Kagan’s Late-Term Abortion Memo: Pure Obamaism?

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


As a top White House adviser to Bill Clinton in 1997, Elena Kagan pressed the former president to support a ban on a late-term abortion procedure as a political compromise. Though the memo that Kagan co-authored with her boss, Bruce Reed, is more indicative of a political strategy than a legal argument, the revelation is worrying some abortion-rights activists, particularly given Kagan’s thin paper trail on the issue. Nancy Keenan, president of NARAL, issued a cautious statement on Kagan’s nomination. “[We] look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision,” Keenan said, adding that the group “will work to ensure Americans receive clear answers” on the issue during her confirmation proceedings.

But if Kagan’s memo on late-term abortion speaks more to her political instincts than her legal reasoning, her strategy might have actually appealed to President Obama. Kagan, along with Rahm Emanuel and other top advisers, had urged Clinton to support a compromise bill in order to prevent a congressional override of a veto on a more extreme Republican proposal that banned the procedure without any health exceptions. Clinton decided to follow Kagan’s advice and support a ban on a late-term procedure called intact dilation and extraction that provided exceptions when the mother’s life or health were at risk.

The compromise that Kagan championed assumed the necessity of consensus building and realpolitik—a strategy that’s also guided Obama’s own legislative strategy, in no small part because of Emanuel’s imprint. The proposal would have “largely put an end to the decades-old trench warfare over abortion, marginalizing conservatives who favor a total ban,” writes Amy Sullivan, a former Senate staffer who worked on the compromise. Though there were some concerns about whether the alternative would be constitutional—Kagan’s memo cites the Justice Department’s own doubts about its viability—political pragmatists viewed the proposal as the lesser of two evils.

Ultimately, Clinton failed to win over the anti-abortion and abortion-rights advocates in time: Congress ended up passing the stricter version that had no such exceptions, which Clinton vetoed. Though the much-feared congressional override never came to pass, the passage of the more restrictive bill empowered anti-abortion advocates, who used the congressional fight to popularize the fight against “partial-birth ” abortions. They ultimately rode to victory under the Bush administration, when Congress passed the first federal ban on a specific abortion procedure. The 2003 Partial-Birth Abortion Act prohibited the same intact dilation and extraction procedure for late-term abortions, without containing adequate health exceptions—and was upheld by the Supreme Court in 2006.

Sullivan argues that the Democrats ultimately lost out for failing to endorse Clinton’s compromise. Many liberals and abortion rights advocates would vehemently disagree, arguing that signing onto such compromises would lead to more and more expansive abortion restrictions. Obama’s own preference for consensus-building and his compromises on measures like the public option have similarly infuriated the progressive left. Having cited Kagan’s “openness to a broad array of viewpoints” in his remarks yesterday, Obama might see Kagan’s strategic thinking on the issue as a boon, not a liability.

FOLLOW THE MONEY

Corporations and billionaires don’t fund journalism like ours that exists to shake things up. Instead, support from readers allows Mother Jones to call it like it is without fear, favor, or false equivalence.

And right now, a longtime friend of Mother Jones has pledged an incredibly generous gift to inspire—and double—giving from online readers. That's huge! Because you can see that our fall fundraising drive is well behind the $325,000 we need to raise. So if you agree that in-depth, fiercely independent journalism matters right now, please support our work and help us raise the money it takes to keep Mother Jones charging hard. Your gift, and all online donations up to $94,000 total, will be matched and go twice as far—but only until the November 9 deadline.

$400,000 to go: Please help us pick up the pace!

payment methods

FOLLOW THE MONEY

Corporations and billionaires don’t fund journalism like ours that exists to shake things up. Instead, support from readers allows Mother Jones to call it like it is without fear, favor, or false equivalence.

And right now, a longtime friend of Mother Jones has pledged an incredibly generous gift to inspire—and double—giving from online readers. That's huge! Because you can see that our fall fundraising drive is well behind the $325,000 we need to raise. So if you agree that in-depth, fiercely independent journalism matters right now, please support our work and help us raise the money it takes to keep Mother Jones charging hard. Your gift, and all online donations up $94,000 total, will be matched and go twice as far—but only until the November 9 deadline.

$400,000 to go: Please help us pick up the pace!

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate