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AUL’s Kagan File: The “Marshall” Memo Redux


TO: Interested Parties

FROM: AUL Legal Team

DATE: May 19, 2010

RE: Thurgood Marshall on Abortion:  All Restrictions Constitutionally Impermissible?

Since Elena Kagan has never served as a judge, it is important to review her jurisprudential influences and mentors.  Elena Kagan has expressed a deep affection for the Supreme Court Justice she clerked for, Thurgood Marshall.[1] While many of Justice Marshall’s legal endeavors deserve the praise and gratitude of the nation, his written opinions on abortion do not.

Below is a review of Justice Marshall’s dissenting opinions in cases following Roe v. Wade:

–          1977: In the companion cases of Beal v. Doe[2] and Maher v. Roe[3], the Court held that state funding restrictions on the use of Medicaid funds for non-therapeutic abortions was constitutional.  Justice Marshall, on the other hand, felt the denial of funds for abortions amounted to a violation of Equal Protection under the Fourteenth Amendment (the Equal Protection clause reads, “No State shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.”).[4] Marshall wrote that, “these regulations will have the practical effect of preventing nearly all poor women from obtaining safe and legal abortions.”[5] Justice Marshall not only believed that legalized abortion was constitutionally required, but also that the Fourteenth Amendment mandated that states pay for abortions.

–          1980: In Harris v. McRae[6] (a case argued by Americans United for Life before the United States Supreme Court and in which the Court upheld the constitutionality of the Hyde Amendment), Justice Marshall argued that the Hyde Amendment—which restricts the use of federal funds for abortions— was unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.[7] Marshall stated that “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”[8]

–          1981: In H.L. v. Matheson,[9] Marshall dissented in a parental notification case that was decided on another issue.  With respect to minors, the court and Marshall acknowledged that the state could restrict abortion, but Marshall thought parental notification laws did not pass even “rational basis” scrutiny.10 Marshall believed, “The State cannot have a legitimate interest in adding to this scheme mandatory parental notice of the minor’s abortion decision.”[10]

–          1990: In Hodgson v. Minnesota,[11] Marshall dissented in a parental notification case in which the Court approved a “judicial bypass option” as well as a 48-hour delay requirement.  Marshall argued, contrary to the Court, that no part of the Minnesota parental notification requirement was “even reasonably related to a legitimate state interest.”[12] Even Justice John Paul Stevens acknowledged that notification of only one parent and a 48-hour waiting period were reasonable restrictions on abortion.[13]

Conclusion: Justice Marshall believed that abortion is an unrestricted fundamental right[14], and did not uphold reasonable state restrictions.  In addition, Marshall was in favor of using the Equal Protection clause to force taxpayers into paying for abortions because abortion offered “an escape” from poverty and racial injustice.  If Elena Kagan shares Justice Marshall’s views on reasonable abortion restrictions, any victory that the pro-life movement has won could be quickly overturned.

[1] 71 Texas Law Review 1125 (1993).

[2] Beal v. Doe, 432 U.S. 438 (1977).

[3] Maher v. Roe, 432 U.S. 464 (1977).

[4] Beal, 432 U.S. at 454; Maher 43 U.S. at 337.

[5] Beal, 432 U.S. at 455.

[6] Harris v. McRae, 448 U.S. 297 (1980).

[7] Id. at 341.

[8] Id. at 338.

[9] H.L. v. Matheson, 450 U.S. 398 (1981).

10 Id. at 445, 453-4 (“The State cannot have a legitimate interest in adding to this scheme mandatory parental notice of the minor’s abortion decision.”)

[10] Id. at 453 (emphasis added).

[11] Hodgson v. Minnesota, 497 U.S. 417 (1990).

[12] Id. at 462.

[13] Id. at 449.

[14] Id. at 462.