Huffpost Politics
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Jodi Jacobson Headshot

Kagan's Late Abortion Ban Strategy Was Rejected by Constitutional Scholar, Key Senators, Advocates

Posted: Updated:

A correction to this article was made at 4:40 pm Thursday, May 13th, 2010.  The earlier version incorrectly attributed comments  in the Congressional Record from 1997 on to Senator Barbara Boxer (D-CA) that were made by Senator Dianne Feinstein (D-CA).

By now it is clear that the general strategy of the White House and Democratic Party leadership on the nomination of Solicitor General Elena Kagan to the Supreme Court is to praise her effusively while saying little if anything at all about her positions. And since she has effectively never stated her opinions on much of anything save a few legal articles (which most scholars point to as being primarily on procedural issues), there is little we can know about her views on critical issues.

All we are told is that she is a an extraordinarily accomplished "pragmatist."

This would be despite the fact that as Senator, Barack Obama called for a different standard for President Bush's nominee, Harriet Miers:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

He, rightly, wanted to know more about her views.

In fact, one of the most eloquent statements regarding the importance of knowing more about a Supreme Court nominee comes from Kagan herself when, in a 1994 article, she called on the Senate to embrace "the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments."

And we, rightly, deserve to know more about Kagan's views. We deserve to know, for example, her position on Roe v Wade, and whether she sees the issue of a woman's right to choose as settled law, especially at a point in time when there are so many anti-choice missiles being fired off by states like Nebraska and Oklahoma aimed directly for the Supreme Court.

But we are left reading tea leaves, or rather old memos from her stint in the Clinton White House. And these don't necessarily provide comfort. Does she, as some of the memos suggest, feel it is ok to whittle away those rights through increasingly narrow circumstances in which women can choose to terminate a pregnancy? 

It turns out that Kagan and her colleague Bruce Reed both pushed Clinton to support an amendment by Senator Tom Daschle (D-DS) to the so-called partial birth abortion ban that at least one esteemed legal scholar--Laurence Tribe--considered unconstitutional, and which a number of Democratic Senators and the advocacy community opposed. They also strongly pressed for the Daschle amendment over one introduced by Senator Dianne Feinstein (D-CA), although Feinstein's was at least marginally less onerous.

As noted in a 1998 Guttmacher Institute analysis of abortion bans, in Roe v. Wade, "the Supreme Court established a right to an abortion subject to certain limitations, determining that after the point of fetal viability, states may impose restrictions on or even prohibit abortion altogether except in instances necessary to preserve a woman's life or health."

The Court, even before Roe, held that the term "health" must be broadly defined to reflect a state of both psychological and physical well-being, and that a determination of what constitutes a valid health reason for an abortion, as well as whether a fetus has attained the point of viability, must be left to an attending physician.

The so-called partial birth abortion act of 1997 was part of a longer-term strategy by anti-choice groups to change the parameters of abortion care, limit women's rights to abortion even in cases where their health was in danger, or where the fetus was shown to have anomalies incompatible with life.  In short, to legislate away medical decisions by doctors and women faced with extraordinary circumstances, in part by focusing on late abortions, but in reality passing a law that was vague, sweeping, and would affect procedures used at other stages of pregnancy.

President Clinton had already bought into the whole "late-abortion" ban politics. For example, rather than addressing the fallacy of a need for a "late abortion ban" head on, Clinton, according to a White House memo by Reed and Kagan, had:

spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined, health exception--as you said in a letter to the Cardinals, not a health exception that "could be stretched to cover most anything," but a health exception that "takes effect only where a woman faces real serious adverse health consequences."

The memo containing this passage was sent to the President the same day--May 13th, 1997--that the Senate was to take up the bill, HR 1122, already passed by the House.

Both the Feinstein and the Daschle amendments prohibit post-viability abortions generally, they wrote.

They thus differ in two crucial ways from HR 1122: (1) they apply to all procedures, including but not limited to the "partial birth" procedure, and (2) they apply only to abortions performed after the fetus has become viable.

Both amendments impose civil, rather than criminal, penalties. Feinstein's would fine the physician up to $10,000 for a violation. Daschle's would result in a fine of up to $100,000, or suspension or revocation of the doctor's medical license (and in the case of a second or subsequent offense, $250,000 or revocation of the license).

Most critically, both amendments contain a health exception, though of different kinds, they continued:

The Feinstein legislation would exempt an abortion if, "in the medical judgment of the attending physician, the abortion is necessary to ... avert serious adverse health consequences to the woman." This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician "certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health." "Grievous injury" is then defined as "a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition."

The Daschle amendment, therefore, would have removed from physicians, women and their families the ability to terminate a pregnancy in which there were serious fetal anomalies leading to death of the fetus, even in utero, potentially forcing a woman to carry a dead or severely malformed fetus to term. It also would have removed mental health exceptions, implying as does the reference to the Cardinals above, that women use abortion for "superficial reasons" that need to be monitored by....men (and, shockingly, to placate the Catholic Church).

Let's put aside for the moment the real-life implications of such language for women and their doctors faced, in real time, with complications of pregnancy or fetal anomalies, or dead fetuses in utero. Let's put aside the (intentional) outcome that fines and revocations of licenses for legal, necessary, life-saving procedures have on reducing access to abortion care in this country. Let's also put aside the ways in which the term "health exception" is manipulated politically so that many threats to health are in fact ignored or that these kinds of false standards, codified in legislation, are used constantly by the far right to badger, question, undermine and even to justify murdering doctors who they perceive to be doing something outside the lines as they, not doctors and women define them.

Let's just focus on the strategy itself and for whom it was "pragmatic."  Certainly not for women facing crisis pregnancies, or for the doctors that cared for them.

But Kagan and Reed argued strongly for supporting the Daschle amendment, even though:

The choice groups (somewhat reluctantly) support the Feinstein language, but oppose the Daschle proposal. They argue that the stringency of Daschle's health exception -- including its limitation to cases of physical harm -- undermines the comprehensive protections announced in Roe regarding the health of the woman. The Office of Legal Counsel of the Justice Department similarly believes that both the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving women's health. (OLC thinks, however, that a court might be able to interpret the Feinstein amendment so narrowly as to avoid this problem.)

Several Senators also opposed the Daschle amendment.  In the debate on this bill at the time, Feinstein said:

I made the argument that I believe both H.R. 1122 as well as the Daschle substitute are unconstitutional.

With respect to the Daschle amendment, my reading of it indicates that, even if a severely, horribly deformed fetus were capable of only 1 hour of life outside the womb, a woman would be forced to carry that pregnancy to full term and deliver that child, without consideration of what may be severely debilitating consequences to her health.

For me that is not enlightened public policy, and I cannot support it.

Constitutional scholar Laurence Tribe also argued that the Daschle amendment was unconstitutional.  In a letter to Senator Dianne Feinstein at the time, placed in the Congressional Record, he wrote:

Both Roe and Casey unambiguously hold that a state may not prohibit any post-viability abortion that is `necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.' The Daschle language would forbid abortion of a viable fetus unless the physician certifies that continuing the pregnancy `would threaten the mother's life or risk grievous injury to her physical health,' and goes on to explain that even this narrowed health exception--which impermissibly excludes medically diagnosable risks, however severe, to the woman's mental health and which requires the physician to certify that the physical injury to the woman would be `grievous'--is inapplicable unless the `severely debilitating disease or impairment' that the physician believes requires termination of pregnancy is `specifically caused by the pregnancy.' Thus, although a pregnancy may be terminated without violating Daschle if its continuation would cause what the proposed statute calls `an inability to provide necessary treatment for a life-threatening condition,' a pregnancy may not be terminated without violating Daschle if its continuation would cause only an inability to provide necessary treatment for a severely debilitating but not life-threatening condition.

The upshot, concluded Tribe, "is that the Daschle language would criminalize at least three categories of post-viability abortions that, under Roe and Casey, may not be prohibited."

In conclusion, he wrote:

For these reasons, I cannot understand how anyone could doubt the inconsistency of the Daschle language with the requirements of the Constitution as construed in Roe and Casey. I can readily understand the political temptation of some to sign onto a measure that seems less drastic and dangerous from some perspectives than Santorum, and this letter is not intended to address the political pros and cons of various positions. I think it would be a tragedy, however, for Senators, or the White House, to proceed on the basis of demonstrably indefensible readings of the Daschle language or of Roe v. Wade or both.

So rather than passing the original bill and forcing a vote on a veto override, putting the onus on the far right, educating the public and potentially taking the anti-choice bill to court, the Clinton White House, advised by Kagan and Reed, played politics. They pushed for a strategy that according to analyses by leading scholars was in itself unconstitutional.

What does this tell us? Possibly not much. Possibly a great deal. It is critical to know where Kagan, as a judge, would stand on these issues. Does she personally believe in the right to choose whether and when to bear a child? Or is she someone who, like Obama, is so committed to finding the "middle road" no matter what, that she will act more as mediator with far right conservatives on the court rather than principled advocate for women's rights?  [Full disclosure: I worked hard as a volunteer and as a donor to elect Obama, but have been deeply disappointed by the lack of fierce urgency of anything, much less "now."]

But the answers aren't likely to be forthcoming. Asked by Politico what gave her assurances that Kagan would uphold Roe v. Wade, Senator Barbara Boxer (D-CA) replied:

"I have no reason to think anything else except that she would be a very strong supporter of privacy rights because everyone she worked for held that view."

Did they?  And do they?