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AUL’s Kagan File: The “Marshall Dissents” Memo, Part 1


TO: Interested Parties

FROM: AUL Legal Team

DATE: May 26, 2010

RE: A Deeper Look at Marshall’s Dissents, Part I

Elena Kagan has described Thurgood Marshall’s constitutional interpretation as “a thing of glory”[1] because he thought the role of the court was to “show a special solicitude for the despised and disadvantaged.”[2] While that may be admirable in the abstract, the reality of Justice Marshall’s decisions concerning abortion bears further scrutiny.

Last week we reviewed Justice Marshall’s opinions on abortion in the context of federal and state funding of abortions.[3] Today, we look at the companion cases of Beal v. Doe,[4] and Maher v. Roe.[5] There, Justice Marshall articulated what a “special solicitude for the despised and disadvantaged” actually meant in his mind in the context of taxpayer funded abortion.


In Beal and Maher, Medicaid patients in Pennsylvania and Connecticut were denied financial assistance for nontherapeutic abortions.[6] Nontherapeutic abortions are abortions in which the life of the mother is not in danger.  The majority of the court upheld the Pennsylvania and Connecticut restrictions, finding no constitutional right under the Equal Protection clause of the Fourteenth Amendment to mandate the state pay for abortions[7] (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”).  However, Justice Marshall dissented on Equal Protection grounds: “[t]he impact of the regulations here falls tragically upon those among us least able to help or defend themselves.”[8] He apparently missed the brutal irony of his words.

Justice Marshall’s argument personifies a method of constitutional interpretation that was not a “thing of glory” but rather a means to push an abortion agenda through the courts.  Justice Marshall made the following arguments to support his expansive understanding of the Equal Protection clause:

  • Marshall felt that forcing women who relied on Medicare to pay for abortions from their own pockets was an attempt to “brutally coerce poor women to bear children whom society will scorn for every day of their lives.”[9]
  • Marshall was “appalled at the ethical bankruptcy of those who preach a ‘right to life’ that means, under present social policies, a bare existence in utter misery for so many poor women and children.”[10]
  • Marshall thought this ethical bankruptcy forces “thousands of unwanted minority and mixed-race children” to spend “blighted lives in foster homes, orphanages, and ‘reform’ schools.”[11]
  • Therefore, Marshall declared the laws were “governmental actions…ostensibly taken to ‘encourage’ women to carry pregnancies to term” but with the real purpose of “impos[ing] a moral viewpoint that no state may constitutionally enforce.”[12]


Marshall’s belief in public funding of abortion is indicative of his judicial philosophy.  Marshall felt a judge should “do what [he] thinks is right and let the law catch up.”[13] Therefore, he believed he had the power to “correct” society’s ills by granting rights that had never existed before, even if he had to overturn the will of the people.  Marshall’s “special solicitude for the despised and disadvantaged” included telling people their tax dollars were to be used to abort society’s most vulnerable members under a concept of Equal Protection the Court has never embraced to this day.

Does Elena Kagan believe this vision is still a “thing of glory” that she would follow as a Justice?  America deserves to know.

[1] Elena Kagan, For Justice Marshall, 71Tex L. Rev. 1125, 1130.

[2] Id. at 1129.

[3] http://www.aul.org/2010/05/auls-kagan-file-the-marshall-memo-redux/.

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

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

[6] Beal, 432 at 438.

[7] Maher, 432 U.S. at 474-6.

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

[9] Id. at 456.

[10] Id. at 456-7.

[11] Id. at 456.

[12] Id. at 454-5.

[13] Deborah L. Rhode, Letting the Law Catch Up, 44 Stan. L. Rev. 1259, 1259 (1992).