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AUL’s Kagan File: Week Three

Click here for a PDF version of this memo.


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 1, 2010

RE: Elena Kagan File:  Summary of File May 25-28


Today’s file document is a summary of our memos from last week (May 25th through May 28th).  Our full analyses, including citations, for each of these documents are linked below.

1. The “Abortion Record” Memo – In this Memo, we provided a listing of Kagan’s troubling writings and activities related to abortion.  These included:

  • Kagan’s financial support for the National Partnership for Women and Families, a pro-abortion organization.
  • Her extensive criticism of 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.”
  • Kagan’s characterization of Aharon Barak as her “judicial hero,” which raises serious concerns about her judicial philosophy, and whether she would issue decisions like Roe v. Wade.
  • Her dismissive statement about the harmful effects of abortion on women.
  • Her demonstrated hostility towards pro-life voters/candidates.
  • Her work for, and financial support of, pro-abortion politicians and officials.
  • Kagan’s recommendation that President Clinton support a phony compromise to the Partial-Birth Abortion Ban, in spite of her implied belief that the ban was unconstitutional.
  • Her argument 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.

2. The “Marshall Dissents” Memo, Part 1 – Elena Kagan was a clerk for Justice Thurgood Marshall during his tenure on the Supreme Court.  Justice Marshall felt that a judge should “do what [he] thinks is right and let the law catch up.”  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.

In Beal v. Doe and Maher v. Roe, the Supreme Court upheld restrictions on abortion funding for Medicaid patients in which the life of the mother is not in danger.   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.”  He apparently missed the brutal irony of his words.

Marshall’s “special solicitude for the despised and disadvantaged,” which Kagan admired, 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.  Kagan must be asked whether she believes this vision is still a “thing of glory” that she would follow as a Justice.

3. The “College” Memo – While she was in college at Princeton, Kagan spent “14 hours a day, six days of a week” during one of her summer breaks working for political candidate Elizabeth Holtzman.  Kagan admired Holtzman’s “intelligence, her integrity, her ideals.”  Among her core ideals were “abortion rights.”

Following Holtzman’s defeat, Kagan published an editorial in which she wrote:  “I found it hard to conceive of the victories of these anonymous but Moral Majority-backed [candidates].”  Then, in a disturbing reference, Kagan described the victors of these races as “avengers of ‘innocent life.’”  Why did Kagan place quotation marks around the words, “innocent life”?  Did Kagan contest the scientific fact that the unborn are alive?  Or was her statement expressing doubt of their innocence?  Either way, it communicates hostility to unborn human life and to those who promote protection of unborn human life.

If confirmed as a Supreme Court justice, how will her disdain for those who seek protection of innocent life impact her judicial opinions when cases involving such laws come before the Court?  Importantly, in 1995, Kagan wrote that “many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

4. The “Marshall Dissents” Memo, Part 2 – Justice Marshall dissented in a case concerning a Utah parental notification statute, H.L. v. Matheson.   In Matheson, the Court held, “a statute setting out ‘mere requirement of parental notice’ does not violate the constitutional rights of an immature, dependent minor.”

Justice Marshall, however, dissented.   Marshall dismissed the state’s claim that the law would help in “protecting parental authority and family integrity” by stating that “parental authority deserves de minimus [minimal] legal reinforcement where the minor’s exercise of a fundamental right is burdened.”

Abortion regulations like parental notification have been shown to reduce abortions.   The Utah law was a reasonable abortion restriction that did not affect the ability of a minor to procure an abortion.  Yet, Justice Marshall was firmly against it and all parental notification laws.  He was disdainful of parental oversight of underage minor children in the context of abortion.

Elena Kagan must answer questions about whether she agrees with her mentor’s opposition to parental notification requirements – requirements that have been upheld by the Supreme Court.