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In the News: AUL’s expert commentary on the Kagan hearings

Last week, AUL’s experts wrote about the Senate Judiciary Committee’s hearings on the nomination of Elena Kagan. This expert commentary was published at both Human Events and National Review Online’s Bench Memos. All of the commentary is excerpted below.

NRO’s Bench Memos

Kagan Displays ‘A Real Hostility to Commonsense Abortion Regulations’ by Dr. Charmaine Yoest

As I left the hearing, I was reminded how much research we all do when we look into purchasing a car, a home, or something else of great importance in our lives. That’s just part of being responsible, it’s what all of our parents taught us — know what you are getting into, do your homework.

If Elena Kagan is confirmed to the Supreme Court, she will be on the bench for decades making decisions that will affect all of us. With so many outstanding questions, our elected representatives need to take the time to know what they are getting all of us into.

Kagan’s Slippery Abortion Amendment by Clarke Forsythe

Americans United for Life filed briefs in the Supreme Court in 2006 that recounted how the records in the three federal court challenges were devoid of any peer-reviewed medical evidence showing the safety and efficacy of the procedure or any increased risk to any woman from prohibiting the procedure. There was no substantial, reliable evidence that any maternal or fetal condition required the use of partial-birth abortion. Kagan altered the language, but ACOG never provided any peer-reviewed scientific data to support that language. The ACOG panel did not identify or examine any studies regarding the safety of partial-birth abortion and other abortion methods. Without consulting the panel, the ACOG executive board unilaterally added Kagan’s amendment.

The Supreme Court in 2007 upheld the federal prohibition. But the Court, based on abortion advocates’ claims of serious risks to women, held the door open to “as-applied,” or individualized, claims that a particular woman’s medical condition required a partial-birth abortion.

More than three years later, not one individualized claim by any woman claiming to need the partial-birth abortion procedure has been filed in state or federal court.

Feinstein and Kagan on the Doe ‘Health’ Exception by Clarke Forsythe

There are significant problems with Kagan’s application of the Doe “health” definition to state regulations. Among the most important for the Court’s future stewardship as the nation’s abortion-control board is that the Doe “health” definition is a one-way rachet — it exclusively focuses on potential risks to “emotional well-being” from delaying abortion, and excludes any recognition of the risks — short-term or long-term — to women from abortion.

Overemphasis on Abortion in Confirmation Hearings: A Response to Adam Liptak by Clark Forsythe

Since the court has assumed the role of national abortion-control board, its stewardship of that public-health problem is a serious issue, but it would have been better for the administrative of justice if the court had left the abortion issue where the Constitution left it — with the American people acting through their elected representatives.

Human Events

Kagan ‘More Radical’ than Supreme Court on Abortion by Mary Harned

American United for Life President & CEO Dr. Charmaine Yoest testified tonight before the Senate Judiciary Committee that Supreme Court nominee Elena Kagan’s statements show she is “more radical” than the Supreme Court has ever been on the issue, and would eliminate all restrictions on abortion that have been approved by voters and legislators.

Kagan Downplays Declaration of Independence by Matthew Faraci

Ironically, just before revealing her lack of a “view” on what the Founding Fathers called “unalienable rights,” she made a “pledge” to Sen. Coburn that she would reread The Federalist Papers.

Kagan’s refusal to acknowledge the fundamental rights enumerated in the Declaration of Independence shows a troubling disregard for the principles upon which our nation was founded.

Reaction to Day Three of Elena Kagan’s Confirmation Hearings by Dr. Charmaine Yoest

Kagan may have dodged the issue today during Senator Hatch’s questioning, but she made a deliberate decision to advocate for partial-birth abortion in December of 1996, even to the point of ignoring science. This is not the type of impassioned judgment we want a justice to possess on the bench. Kagan’s judgment is deflected by passion as evidenced by her advocacy for a gruesome procedure medically unnecessary to protect a woman’s health.

Kagan Testimony Raises Discrepancy on Efforts to Lobby Medical Groups on Partial Birth Abortion by Mary Harned

Senators need to ask Kagan why she thought it was appropriate to interfere in the positions of medical organizations.  Further, does the lack of any evidence of harm to a woman’s health because of the unavailability of partial-birth abortion for the past three years affect her perspective on the issue?  Does Kagan still believe that partial-birth abortion is necessary to protect a woman’s health?  If so, what is her factual basis to support this?

Kagan’s Answer on Roe Reveals Her Pro-Abortion Ideology by Mary Harned

The fact that Kagan believes that the Roe/Doe health exception still applies unchanged to all laws pertaining to abortion indicates that she has not changed from the passionate ideologue who advocated against meaningful regulations of abortion while working for President Clinton. During her time in the White House, Kagan argued for a health exception that went further than the one required in Doe. She argued that a woman should have access to a partial-birth abortion if her doctor felt it was the best procedure for her health – regardless of whether she actually needed an abortion at all! This expansive reading of a “health exception” would actually take abortion jurisprudence farther than ever before, and drastically undermine the ability of state and federal legislators to pass meaningful regulations of abortion. In light of the growing body of evidence that abortion is actually dangerous to women, and the advancement of technology that helps unborn children survive earlier outside of the womb, this is deeply troubling.

A ‘Whole Life’ of Support for Abortion & Agenda-Driven Judging by Mary Harned

Kagan told Sen. Kohl this morning, “I think you can look to my whole life for indications of what kind of judge or justice I would be.”

Let’s take her at her word. Looking at her whole life, Elena Kagan has —

  • Consistently supported pro-abortion politicians
  • Claimed that a ban on partial-birth abortion was unconstitutional
  • Advised President Clinton to gut the partial-birth abortion ban, and instead to support a compromise that she believed was unconstitutional
  • Clerked for Justice Thurgood Marshall, who believes abortion is a fundamental right
  • Advocated cloning human beings for research

Was Kagan ‘Just Doing Her Job’ on Citizens United Case? by Mary Harned

However, In practice, campaign finance reform laws have negatively impacted non-profit policy groups more dramatically than the vilified “big corporation.”  Many non-profits (e.g. pro-life organizations) do not have the resources to meet the requirements of the Federal Election Campaign Act (FECA) and McCain-Feingold campaign finance reform laws, and therefore are limited in their ability to engage in political speech.  This is detrimental to society because these organizations often provide the most effective way for member-citizens to vocalize their political views at critical times.

Kagan Doesn’t Know What Is a ‘Legal Progressive’? by Mary Harned

Senate Judiciary Committee Ranking Member Jeff Sessions notes that Biden’s chief of staff, who was chief counsel to the Senate Judiciary Committee, said she was “a clear legal progressive.” Does she agree?

Kagan tries to dodge the question–claims she “honestly” doesn’t know what that label means. Sessions says that, having looked at her record, he would classify her as a “legal progressive.”

Reaction to Day Two of Elena Kagan’s Confirmation Hearing by Dr. Charmaine Yoest

During today’s hearings, Kagan said “judging requires judgment.”  Kagan’s judgment—shaped by her associations and worldview—is adamantly pro-abortion and outside the mainstream.  As Senator Sessions said today, Elena Kagan is “unconnected from reality.”  Americans discovered today that Elena Kagan has a track record as a political operative who would be an agenda-driven justice and would oppose even the most widely-accepted, commonplace restrictions on abortion.

The Dangers of ‘Special Solicitude’ in the Courts by Mary Harned

While that may be admirable in the abstract, the reality of Justice Marshall’s decisions concerning abortion bears further scrutiny. In his dissents in abortion-related cases, Justice Marshall demonstrated that his “special solicitude for the despised and disadvantaged” actually meant government funding for abortion for Medicaid-eligible women. His view was that children born into poverty faced such difficult lives that it would have been better if their mothers had access to subsidized abortions. This demonstrates the problem with judges’ having “special solicitude” for certain individuals. Their definition of “special solicitude” may be deeply offensive to many and bring great injustices against other humans–in this case, unborn babies.

Reaction to Day One of Elena Kagan’s Confirmation Hearings by Dr. Charmaine Yoest

This week’s confirmation hearings will reveal a great deal regarding whether Kagan is more concerned about politics and policy and views the Constitution as a dated impediment, or whether she would remain faithful to it.  In particular, it will shed light on whether she will be able to impartially interpret the law as a judge when she has actively advocated for the pro-abortion lobby’s agenda.
Americans should watch Kagan’s hearing with attentiveness and expect nothing less than complete candor in her responses.  If she cannot provide adequate answers, senators should vote to reject her nomination.