Wednesday May 12, 2010

Memo Shows Kagan Helped Clinton-Era Defeat of Partial Birth Abortion Ban

By Peter J. Smith

WASHINGTON, D.C., May 11, 2010 ( – Contrary to media reports, a memo authored by Supreme Court nominee Elena Kagan for President Bill Clinton reveals that she actually helped the White House defeat a Congressional ban on partial-birth abortion in 1997, rather than upholding a pro-life position.

Both the Associated Press, which unearthed the memo from the Clinton Library archives, and Washington Post gave the impression that the May 13, 1997 memo authored by Kagan and Bruce Reed, President Bill Clinton’s Domestic Policy Advisor, urged Clinton to restrict late-term abortions. This has been taken as evidence that she is “moderate” on abortion.

But Douglas Johnson, legislative director of National Right to Life Committee, told (LSN) on Tuesday that Kagan’s memo is being “misunderstood by people who don’t understand the context,” and that, rather than proving Kagan is “moderate” on abortion, it may point towards the exact opposite.

Johnson explained that President Clinton was in a political bind at the time: he had recently vetoed the popular Partial Birth Abortion Ban Act, and a pro-life political groundswell was building to override the veto in Congress. While pro-life advocates had a two-thirds veto-proof majority in the House of Representatives to override Clinton’s veto, they were just a few Senators away from getting their two-thirds majority in the Senate.

In the memo Kagan and Reed wrote to the president, they advised Clinton to endorse a “compromise” partial birth abortion ban, known as the Daschle amendment. According to Johnson, the only reason Kagan suggested endorsing the measure was to avoid the veto override of the original ban.

Not only was this “compromise” completely unacceptable to pro-life groups, says Johnson, but it was designed simply to give senators who might otherwise have voted for the veto override of the original ban due to political pressure, a “phony” ban to vote for, thereby giving them the political cover they needed.

In fact, the text of Kagan’s memo itself reveals this motive: “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 [Partial-Birth Abortion Ban Act] and prevent Congress from overriding your veto,” wrote Kagan and Reed.

Daschle’s proposal would have allowed abortion after the sixth month when the physician “certifies that continuation of the pregnancy would … risk grievous injury to [the mother’s] physical health.” Grievous injury, Kagan and Reed noted in the memo, was defined as “a severely debilitating disease or impairment specifically caused by pregnancy, or an inability to provide necessary treatment for a life-threatening condition.”

Kagan and Reed admitted that while ideological “choice” groups would reject Daschle, the president’s support of that measure would have the best practical chance of defeating the momentum for the veto override.

Furthermore, there was little chance of Congress actually passing legislation along the lines of the Daschle “compromise,” since pro-life groups and NRLC denounced it as “all exception and no ban,” and filled with loopholes.

To illustrate the point, one congressional aide on Capitol Hill told the Washington Times at the time that an abortionist would literally have to indict himself to face any kind of sanction under Daschle’s proposal, because the abortionist alone was the one certifying that the abortion was necessary and lawful after the sixth month.

Johnson explained that Clinton did embrace Kagan and Reed’s advice, and endorsed the Daschle amendment. This tactic proved successful, as senators who did not vote to override the veto were still able to tell their constituents that they voted in favor of a partial birth abortion ban – a ban, says Johnson, that didn’t actually ban.

The Senate passed the Partial Birth Abortion Ban Act, 64-36, but fell three votes short of the two-thirds majority needed to override Clinton’s veto. And for that, Kagan deserves some of the credit – or blame – for defeating the pro-life measure.

“Elena Kagan played a role in [defeating the ban], because it was a successful tactic,” said Johnson.