Bench Memos

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Kagan on Partial-Birth Abortion


No one understands the history of the efforts to enact a federal ban on partial-birth abortion better than the folks at the National Right to Life Committee.  So NRLC’s letter opposing Elena Kagan’s confirmation deserves special attention for its interesting description of Kagan’s role, as a Clinton White House staffer, in preventing enactment of the Partial-Birth Abortion Ban Act (underlining added):

The White House documents reveal Ms. Kagan to have been a key strategist – perhaps, indeed, the lead strategist within the White House – in the successful effort to prevent enactment of the Partial-Birth Abortion Ban Act during the Clinton Administration. The picture that emerges of Ms. Kagan is not that of a staffer who presented the President with objective information and disinterested analysis, but rather, a staffer who sometimes presented selective and tendentious information, and who employed a variety of legal and political arguments, to achieve her overriding goal of defeating the legislation.

Early on (in January, 1996, if not earlier), it appears that Ms. Kagan was instrumental in providing President Clinton gravely distorted assertions regarding the frequency of partial-birth abortion and the reasons for which it was typically performed, although more accurate information had been published by a congressional committee and was readily available. In June, 1996, she described a private briefing from the American College of Obstetricians and Gynecologists (ACOG) in which she learned that “[i]n the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health . . . . there just aren’t many [circumstances] where use of the partial-birth abortion is the least risky, let alone the ‘necessary,’ approach.” Although Ms. Kagan herself described this briefing as “a revelation,” she also advised against immediately conveying its substance to the President. Moreover, in December 1996, when Ms. Kagan obtained an ACOG draft for a proposed public statement that reported that “a select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure . . . would be the only option to save the life or preserve the health of the woman,” Ms. Kagan wrote that such a public statement “of course, would be disaster.” It appears that Ms. Kagan was dismayed not by the realities of partial-birth abortion, but by the prospect that public awareness of those realities would harm the White House efforts to prevent enactment of the ban. In addition, it appears that Ms. Kagan herself was probably the originator of diluting language that appeared in the final public statement approved and released by the ACOG Executive Board in January, 1997 – ostensibly as the judgment of top medical authorities.

Initially, in February 1996, President Clinton favored banning partial-birth abortions, both before and after “viability,” except in any case in which, in the abortionist’s judgment, the pregnancy itself threatened the life of the mother or serious adverse health consequences. But Ms. Kagan objected that this was unconstitutional and that pro-abortion advocacy groups “will go crazy.” She argued for allowing use of the method when any “serious” health benefit was asserted even if the woman and her unborn baby were entirely healthy, and prevailed. The following year (in May, 1997), Ms. Kagan pushed further. Employing a mixture of legal, policy, and political arguments, she ultimately won Mr. Clinton’s endorsement for a substitute bill proposed by Senator Daschle, which applied no restrictions whatever on partial-birth abortion prior to “viability” (for example, in the fifth and sixth months, which in fact is when the greatest number of partial-birth abortions are performed), and which applied only a loose, loophole-ridden standard on abortionists even in the seventh month and later. Ms. Kagan explicitly recognized, in a memorandum dated December 14, 1996, that Daschle’s purpose was to “provide cover for pro-choice Senators (who can be expected to support it) . . . .” In a memo dated May 13, 1997, Ms. Kagan advised President Clinton to “endorse the Daschle amendment in order to sustain your credibility on HR 1122 [the Partial-Birth Abortion Ban Act] and prevent Congress from overriding your veto.”…

The bottom line is that Ms. Kagan was instrumental in persuading President Clinton to endorse in 1997 an alternative proposal (the Daschle substitute) that was more protective of the practice of partial-birth abortion than the position which the President had embraced in 1996, but which also was sufficiently artful in its language to provide political “cover” for pro-abortion senators, and thereby to prevent the real ban from becoming law.


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