WASHINGTON, November 15, 2011 ( – In a series of emails, former Solicitor General Elena Kagan and another Obama advisor celebrated the passage of the federal health care bill and jeered at the “magic” executive order against abortion funding that sealed the deal. The newly released documents cast new doubt that Kagan, now a Supreme Court Justice, would impartially judge the health bill now that a case challenging it has been accepted by the high court.

“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote in an email obtained by Judicial Watch and addressed to Larry Tribe, who served as “senior counselor for access to justice” in the Department of Justice (DOJ), the day Congress passed the health bill.

Tribe also celebrated the “amazing” fact that the Democrats had gained enough votes, a development that hinged solely upon the decision of a group of pro-life House Democrats led by Rep. Bart Stupak to accept an eleventh-hour compromise after holding out for pro-life protections in the bill. The group accepted placing Hyde-like language restricting abortion in an executive order instead of the legislation itself.


“And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” Tribe said.

The Supreme Court, where Kagan replaced Justice John Paul Stevens in August 2010, announced on Monday that it would accept a lawsuit advanced by 26 state attorneys general against the bill. The plaintiffs argue that the law is unconstitutional for forcing citizens to purchase health insurance. An appeals court in August 2011 sided with the states.

Critics of the Kagan appointment noted at the time that Kagan was likely closely connected to the administration’s push to pass the a bill that would almost certainly land in the Supreme Court. As Solicitor General, Kagan played the role of the administration’s highest constitutional lawyer, and would have defended the bill on behalf of the administration in the high court.

During her confirmation hearings, Kagan claimed not to have expressed an opinion on the legal merits of the bill, a statement Republican lawmakers called hard to believe.

“Elena Kagan was in the unique role of being the nation’s top lawyer, and the American people have the right to know what role she played in defending this unconstitutional law,” Sen. Orrin Hatch of Utah said at the time.

Decried by pro-life leaders as the “biggest expansion of abortion since Roe v. Wade,” the health care bill has been shown to increase funding for abortion by various means since its passage. One recent example came in the form of a mandate by federal health officials this summer that will eventually force all insurance providers to fully cover as “preventive care” all birth control, including abortifacients such as Ella, a drug chemically similar to RU-486.