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Kagan File, News, Statements

AUL’s Kagan File: The “No Impartial Justice” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 15, 2010

RE: Elena Kagan File:  No Impartial Justice on Abortion


On Friday, the Clinton Library released thousands of documents from Elena Kagan’s service in the Clinton White House from 1995-1999.  Kagan was one of President Clinton’s primary advisors on how to respond to the passage of the Partial Birth Abortion Act of 1997.  She also advised President Clinton on other legislative proposals that implicated abortion rights.

Some of these documents further illuminate the extremity of Kagan’s position on abortion.  What’s more, they reveal that, as a Supreme Court Justice, Kagan will likely be too partisan to consider impartially any abortion-related cases that come before the Court.  The newly- released documents reveal:

First, Kagan thought the President was “too lenient” on what he would accept in a partial-birth abortion ban, even though the ban he was willing to accept would not necessarily prevent any woman from having an abortion.

  • A February 15, 1996 memo reveals her opposition to the President’s tentative support for a pre- as well as a post-viability ban.[1] In other words, Kagan opposed any limits on abortion in the first six months of pregnancy.
  • Kagan believed a proposed limit on the right to a partial birth abortion was “unconstitutional… because it prohibits the use of the partial birth procedure in any pre-viability case in which the woman desires the abortion for non-health reasons. . . .”[2] In other words, Kagan did not believe partial-birth abortion should be limited to issues affecting a woman’s health prior to viability, but should be permitted for any reason.
  • She also argues that “the [pro-abortion] groups will go crazy” if Clinton doesn’t do what they want.[3] In other words, she didn’t want to disappoint the pro-abortion groups.
  • Instead, she recommends that the President’s ban have an even broader “health” exception, which would have the effect of limiting even fewer abortions.[4]

Second, Kagan was undeterred in her opposition to meaningful limitations on partial birth abortion even after discovering that the American College of Obstetricians and Gynecologists (ACOG) could not find a legitimate need for it. [5]

  • Amazingly, instead of being concerned that the President was wrong in vetoing the PBA Ban Act of 1995 in light of ACOG’s information, Kagan worried that the President’s proposed alternative language was too pro-life because it was rarely the case that a partial-birth abortion was needed for health reasons.  Therefore, the President’s language, in spite of its broad health exception, would prevent more abortions than the White House realized.[6] In other words, Kagan was determined to prevent as few abortions as possible.
  • In a December 14, 1996 memo, Kagan opposed the release of a truthful proposed statement by ACOG that partial-birth abortion is never medically necessary – “The release of the statement], of course, would be disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation.”[7]

Third, Kagan was in tune with Capitol Hill politics and clearly sided with pro-abortion lawmakers over pro-life lawmakers.

  • In the December 14, 1996 memo, Kagan noted approvingly that “Sen. Daschle’s staff is working on a legislative proposal that would prohibit all post-viability abortions, with a tight exception for life and health. . . . Daschle’s staff hopes that this proposal will provide cover for pro-choice Senators (who can be expected to support it) and that it will refocus the debate from the partial-birth procedure to late-term abortions generally.”[8]
  • She recommended that the President support the Daschle proposal.[9]
  • In a series of memos in 1997 and 1998, Kagan addressed the progress of other abortion-related proposals on Capitol Hill, and described how the White House was concerned about or was trying to block pro-life legislation.  In a June 8, 1998 memo addressing Medicare funding for abortion, Kagan wrote “We are very concerned that Senator Nickles will soon highlight this issue, adding it to the growing list of abortion proposals Congress will take up this year.”[10]
  • On July 7 1998, Kagan wrote that the White House was trying to prevent the Senate from stopping RU-486 development.[11]


Documents from Elena Kagan’s record continue to show that she is a partisan who has strong pro-abortion views. When such cases come before the Court, could Kagan judge them impartially given her bias?  It is critical that Senators on the Judiciary Committee extensively question Kagan on her recommendations that she made during her time in the White House. Particularly – in light of her previous statement that a partial-birth abortion ban that lacks a health of the mother exception and that extends to pre-viability abortions would be unconstitutional – would she respect the Court’s decision to uphold just such a ban in Gonzales v. Carhart?[12]

[1] Elena Kagan, DOMESTIC POLICY COUNCIL BOXES 69-70, p. 178, available at http://www.clintonlibrary.gov/textual-KaganDPC-69and70_StaffandOffice.htm.

[2] Id.

[3] Id.

[4] Id. at 178-79.

[5] Id. at 146.

[6] Id. at 148.

[7] Id. at 1336.

[8] Id.

[9] Id.

[10] Kagan, White House Office of Records Management (WHORM), p. 697, available at http://www.clintonlibrary.gov/textual-KaganWHORM.htm.

[11] Id. at 725.

[12] 550 U.S. 124 (2007).