Editorial: Solicitor General Elena Kagan Should not Serve on US Supreme Court

Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade


Deacon Keith Fournier

  Catholic Online

WASHINGTON, DC (Catholic Online) - While she smiled, nodded, and answered the softball questions lobbed at her with an alarming vacuity, the nominee of the Obama Administration to replace the retired Justice John Paul Stephens, Solicitor General Elena Kagan, was exposed by hard-hitting research done by those seeking to protect our youngest neighbors, children in the womb, from the evil of abortion. Her radical opposition to the first Human Right, the Right to Life, is clear in her rhetoric and record - and has now been uncovered in her past actions in governmental service. 

It has now been revealed that she played a key role in rewriting the "American College of Obstetricians and Gynecologists" (ACOG) statement on Partial Birth Abortion, precisely to defend this gruesome procedure against a ban during the Clinton Administration. The stories exposing her  role in this matter while deputy assistant to President Clinton for domestic policy reveal her view of this gruesome procedure, her commitment to a radical anti-Right to Life agenda, and her lack of a clear understanding of legal ethics. The orchestrated theatre being played out before the television cameras did not.

Elena Kagan did not like the original 1996 statement of ACOG wherein they claimed they "could identify no circumstances under which this procedure (Partial Birth Abortion). . . would be the only option to save the life or preserve the health of the woman."  So, she changed it. The blogosphere is filled with the details. The best summaries can be found in the reporting of one of my heroes, Jill Stanek, Pro-Life Nurse, who shares the details on her blog. A recent news story, "American College of Obstetricians and Gynecologists Statement on Partial-Birth Abortion Included 'Suggested' Text Found in Kagan's White House Files", written by  Jane McGrath of Cybercast News Service, sets forth the entire sordid affair in lengthy factual detail.

The National Right to Life Committee may have been the first to uncover the Nominees participation in this whole disturbing matter. They sent a well written letter on June 23, 2010 to the members of the United States Senate urging them to reject this nominee.  The following lengthy excerpt from that letter sets forth the facts. We ask our readers around the globe to read it carefully:


"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."

"Some recent commentators have viewed these documents as showing Ms. Kagan in a "centrist" role, since even the Daschle Amendment was criticized by some pro-abortion advocacy groups and by some Justice Department officials, who regarded it as too restrictive. We disagree with this reading. The documents contain clear evidence that Ms. Kagan was in sympathy with the Justice Department's perspective regarding the Supreme Court precedents (see, for example, Ms. Kagan's memorandum to Walter Dellinger dated February 24, 1996), but Ms. Kagan had no intention of allowing constitutional technicalities to get in the way of what she viewed as a workable strategy to defeat the bill and keep partial-birth abortion unrestricted.

"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. Although the Partial-Birth Abortion Ban Act was supported, in the 105th Congress, by more than two-thirds of the House of Representatives and by 64 members of the U.S. Senate, the effort to override President Clinton's second veto fell three votes short in the Senate in 1998.

"Thus, the Kagan-backed strategy did, in fact, prevent enactment of the Partial-Birth Abortion Ban Act during the Clinton Administration. Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade."


What happened in the Senate during these confirmation hearings was political theatre. The approval of this nominee is a foregone conclusion. The votes are there. However, it once again proves the importance of how we vote. After all, the record of the President who nominated Solicitor General Kagan was eminently clear on this gruesome procedure called Partial Birth Abortion. In fact, he would not even support the legislative efforts to protect infants who survived abortion when he served in the Illinois State Senate. 

Without recognizing the foundational human right, the Right to Life, every other human right is placed at risk because they are all derivative rights, requiring living human persons. Human Rights belong to Human Persons as an endowment from the Source of all Rights, God. Human Rights are not conferred by Government and they cannot be taken away.   Elena Kagan should not serve on the United States Supreme Court.