The other day I noted that Elena Kagan was instrumental in getting President Clinton to veto a ban on partial-birth abortion, and thus in keeping the procedure legal for the better part of a decade. That record helped persuade the National Right to Life Committee to come out against her confirmation. The NRLC makes a number of points I have not seen any other commentators make.

1) Contrary to President Clinton’s remarks that Kagan “was unfailingly meticulous in trying to determine what the law actually is and what the facts actually were,” the record suggests that she actively sought to suppress knowledge of the facts about partial-birth abortion. Leave aside her initial claim to Clinton that the procedure was performed only 400-600 times a year, which may have been a sincerely held though false view. We know that she had been informed that in the “vast majority” of cases (her words) in which partial-birth abortions occurred, they were not necessary for health reasons. She did not see to it that Clinton was informed of this fact, and said it would “be a disaster” if the American College of Obstetricians and Gynecologists put out a statement to this effect.

2) Her position was, compared to that of the public or the Congress, extremely liberal. She favored allowing partial-birth abortion even when both the mother and child were entirely healthy.

3) She explicitly said that the purpose of the alternative bill on partial-birth abortion that she wanted Clinton to back was “to provide cover for pro-choice Senators.”

Does it matter that Kagan appears to be a committed pro-abortion extremist? Not if we had convincing evidence that her legal views are distinct from her policy views; otherwise yes.