Elena Kagan's Abortion Rights Stances Unclear

One of the many outstanding questions about Supreme Court nominee Elena Kagan concerns her precise views on abortion rights, and how strongly she might advocate for them. The answer, when not entirely opaque, is complex.

So far, very little is known about Kagan’s personal positions or judicial philosophy when it comes to Roe v. Wade and the various abortion restrictions that have come before the court, although she is assumed to be pro-choice in a general sense. But the AP did unearth a memo from Kagan’s time on the Clinton Domestic Policy Council, regarding how to navigate a proposed ban on late term abortions:

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

The significance of this memo, in which Kagan was speaking for the administration’s position, is unclear. It has raised red flags for some, indicating that Kagan would too easily compromise with anti-choice incrementalism, but it can also be seen as a practical political consideration that sought to cut losses, as articulated by liberal blogger Jeff Fecke at Alas A Blog:

It’s not pretty, the machinations of legislating. But Kagan and Reed were right. The Daschle compromise fell apart, Clinton ultimately vetoed the ban on so-called “partial birth” abortion, and the Democrats in Congress were able to sustain the veto. The issue died until George W. Bush finally got a Republican Congress in 2003, at which point Congress passed a bill banning D&X procedures that was ultimately more conservative than Kagan’s proposed compromise.

Moreover, the memo itself tells us how Kagan would have ruled had said ban been before her as a Supreme Court justice: she would have ruled it unconstitutional, just as John Paul Stevens did. These things are not at odds. Kagan’s memo was about the political calculations of abortion – something that she will not have to worry about as a justice. Her political calculations were right…. [C]onfronted with a serious threat to women’s rights, Kagan looked for ways to preserve as many rights as possible given the political circumstances, and that regardless of politics, she believed the right to late-term abortion was, in fact, guaranteed by the Constitution. Far from showing Kagan as wobbly on choice, the memo should be seen as supporting her pro-choice bona fides.

Asked about the memo on CBS’s Early Show today, Republican Senator Jeff Sessions said,

“I don’t sense that she would on that issue move the court to the right. A ‘partial-birth’ abortion situation was something that is to me unthinkable that somebody would oppose that, so she was correct on that for sure. But I don’t know that that reflects any serious disagreement with the court’s view on abortion.”

Pro-choice groups have sent mixed signals:

In a cautious statement issued shortly after Kagan’s nomination, Nancy Keenan, president of NARAL Pro-Choice America, wrote that “We call on the Senate to give Solicitor General Kagan a fair hearing and look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision.”

Cecile Richards, President of Planned Parenthood Federation of America, was more supportive of Kagan, calling her “an accomplished and experienced lawyer and legal scholar who has been a trailblazer throughout her career. . . . We are confident that Kagan will bring the dedication and commitment that have marked her career with her to the highest court in the land.”

Anti-choice groups have no such nuance, of course:

Charmaine Yoest, president of Americans United for Life, call[ed] Kagan an “untried and untested judicial pick” and “an abortion advocate and activist and an apologist for activist judges.

Well, yes, let’s hope so.

Sessions: Kagan Won’t Shift Court on Abortion [CBSNews]
What The Elena Kagan Pick Says About President Obama [Politico]
Abortion Could Be Sleeper Issue In Supreme Court Confirmation Process [WP]
Kagan In ’97 Urged Clinton To Ban Late Abortions [AP]
Elena Kagan Is Not Anti-Choice [Alas A Blog]