anti-choice administration.
Let’s hope Kagan proves me wrong once she passes confirmation, which she almost surely will. It’s hard to imagine the court isn’t going to revisit the issue of abortion soon, with challenges to it rising up in states like Nebraska. And as hard as it is to imagine that the restrictions on abortion could get any worse, the sad reality is they can.