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

AUL’s Kagan File: The “Partial-Birth Abortion Ban” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 18, 2010

RE: Kagan to President Clinton:  Partial-birth abortion ban unconstitutional; nonetheless, support “compromise” for political gain

In 1997, while serving as an associate White House Counsel to President Bill Clinton, Elena Kagan advised the President on HR 1122, a bill to ban partial-birth abortions.[1] Kagan’s memo to the President containing her advice was selectively leaked to the press and has been spun to present Kagan as a moderate who would possibly be friendly to pro-life legislation.  The memo, however, does not support that conclusion.  Rather, Kagan’s advice to President Clinton indicates that she could be hostile to pro-life legislation.  Moreover, it raises questions regarding her respect for the Constitution.

The Context

In 1997, the House passed HR 1122, an act to amend Title 18, United States Code, to ban partial birth abortions.  The bill would ban any abortion “in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery,” unless necessary to save the mother’s life.[2]

President Clinton had vetoed a previous partial-birth abortion ban passed by the House and Senate.  HR 1122 passed the House on a vote of 295 to 136.  With over 290 votes, there was enough support in the House to override a presidential veto.

Pro-abortion Senators looking for a way to dodge accountability for voting against the ban that had overwhelming support of the American people offered two amendments that would have rendered the bill meaningless. Elena Kagan’s newly disclosed memo to the President was an evaluation of these two amendments, one offered by Senator Tom Daschle (D-SD) and one offered by Senator Dianne Feinstein (D-CA).

Kagan advised gutting the partial-birth-abortion ban

In her memo, Kagan does not suggest the President support the partial birth abortion ban.  Instead, she suggests the President support the amendment offered by Senator Daschle.[3]

The Daschle amendment was promoted as going further than a partial birth abortion ban and banning any abortion after “viability.”  However, though the Daschle amendment applied to all abortion procedures, its “ban” was rendered meaningless by its exceptions.  No single abortion, partial-birth or otherwise, would have been prohibited by the amendment.

Importantly, the Daschle amendment did not include any objective fetal viability testing requirement.[4] Rather, under the Daschle proposal, the abortionist would be the sole judge of the viability of the unborn child and would decide when (and to what child) the bill applies.  Such a law would be impossible for an abortionist to violate, as its terms would be left to his subjective judgment.

Second, even if the child were determined to be viable, the Daschle amendment would have allowed abortion if an abortionist determined that “continuation of the pregnancy” would “risk grievous injury” to the mother.

The Daschle amendment defines “grievous injury” to include (a) any condition that is medically diagnosable and (b) any condition for which termination of pregnancy is “medically indicated.”  Federal courts have interpreted “medically necessary” to mean the same things as “health” within Doe v. Bolton.[5] The Court in Doe, decided the same day as Roe v. Wade,[6] created an unlimited definition of maternal “health.” The Court wrote, “[T]he medical judgment may be exercised in the light of all factors- physical, emotional, physchological, familial, and the woman’s age – relevant to the well being of the patient.  All these factors may relate to health.”  The Court held that the abortionist was allowed to make that judgment. 

Apparently Kagan believes even a phony ban is unconstitutional

Kagan’s memo states, “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.”[7]

Kagan’s memo does not counter the assertion about the amendment’s unconstitutionality.  Thus, it would seem that Kagan accepts OLC’s assessment.  If Kagan believes that the Daschle amendment, whose exceptions would have allowed any abortion, was unconstitutional, she would certainly be hostile to any true pro-life legislation like the partial-birth abortion ban upheld by the Court in Gonzales v. Carhart, which did not contain the standard “health exception.”[8]

Kagan suggested the President support language she believed would be unconstitutional?

After stating that the Daschle language would be unconstitutional (without offering any advice to the contrary), she urges the President to support it, her rationale being that his support would offer political cover.  “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.”[9]

Supporting language that one believes is unconstitutional for political gain is unconscionable regardless of the branch of government in which one serves.  Elena Kagan’s responsibility was to uphold the Constitution.  Her advice to President Clinton raises serious questions as to how she will view her role as guardian of the Constitution if confirmed as a Justice on the Supreme Court.


Elena Kagan’s advice to President Clinton serves as a warning for the vast majority of Americans who oppose expansion of abortion.  Her memo suggests that in her opinion even phony compromise legislation which purports to regulate abortion is unconstitutional.  Moreover, her advice to President Clinton that he should support what she believed to be unconstitutional language raises serious questions about her commitment to upholding the Constitution.

[1] Memorandum from Bruce Reed and Elena Kagan to President Bill Clinton (May 13, 1997).

[2] Section 1531 (a) “This paragraph shall not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury: Provided, that no other medical procedure would suffice for that purpose.”

[3] Kagan’s memo does not expressly support the Feinstein amendment, which, similar to Daschle’s amendment, created a broad “health” exception.  Kagan’s memo described the Feinstein amendment as being “rightly view[ed] as a less serious proposal.”  See Memorandum, note 1 at 2.

[4] Such as the Missiouri provision upheld by the Supreme Court in Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

[5] Doe v. Bolton, 410 U.S. 179 (1973). The Court reaffirmed the Doe definition of “health” in Beal v. Doe, emphasizing the stipulation that “medical necessity” in the Pennsylvania law “is broad enough to encompass the factors specified in [Doe v.] Bolton.” 432 U.S. 438 (1977).  The lower federal courts have also applied the Doe health definition broadly to strike down regulations without such a “health” exception.  For example, the Third Circuit, in American College of Obstetricians & Gynecologists v. Thornburgh, citing Doe v. Bolton, declared that “[i]t is clear from the Supreme Court cases that “health” is to be broadly defined.” 737 F.2d 283, 299 (3d Cir. 1984). The Supreme Court affirmed that decision. 476 U.S. 747 (1986).  Similarly, the Sixth Circuit, in Women’s Medical Professional Corp. v. Voinovich, affirmed the subjective discretion of the abortion provider and the Doe definition of health, starkly declaring that “Roe’s prohibition on state regulation when an abortion is necessary for the ’preservation of the life or health of the mother’ must be read in the context of the concept of health discussed in Doe.” 130 F.3d 187, 209-10 (6th Cir. 1997) (“importance of giving the physician discretion to decide whether an abortion is necessary”; finding the health exception unconstitutionally limited “the physician’s discretion to determine whether an abortion is necessary to preserve the woman’s health…”), cert. denied, 523 U.S. 1036 (1998). See Voinovich v. Women’s Medical Professional Corp., 523 U.S. 1036, 1039 (1998).

[6] 410 U.S. 113 (1973).

[7] See Memorandum, note 1 at 2.

[8] 550 U.S. 124 (2007).

[9] See Memorandum, note 1 at 2.