Obama’s SC choice raises serious concerns

The pro-life community should be wary of Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court say pro-life groups, as Kagan’s past record indicates that she supports abortion and perhaps same-sex marriage.

In 1997, after the Republican Congress passed a ban on partial birth abortion and before Clinton vetoed the measure, Kagan, the associate White House counsel, recommended that Clinton endorse the Daschle amendment “to prevent Congress from overriding (Clinton’s) veto.” The exceptions hidden in the amendment meant that any abortion could be carried out in America. Nevertheless, Kagan wrote in a memo that the ban would be unconstitutional: “(B)oth the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving women’s health.” Americans United for Life notes: “If Kagan believes that the Daschle amendment, whose exceptions would have allowed any abortion, was unconstitutional, she would certainly be hostile to any true pro-life legislation.

Kagan also treated the abortion with political gloves. While she was Clinton’s counsel, urged Clinton to avoid expanding Medicare services to abortions for health reasons because it would trigger strong pro-life opposition.

Moreover, Kagan criticized the Supreme Court’s Rust v. Sullivan decision that withheld Title X family planning funding from organizations that used abortion as a means of family planning. She condemned it as “viewpoint discrimination” and, in an article, wrote that “a refusal to fund any speech relating to abortion would have been constitutionally preferable to the funding scheme that the regulations established.”

From 1987-1988, Kagan served as a clerk under Supreme Court Justice Thurgood Marshall, a firm supporter of abortion rights. Kagan admired Marshall, whose vision of the law she called “a thing of glory.” According to CBS News’ Chief Legal Correspondent Jan Crawford, the memos that Kagan wrote during this time “show a more personal approach that suggests she shared many of Marshall’s opinions.” In 1987, she wrote to Marshall that religious organizations should be denied funding under the Adolescent Family Life Act (including pregnancy testing, adoption counselling, education, child care, etc.) because the projects are “so close to the central concerns of religion.” Nevertheless, the Supreme Court rejected this position in Bowen v. Kendrick. When Marshall was asked to review a case in 1988 about prisoners being given taxpayer-funded abortions, Kagan recommended declining the case because it “is likely to become the vehicle that this Court uses to create some very bad law on abortion.” 

Kagan’s support for abortion rights seemed to extend back to1980, when she was undergraduate at Princeton University. One summer, she worked 14 hours a day, six days a week for pro-abortion Senate candidate, Democrat Elizabeth Holtzman. After Holtzman’s loss, Kagan wrote an article in the student newspaper, describing her deep disappointment and antipathy towards the opposing side: “I found it hard to conceive of the victories of these anonymous but Moral Majority-backed opponents…these avengers of “innocent life” and the B-1 Bomber”

Kagan may also be a supporter of same-sex marriage. Although she denied that there was a “federal constitutional right” to same-sex marriage in her written statement for confirmation as Solicitor General, when asked to clarify her position, she wrote in a 2009 letter to Senator Arlen Specter, “Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives.  By this measure…there is no federal constitutional right to same-sex marriage.” According to Ed Whelan of the National Review Online, “Kagan’s statement seemed designed to fool the reader into thinking that Kagan was expressing her view that the Constitution does not confer a right to same-sex marriage.”

Furthermore, during her tenure as Solicitor General Kagan did not seek review of a Ninth Circuit Court of Appeals decision that threatened America’s Don’t Ask Don’t Tell policy. Kagan also tried, as Dean of Harvard Law School, to ban military recruiting on campus because of it’s Don’t Ask Don’t Tell policy.

As well, under Kagan, the Department of Justice sent out a reply brief in response to a challenge to the Defence of Marriage Act which, according to Whelan, “gratuitously abandoned strong grounds for defending (it).”

Kagan’s first case as Solicitor General under the Obama administration was rejected by the Supreme Court. Kagan wanted to bar corporate independent expenditures for electioneering communication, which would have hindered corporations, including pro-life groups, from using funds to contribute towards means of communication that espouse a political message.

Opponents of Kagan fear that she could, as Supreme Court Justice, use an “anti-abortion motive” analysis to strike down state abortion legislation, as Justice Harry Blackmun did in 1986 to invalidate a Pennsylvania law requiring women seeking abortions to be provided with specific information about the procedure. Others fear Kagan will interpret the constitution in order to make her own values law. A reason for suspicion is Kagan’s admiration for her “judicial hero”, the former justice of the Israel Supreme Court Aharon Barak. Barak was criticized for using personal (rather than objective) judgment and for concentrating too much power in the Supreme Court. Richard Posner, a judge on the US Court of Appeals for the Seventh Circuit, wrote for the (liberal-leaning) New Republic, “What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Kagan’s Supreme Court confirmation hearings will begin on June 28. It is clear that she has much for which to answer.

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