Current solicitor general of the United States Elena Kagan was nominated by President Barack Obama on May 10, 2010, to fill the vacancy on the Supreme Court resulting from the impending retirement of Justice John Paul Stevens, who will leave the court at the end of the 2009–10 term. Prior to her time as solicitor general, Kagan served as a policy adviser in the Clinton White House involved in setting the domestic policy agenda and crafting the political strategy for moving the president’s agenda forward. During her tenure in the Office of Domestic Policy, Kagan’s role was to reflect the centrist nature of the president she served. The few memos drafted by Kagan during this time that have been released so far demonstrate her shrewd political calculations regarding, among other hot-button topics, the issue of late-term abortion. However, Kagan’s personal views on abortion are unknown, as she has served no time as a justice and has no documented public writings or statements that offer glimpses of her opinion of the issue. Therefore, the media and pro- and anti-choice groups have scoured the few memos available for clues to her approach.
In one memo from May 13, 1997, Kagan and her boss, Bruce Reed, encouraged President Bill Clinton to support a bill sponsored by former Senate Majority Leader Tom Daschle (D-SD) that would have prohibited late-term abortions if the fetus was viable.[i] The bill was meant to be a Democratic alternative to a Republican bill, the Partial Birth Abortion Act, that was making its way through the Senate at the time and contained an exception for the life—but not the health—of the mother. Daschle’s bill would have banned the procedure as well, but would have instituted broader exceptions: “It exempts an abortion when the physician ‘certified that continuation of the pregnancy would risk grievous injury to [the mother’s] physical health.’”[ii]
Though pro-choice and women’s rights groups vehemently opposed both bills, and there were doubts about its constitutionality, Kagan and Reed supported the Daschle bill for political reasons. According to the May 1997 memo, they predicted that the legislation would fail but also thought it might keep certain right-leaning Democratic senators from joining in the attempt to override President Clinton’s veto of the Republican alternative. It was thought the Daschle alternative would give these senators the opportunity to demonstrate to their constituencies their opposition to the procedure by voting for a ban, and they would therefore not feel obliged to participate in Republican attempts to override the veto, which had a strong possibility of success. As they wrote in the memo, “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.”[iii] In the end, their calculations paid off. The Daschle bill was defeated, the Republican bill passed, and Clinton vetoed it because its health exceptions were too narrow.[iv] The attempt to override the veto was unsuccessful, falling short by only three votes in the Senate.
Another memo from 1998 also showcased Kagan’s ability to be politically savvy and meet the needs of her centrist boss. She advocated for “strict limits on abortion coverage for disabled women on Medicare, including a ban on paying when a woman’s health was at risk.”[v] Once again, Kagan took a position that was unpopular with her base for political reasons; faced with a Republican majority in Congress, the Clinton administration had to be very middle-of-the-road in order to “avoid a high-profile legislative battle.”[vi]
Shortly after news of the memos began to spread, Obama administration officials addressed the issue, arguing that “judges confront issues differently than staff attorneys for an administration,” and claiming that because of this, her writings as a White House staffer are unrelated to her opinions in the role of Supreme Court justice.[vii]
“SIECUS supports a woman’s right to choose,” comments Jen Heitel Yakush, director of public policy at the Sexuality Information and Education Council of the United States. “We hope that, if appointed to the Supreme Court, Elena Kagan will respect the standard set by Roe v. Wade and the constitutional right to privacy. We call on the senate to give Solicitor General Kagan a fair hearing and look forward to learning more about her views on the right to privacy and Supreme Court decisions impacting a woman’s right to choose abortion.”
[i] Jill Zeman Bleed, “Kagan in ’97 Urged Clinton to Ban Late Abortions,” Washington Post, 10 May 2010, accessed 17 May 2010, <http://www.washingtonpost.com/wp-dyn/content/article/2010/05/10/AR2010051003772.html>.
[ii] Ariane de Vogue, “Elena Kagan Abortion Memo Offers New Look at Nominee,” ABC News, 11 May 2010, accessed 17 May 2010, <http://abcnews.go.com/Politics/Supreme_Court/elena-kagan-abortion-memo-supreme-court-nominee/story?id=10618601>.
[iii] Peter Baker, “As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban,” New York Times, 11 May 2010, accessed 17 May 2010, <http://www.nytimes.com/2010/05/12/us/politics/12abort.html>.
[iv] Bleed, “Kagan in ’97 Urged Clinton to Ban Late Abortions.”
[v] Laura Meckler, “Memos to Clinton Hewed to Center,” Wall Street Journal, 13 May 2010, accessed 17 May 2010, <http://professional.wsj.com/article/SB20001424052748704247904575240760413295280.html?mg=reno-wsj#printMode>.
[vii] Bleed, “Kagan in ’97 Urged Clinton to Ban Late Abortions.”