During her time on President Clinton's Domestic Policy Council, Elena Kagan advised against legislation that would have banned late-term abortions with few exceptions, arguing that the president should tailor the language to protect women from serious health consequences.
Now a nominee for the Supreme Court, Kagan affirmed on Tuesday that as a justice she would rule as unconstitutional laws that restrict abortion to the point that a women's health is placed in danger.
"I do think that the continuing holding of Roe and Doe v. Bolton, is that women's life and women's health have to be protected in abortion regulation," Kagan said. "Now, the Gonzalez case [Gonzales v Carhart (2003)] which said that with respect to a particular procedure, that the statute congress passed, which passed a statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved."
"But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman's life and that the woman's health must be protected in any abortion regulation," Kagan went on.
This is not a strict admission that Kagan finds abortion to be a legal right, per se. But is a clear indication that she sees various attempts to restrict the procedure as brushing up against, if not fully crossing, the line of the law. Supreme Court nominees generally try to avoid answering legal questions that could come in front of them should they be confirmed. But this was a moment of candor that, at the very least, was a refreshing addition to the largely perfunctory and scripted confirmation hearings.
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