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Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The “Abortion Funding” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 13, 2010

RE: Elena Kagan and Title X Restrictions:  How Her Views Could Impact Abortion Funding Regulations

Backgrounder: Elena Kagan has extensively criticized the Supreme Court decision in Rust v. Sullivan,[1] where the Court upheld the constitutionality of Dept. of Health and Human Services’ regulations that prohibit Title X family planning funds from being “used in programs where abortion is a method of family planning.”  This prohibition also applies to promoting and counseling on abortion.

  • Kagan argues that the Title X regulations amount to unconstitutional viewpoint discrimination.[2]
  • In an article, Kagan wrote:  Rust illustrates the way in which government funding may have both more potent and more disruptive effects than direct government speech, even holding expenditures constant.  The impact of the government’s own speech on abortion questions likely pales in comparison to the impact of advice and counseling given to pregnant women by health care providers.  (The reason relates not only to the sources of the speech—an apparently independent professional—but also the time at which it occurs.)  How better, then, to communicate an anti-abortion message: through direct speech or through selective subsidization of health care providers?  The latter course amplifies the government’s own message at the same time as (and partly because) it wreaks havoc on the ability of those private parties in the best position to challenge the message to provide a counterweight to government authority.”[3]
  • Kagan also wrote that in Rust, “the Court, to its discredit, announced that because the selectivity occurred in the context of a governmental funding program, the presumption against viewpoint discrimination was suspended.”[4]
  • Kagan went so far as to state that “a refusal to fund any speech relating to abortion would have been constitutionally preferable to the funding scheme that the regulations established.”[5] In other words, Kagan believes that it is unconstitutional for the federal government to fund speech that promotes childbirth while prohibiting funding for speech that promotes abortion.
  • In contrast, the United States Supreme Court has held that the government may “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.”[6]
  • In Rust, the Court further held:  “The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.[7]
  • The Court’s decisions in these funding cases are critical to protecting the unborn.  If the Supreme Court were to strip Congress’ ability to prohibit the use of federal funds to perform or promote abortions, Congress would not be able to stop recipients of federal funds from using taxpayer dollars to directly pay for abortions.


Elena Kagan has argued that the use of government funds to promote life over abortion is unconstitutional.  However, the role of the government is to make these choices in a Democracy.  The Supreme Court has repeatedly affirmed Congress’ determination that the state has an interest in protecting unborn life.  Kagan’s disagreement shows how far outside of the mainstream her views are.

[1] 500 U.S. 173 (1991).

[2] See Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion,1992 Sup. Ct. Rev. 29 (1992).

[3] Id. at 56.

[4] Elena Kagan, Regulation of Hate Speech and Pornography after R.A.V., 60 U. Chi. L. Rev. 873 (1993).

[5] 1992 Sup. Ct. Rev. 29, 67-68.

[6] 500 U.S. 173, 192-3 (citing Maher v. Roe, 432 U.S. 464, 474 (1977)).  See also Harris v. McRae, 448 U.S. 297(1980).

[7] Id. at 193.