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

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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.

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