Papers Reveal Kagan's Thoughts on Partial-Birth Abortion, Religious Freedom
As a Clinton White House counsel, Solicitor General Elena Kagan said she felt it was best to let doctors decide when a "so-called partial-birth [abortion] procedure" was necessary.
But the now-Supreme Court nominee also sided with a landlady who refused to rent to unmarried couples based on her religious belief that sex outside of marriage was wrong.
"The plurality's reasoning seem to me quite outrageous," Kagan wrote in a 1996 memo regarding the California Supreme Court's then-recent ruling against the landlady.
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While the divided court found the actions of landlady Evelyn Smith to be in violation of a state law prohibiting housing discrimination, Kagan made clear that she would have ruled otherwise, arguing against the court's suggestion that a state law does not impose a substantial burden on religion because the complainant was free to move to another state.
"Taken seriously, this kind of reasoning could strip RFRA (the Religious Freedom Restoration Act) of any real meaning," she wrote.
"[G]iven the importance of this issue to the President and danger this decision poses to RFRA's guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the [U.S. Supreme] Court to review and reverse the decision," she added.
The 1996 memo part of a roughly 40,000-page trove of documents released by the William J. Clinton Presidential Library on Friday that shed more light on what kind of justice Kagan might be.
In another 1996 memo, Kagan weighed in on the debate over a measure passed by the Republican-led Congress the year before that would have banned a form of late-term abortion referred to by some as "partial-birth abortion."
In response to President Clinton's inquiry as to whether the "so-called partial birth procedure is ever necessary to save the life of a woman or avert serious harm to her health," Kagan referred to a statement by the American College of Obstetricians and Gynecologists (ACOG), whose opinion she said was "[p]erhaps the most reliable."
In the statement, ACOG acknowledged that the partial-birth procedure – medically known as "intact dilation and extraction" or "intact D&X" – was not the only option to save the life or preserve the health of a woman.
"An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision," the statement read, as quoted by Kagan.
Though Kagan also highlighted the "serious risks" involved in the procedure and arguments by a group of mostly pro-life physicians against the idea of the procedure being required in any situation, she ultimately concluded that it was best to leave the decision to the doctors.
"Allowing the medical community to make clearly medical decisions in this way is the only certain way to protect the health of women," she wrote.
Clinton's library has been working on getting out all 160,000 pages of documents related to Kagan's White House tenure as requested by the Senate Judiciary Committee, which is set to begin hearings on her nomination June 28.
With Friday's release, all the paper documents have been produced. Still to come are some 80,000 pages of e-mails - 11,000 pages of which were written by Kagan.
While some senators have expressed "deep" concern over rate at which Kagan's documents are being released, committee chairman Sen. Patrick Leahy has called the concerns "misguided and misplaced."
The Vermont Democrat said "there is more than enough time for senators and their staff to review" the records.
"The documents released today show Elena Kagan to be a brilliant lawyer, advising President Clinton on a variety of complex issues," added the senator Friday.
Presently, Kagan is the first high court nominee without experience as a judge since 1972.
If confirmed, the 50-year-old former Harvard Law School dean would be the third woman on the court as well as the youngest justice.
