Elena Kagan's (Little-Known) Views On Abortion Concern Both Sides


Americans United for Life is calling Elena Kagan, whose confirmation hearings begin in a week, a “pro-abortion activist.” Unfortunately, actual abortion-rights activists are far from convinced.

The anti-choice organization recruited failed Supreme Court nominee Robert Bork for its press conference, just as the Center for Reproductive Rights issued its legal analysis of her record. They concluded that she is pro-choice in general, but that her commitment to reproductive rights is shallow:

Kagan’s record documents her agreement with the general proposition that the Constitution affords a right to abortion. Her positions on the specific contours of that substantive right are less discernable. Indeed, some of her writings raise questions about the depth of her consideration of the significance of reproductive rights to women’s health, lives, and equality. That said, only speculative conclusions can be drawn from the record given the limited, and at times political, purposes for which the memos at issue were written, and the length of time since she authored them. Accordingly, it is critical that the Senate inquire into her current views on constitutional protections for abortion rights more deeply through the confirmation process.

Just about every conversation about Kagan trails off at the caveat that no one really knows anyway, because that was a long time ago and she was writing in an institutional voice. Guess we’ll all just have to wing it!

All of this occurs in a political environment where the definition of “pro-choice” is being eroded, or deemed less important to woman over all. Politics Daily columnist Eleanor Clift
describes an email chain that is summed up by, “I believe there are other issues that are very important to women. So let’s say a woman happens to be not pro-choice, but is pro everything else. Why exclude her?” Well, if we’re talking about the exercise of political power, as opposed to say, having a friend who wouldn’t choose an abortion for herself, “excluding” a woman who would limit women’s choices over their own bodies isn’t just about maintaining an elite club. But never mind, because apparently it doesn’t matter that much anyway:

Twenty-five years later, attitudes about abortion are a lot more nuanced. Just about every woman has seen her own or someone else’s sonogram, and it’s not so easy to insist that no laws need apply. Younger women have a more complex view of abortion, and they don’t view the issue as passionately as their mothers.

Who exactly is arguing that “no laws need apply?” It must be those lawless abortion-on-demand bandits. Clift implies that Emily’s List, under new director Stephanie Schriock, is becoming more “flexible” about the abortion-rights positions of the candidates it supports, though she declines to offer any direct evidence of this from her interview with Schriock:

It’s the definition of pro-choice that is evolving under Schriock’s leadership, and it apparently will be a lot more flexible than was the case when Malcolm was at the helm, reflecting the changing times and the scientific advances that have clouded the issue. The Emily’s List candidate questionnaire is not a lengthy document that asks a candidate to pledge support to very precise and extreme positions. It’s about commitment to Roe v. Wade, and for most Democrats, men and women, that’s an easy threshold to meet.

She also declines to specify what this flexibility entails — waiting periods? parental consent laws? bans on late term procedures? — nor what “scientific advances” she’s referring to. In a followup post on Politics Daily, Schriock addressed some of these concerns and re-affirmed Emily’s List’s commitment to abortion rights, saying,

Today – as has always been the case – we stand firm in our belief that the government has no role in this most personal of decisions. That is what EMILY’s List and our extraordinary women elected officials have always fought for – and always will.

This is somewhat reassuring, but it’s still unclear what some of the terms in Clift’s original piece really mean. And as we see from Kagan, maybe the “changing times” mean having a conversation while saying as little as possible.

CRR Legal Analysis Of Kagan’s Abortion Rights Record [CRR]
Kagan Abortion Views Criticized By Left And Right [CBSNews]
EMILY’s List: Confronting The Growing Ambivalence About Abortion [Politics Daily]
EMILY’s List President: Our Stand On Abortion Rights Is Unwavering [Politics Daily]

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