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

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TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 25, 2010

RE: Elena Kagan File:  Kagan’s Problematic Abortion Record


Some have argued that Solicitor General Kagan managed to avoid a “paper trail” on abortion during her career; therefore, she will avoid difficult questions on the issue during her confirmation hearing.  However, as Kagan herself stated, “a [Supreme Court] nominee . . . usually can comment on judicial methodology, on prior caselaw, on hypothetical cases, on general issues like affirmative action or abortion.”[1] Furthermore, a deeper look reveals that Kagan has a sufficient paper trail to raise questions that must be answered.

  • Kagan financially supported The National Partnership for Women and Families:

Kagan has contributed money to the National Partnership for Women and Families, a pro-abortion organization with strong ties to Emily’s List and NARAL.[2]

NPWF describes themselves as a “national pro-choice group.”[3]

  • Kagan has extensively criticized the Supreme Court decision in Rust v. Sullivan, where the Court upheld the constitutionality of the 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: “the Court [in Rust], 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] (emphasis added).

In other words, Kagan does not think that the provision of federal funding for a family planning program provides sufficient justification for the government to permit speech favoring childbirth while it prohibits speech promoting abortion.

Kagan: “[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]

  • Elena Kagan’s characterization of Aharon Barak as her “judicial hero” raises serious concerns about her judicial philosophy, and whether she would issue decisions like Roe. v. Wade:

In 2006, Elena Kagan, called Aharon Barak “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”[7] Barak is known as an unabashed judicial activist. The Hon. Justice Richard Goldstone, a former justice of the Constitutional Court of South Africa and chief prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia stated, “[Aharaon Barak] is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”[8]

In his book, The Judge in a Democracy, Barak says that to interpret law, “The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality . . . .  The [wording of the] statue remains as it was, but its meaning changes, because the court has given it a new meaning . . . .”[9]

  • Kagan has been dismissive of the harmful effects of abortion on women:

Kagan is dismissive of the harmful effects abortion has on women’s physical, emotional, and psychological health, calling them “widely contested.”[10]

  • Kagan has demonstrated hostility towards pro-life voters/candidates:

Kagan: “I found it hard to conceive of the victories of these anonymous but Moral Majority-backed [candidates] . . . these avengers of ‘innocent life’. . .” (emphasis added) (stated in an article about Republican gains in the 1980 election).[11]

  • Kagan has worked for and financially supported pro-abortion politicians and officials:

Kagan campaigned for a pro-abortion candidate (Michael Dukakis), clerked for pro-abortion judges (Judge Abner Mikva and Justice Thurgood Marshall), and worked for pro-abortion presidents (President Bill Clinton and President Barak Obama).[12]

As Senator Barbara Boxer stated:  “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.”[13] (“Privacy rights” is the rubric under which the Supreme Court imposed abortion on America).

Kagan has given campaign contributions to pro-abortion candidates, including President Obama, John Kerry, Hillary Clinton, and Al Gore.[14]

  • Kagan recommended that President Clinton support a phony compromise to the Partial-Birth Abortion Ban, in spite of her implied belief that the ban was unconstitutional:[15]

If Kagan believes that the Daschle amendment (the phony compromise), whose broad exceptions would have allowed every abortion, was unconstitutional, she would certainly be hostile to more restrictive legislation like the partial-birth abortion ban upheld by the Court in Gonzales v. Carhart, which did not contain the standard “health exception.”[16]

Kagan: “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto”.[17] 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 interpret the Constitution if confirmed as a Justice on the Supreme Court.

  • Elena Kagan argued in a memo to Justice Marshall that federal funding for programs that serve those in need of pregnancy-related care should be “off limits” to religious organizations:[18]

The Supreme Court rejected Kagan’s position in Bowen v. Kendrick.[19] In Bowen, the Supreme Court reversed the district court’s ruling that federal grants to religious organizations under the Adolescent Family Life Act (AFLA) violated the Establishment Clause of the First Amendment.  Notably, Justice Marshall dissented.

While Kagan now attributes the opinions in her memo to Justice Marshall,[20] the express language in the memo states:  “I think the (district court) got the case right.”[21] Kagan does not argue that, based on Marshall’s past opinions, he should support the lower court’s decisions – Kagan states that she agrees with the lower court.

It is disconcerting that as a clerk for a Supreme Court justice, she thought it was her role to manipulate Constitutional law to “advance his goals and purposes,” as she stated in her hearing.  This raises the troubling question of what she will expect from her own clerks as a Supreme Court justice – will she expect them to tailor their recommendations to “advance her goals”?

Given that she once stated that basic services for the needy are “so close to the central concerns of religion, all religious organizations should be off limits” from receiving federal funds, the question remains:  what activity would she say is “too religious” for an organization to do using federal funds?  Would she be hostile to public funding for pregnancy care centers?


Members of the Senate Judiciary Committee should extensively question Kagan about her financial support of a pro-abortion organization, lifetime service of pro-abortion policy makers, troubling admiration for judicial activists, hostile views towards commonsense regulations of abortion, and her disapproval of federal funding for programs that help pregnant women simply because the recipients of federal funds are religious organizations.  All of these raise serious concerns about Kagan’s judicial philosophy and whether she will respect Court holdings that contradict her views.

[1] Elena Kagan, Review:  Confirmation messes, Old and New, 62 U. Chi. L. Rev. 919, 940 (Spring, 1995).

[2] See Kagan’s Response to Senate Judiciary Committee Questionnaire, Solicitor General Nomination, page 5, available at http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-Public-Questionnaire.pdf

[3] The New Political Landscape for Reproductive Health, Women’s Health Policy Report (National Partnership for Women and Families, Washington, D.C.), January 2010, at 2, available at http://www.nationalpartnership.org/site/DocServer/Year_End_Review_2009_FINAL_may_2010.pdf?docID=6502.

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

[5] 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) at 67-8.

[6] Rust v. Sullivan, 500 U.S. 173, 192-3 (1991) (citing Maher v. Roe, 432 U.S. 464, 474 (1977)); See also Harris v. McRae, 448 U.S. 297(1980).

[7] Rebecca Agule, Distinguished Israeli Jurist Receives 2006 Justice Prize, Harvard Law Record, Sept. 28, 2006 available at http://www.hlrecord.org/2.4463/distinguished-israeli-jurist-receives-2006-justice-prize-1.578536.

[8] 48 Harv. Int’l L.J. Online 54 (2007).

[9]Aharon Barak, The Judge in a Democracy, 4, Princeton UP, 2006.

[10] Kagan, Regulation , supra note 4, at 898 (1993).

[11] Elena Kagan, Nov. 10, 1980:  Fear and Loathing in Brookyn, The Daily Princetonian, Nov. 10, 1980, available at http://www.dailyprincetonian.com/2010/05/03/26082/.

[12] Kagan Questionnaire, supra note 2 at 30-31.

[13] Democratic Sens. Work To Assure Liberals of Kagan’s Positions, Women’s Health Policy Report- Daily Report (National Partnership for Women and Families, Washington, D.C.), May 12, 2010, available at http://www.nationalpartnership.org/site/News2?abbr=daily2_&page=NewsArticle&id=24522&security=1201&news_iv_ctrl=-1.

[14] Elena Kagan—Campaign Contributions of $200, available at http://www.newsmeat.com/fec/bystate_detail.php?city=Cambridge&st=MA&last=Kagan&first=Elena

[15] See Memorandum from Bruce Reed and Elena Kagan to President Bill Clinton (May 13, 1997), available at http://abcnews.go.com/images/Politics/May13,1997memo.pdf.

[16] See Gonzales v. Carhart, 550 U.S. 124 (2007).

[17] See Memorandum, supra note 15.

[18] Memorandum from Elena Kagan to Justice Thurgood Marshall on Kendrick v. Bowen (1987) (Reproduced from the Collections of the Manuscript Division, Library of Congress) (hereinafter, “Marshall Memo”).

[19] Bowen v. Kendrick , 487 U.S. 589 (1988).

[20] The Nomination of Thomas Perrelli to be Associate Attorney General; The Nomination of Elena Kagan to be Solicitor General of the United States, 111th Cong. 10 (2009).

[21] Marshall Memo, supra note 18.