Kagan Helped Craft Clinton Strategy for Blocking Partial-Birth Abortion Ban

Fred Lucas | May 16, 2010 | 10:54pm EDT
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Solicitor General Elena Kagan is applauded after President Obama introduces her as his Supreme Court nominee at the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)

(CNSNews.com) - Solicitor General Elena Kagan, President Barack Obama’s nominee to replace retiring Justice John Paul Stevens on the Supreme Court, helped craft President Bill Clinton’s political strategy for sustaining his veto of the partial-birth abortion ban in 1997. As a result of Clinton’s successful veto that year, the ban was not enacted until 2003, when it was signed by President George Bush.

Kagan, who was then deputy director of Clinton’s Domestic Policy Council co-wrote a May 13, 1997 memo with Bruce Reed, the director of the council, urging Clinton to support two Democratic amendments that were being offered as substitutes for the partial-birth abortion ban and that were designed to give cover to Democrats who wanted to vote against the ban but be on record as in some way opposing late-term abortions.
One amendment was sponsored by Sen. Tom Daschle (D-S.D.) and the other by Sen. Dianne Feinstein (D.-Calif.). Both amendments theoretically banned abortion after viability of the fetus, but both included exceptions for the health of the mother (Daschle's language being somewhat more strict)--meaning, in practical effect, that they were unlikely to actually ban abortions. Under the Supreme Court’s 1973 Doe v. Bolton decision, a companion case to Roe v. Wade, the Supreme Court ruled that a woman had a right to abortion after viability for health reasons and defined health to mean “all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient.”  

The memo from Kagan and Reed to Clinton included a draft letter they advised him to send to Daschle and Feinstein that day endorsing their amendments as a way to maintain “credibility” on the issue and hold support for sustaining his intended veto of the partial-birth abortion ban. They memo said that John Hilley, Clinton’s director of legislative affairs, and Rahm Emanuel, then a White House adviser, supported the strategy.
“We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals,” said Kagan and Reed’s memo. “John Hilley and Rahm strongly agree, believing that a letter of this kind will help prevent a veto override on this issue.”
The letter went on to detail the political lay of the land in the Senate regarding the proposed partial-birth ban and Daschle’s and Feinstein’s substitute amendments.
“John Hilley believes that a letter from you supporting the Daschle amendment is of crucial importance in sustaining a veto,” Kagan and Reed wrote. “You have 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 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 day after Kagan and Reed wrote Clinton their memo, Clinton’s White House Press Secretary Mike McCurry said that both the Daschle and Feinstein amendment met with Clinton’s approval. 

The Daschle amendment was soundly defeated, 36-64, as was the Feinstein amendment, 28-72. Ultimately, Daschle was among the Democrats who supported the partial-birth abortion ban, which passed the Senate by a vote of 64-36. Feinstein voted against the ban. President Clinton vetoed the bill for a second time that year, and the Senate did not override his veto.
Douglas Johnson, the legislative director for the National Right to Life Committee, noted that the Kagan-Reed memo was not aimed at enacting legislation prohibiting abortion, but at carrying out a political strategy to prevent the partial-birth abortion ban from becoming law.
“The memo was not a serious exercise in lawmaking but a political strategy to prevent the enactment of a ban on partial birth abortion,” Douglas Johnson told CNSNews.com. “It was not a debate between hardliners and moderates. It was a political strategy among hardliners.”
Though the Daschle amendment failed, it produced a short-term political gain for Clinton and pro-abortion advocates, according to Johnson. “It succeeded in creating enough confusion and political cover to prevent the partial-birth abortion ban from being enacted,” he said. “Kagan deserves some credit for unrestricted access to partial birth abortion for another six years.”
A ban on partial-birth abortion was eventually signed into law by President George W. Bush in 2003 and upheld as constitutional by the U.S. Supreme Court in 2007.
Partial-birth abortion is a procedure in which a fully developed fetus is brought out of the birth canal feet first, and then delivered all but the head. The doctor then takes a pair of scissors, inserts them in the baby’s skull, and then vacuums out the brains.
The White House memo referred to a study by the American Medical Association “stating that post viability abortions are almost never necessary to save a woman’s life or prevent serious harm to her health, given the alternative at this stage of delivering the fetus.” The AMA endorsed the ban later that month.
But the memo said the American College of Obstetricians and Gynecologists endorsed the Daschle amendment because it “provides a meaningful ban [on post-viability abortions] while assuring women’s health is protected.”
“Especially given ACOG’s endorsement of the Daschle amendment, it will be difficult for you to make the case that Daschle’s language does not adequately safeguard women’s health,” the Kagan and Reed memo said.
Sen. Feinstein’s press spokesman did not return a call from CNSNews.com on Friday.
Appearing on CNN’s Crossfire program on May 14, 1997, Sen. Rick Santorum (R-Pa.), sponsor of the partial-birth abortion ban, said, “The Daschle bill does not change current law whatsoever.”
The Associated Press quoted Santorum on May 15, 1997 saying the Daschle amendment was a “very broad loophole and will not restrict abortion.”
“If this bill [the Daschle proposal] were to become law there would not be one less abortion performed in this country and there would not be one abortion banned in this country,” said Santorum.
On May 15, 1997, Sen. Christopher “Kit” Bond (R-Mo.) scoffed at the Democratic amendments while speaking on the Senate floor.
“Make no mistake, these amendments were written by opponents of the ban,” Bond said. “The Daschle amendment contains a loophole big enough to drive a truck through. The Feinstein amendment contains a loophole big enough to drive a train through. In short, these amendments, which we will consider will do nothing to stop partial birth abortions or other forms of late-term abortions. They are simply nice-sounding statements, which will not change the law one bit.”
CNSNews.com contacted White House Deputy Press Secretary Bill Burton Friday for comment on the matter by phone and e-mail. Responding by e-mail, Burton said, “I’m not the contact for this.” He did not say who the contact was, and did not respond when asked by CNSNews.com who at the White House could comment on the matter.
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