Skip to content
Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The “Pro-Abortion Politicians” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 17, 2010

RE: Senator Boxer Agrees with Americans United for Life: Kagan is Pro-Abortion


This past Tuesday, Senator Barbara Boxer (D-CA), a staunch abortion advocate, voiced support for Kagan- “I have no reason to think anything else except that [Kagan] would be a very strong supporter of privacy rights because everyone she worked for held that view.”[1] (“Privacy rights” is the euphemism under which Justice Blackmun imposed a right to abortion on America in Roe v. Wade.)

We agree.  Whom a person works for and whom she supports—both with her time and with her money—reveals a great deal.

Today, we examine whom Kagan has worked for and their positions on abortion.  Next week, we will look at whom she has supported.

Whom She Worked For:

  • The first year after Kagan graduated from law school, she clerked for federal Judge Abner Mikva, who, during an interview, stated: “I think judges tend to be too separate from the political process and the body politic.  I support the result of Roe v. Wade. When I was a member of the state legislature, I was introducing proposals to make Illinois law approximate what Roe v. Wade later on did…And then, to my pleasant surprise, the Supreme Court came down with [a decision that] preempted the whole political process.”[2] (Roe, along with its companion Doe v. Bolton, created an unrestricted “right” to abortion.)
  • In 1987, Kagan clerked for Supreme Court Justice Thurgood Marshall, whom she calls “the greatest lawyer of the 20th century.” [3] Marshall was a strong abortions rights supporter while on the Bench.  In Beal v. Doe, which involved the disbursement of federal funding to abortion clinics, the U.S. Supreme Court ruled that the Social Security Act did not require the funding of nontherapeutic abortions as a condition of participation in the Medicaid program. [4] Justice Marshall disagreed with the majority’s holding: “The right of every woman to choose whether to bear a child is, as Roe v. Wade held, of fundamental importance. An unwanted child may be disruptive and destructive of the life of any woman…”[5] Justice Marshall stated that without federal funding of abortion, “a vital constitutional right,”[6] any “chance to control the direction of [a woman’s] own life will have been lost.”[7]
  • In 1988, Kagan worked as a Researcher for Michael Dukakis’ presidential campaign.  Dukakis was one of the most outspoken pro-abortion politicians of his time. Three years before Roe v. Wade, he introduced a bill in the Massachusetts House to repeal that state`s then strongly pro-life laws.[8]
  • In the summer of 1993, Kagan worked as special counsel to then-Senator Joe Biden on the Senate Judiciary Committee, working on the confirmation hearing of Justice Ruth Bader Ginsburg.  Biden believes the Constitution offers an “inherent right to privacy” and “strongly supports Roe v. Wade.”[9] During a 2007 Democratic primary debate, when asked whether he would have a specific litmus test question on Roe for Supreme Court nominees, Biden stated: “I would make sure that the people I sent to be nominated for the Supreme Court shared my values; and understood that there is a right to privacy in the United States Constitution.  That’s why I led the fight to defeat Bork, Roberts, Alito, and Thomas.”[10]
  • From 1995-1999, Kagan worked for President Bill Clinton as Associate Counsel to the President, and then Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.  Clinton vetoed the Partial Birth Abortion Ban passed by Congress not once, but twice;[11] reversed the Mexico City Policy, allowing federal funding to go to groups that perform or promote abortion;[12] and supported the Freedom of Choice Act (codifying Roe and Doe into federal statutory law). [13]
  • President Obama, one of the most pro-abortion presidents in our nation’s history,[14] picked Kagan to be the Solicitor General in 2009, and has now nominated her to the U.S. Supreme Court.  In Obama’s statement on the 35th Anniversary of Roe v. Wade during his presidential campaign, he said: “With one more vacancy on the Supreme Court, we could be looking at a majority hostile to a women’s fundamental right to choose for the first time since Roe v. Wade. The next president may be asked to nominate that Supreme Court justice.  That is what is at stake in this election.”[15]


Kagan has worked for, and is close friends with, two of the most pro-abortion presidents in American history, as well as other pro-abortion politicians.   As Senator Boxer stated, we do have every reason to believe Kagan will bring the same radical pro-abortion worldview to the Supreme Court.

[1] See http://dyn.politico.com/printstory.cfm?uuid=89929ECB-18FE-70B2-A8FB1FF13112D311.

[2] See http://globetrotter.berkeley.edu/people/Mikva/mikva-con4.html.

[3] Erick Lichtblau, “Potential Justice’s Appeal May be Too Bipartisan,” April 17, 2009, available at http://www.nytimes.com/2009/05/17/us/17kagan.html?ref=global-home.

[4] 432 U.S. 438 (1977).

[5] Beal v. Doe, 432 U.S. 454, 458 (1977).

[6] Id. at 461.

[7] Id. at 459.

[8] See http://articles.chicagotribune.com/1988-08-13/news/8801230321_1_abortion-unborn-dukakis.

[9] See http://www.ontheissues.org/Social/Joe_Biden_Abortion.htm.

[10] Id.

[11] See http://www.abortionfacts.com/partial_birth/congressional_bans.asp.

[12] See http://abcnews.go.com/Politics/International/story?id=6716958&page=1.

[13] See http://www.clintonmemoriallibrary.com/clint_abort.html.

[14] Within three days of President Obama taking office, he overturned the Mexico City Policy, which forbade federal funding of groups that provide or promote abortion.  For other instances, see http://www.aul.org/2008/06/what-did-barack-obama-promise-planned-parenthood.

[15] See http://www.barackobama.com/2008/01/22/obama_statement_on_35th_annive.php (emphasis added).