Unfortunately, but unsurprisingly, President Obama’s pro-abortion Supreme Court nominee, Solicitor General Elena Kagan, was confirmed by the Senate last week Thursday. Kagan has a track record of personal and profession support for the putative right to abortion: She was once a member and financial contributor to the National Partnership for Women & Families, a pro-abortion legal group, and during her tenure in the Clinton administration, Kagan played a key role in keeping the federal Partial Birth Abortion Ban from becoming law.
NPWF supports “reproductive health and rights,” by which it means “abortion services.” Kagan has donated to NPWF in the past, and when nominated to the D.C. Court of Appeals, she listed her membership in NPWF in a questionnaire.
And during the intense debate over the federal partial-birth abortion ban in 1993, Kagan, a Clinton strategist with no medical expertise whatsoever, took it upon herself to revise ACOG’s position statement on the proposed law. Where the original ACOG statement simply stated the organization could find “no circumstances” in which partial-birth abortion “would be the only option” to save a woman’s life or health, Kagan revised it to insert a modified conclusion in much stronger language: “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…” The strong opposition conveyed by Kagan’s wording helped keep the ban from ever passing in the 1990s, and Kagan’s edits to the ACOG statement were quoted by the Supreme Court itself when it overturned state PBA bans across the country in 2000’s Stenberg v. Carhart decision.
That’s the bad news. The good news is, it could have been worse. Kagan is only replacing hard-core pro-abort Justice Stevens, who in his opinions strongly and even derisively opposed giving legal protection to unborn children (see his dissents in Planned Parenthood v. Casey and Stenberg v. Carhart.)
In fact, h/t to Jill Stanek for this excellent piece by Curt Levey, on the silver lining on the clouds of Kagan’s confirmation. Kagan was opposed by more votes than any pro-abortion nominee in recent history, and, like Sonia Sotomayor, she had to disown in her confirmation statements the judicial activist approach that the Court used to give us Roe v. Wade.
So as stated, it could have been worse. The pro-life 5-justice majority on the Supreme Court, that in 2007 finally upheld the 2003 federal Partial Birth Abortion Ban passed under President Bush, is still in place. We should milk that for all it’s worth. State legislatures should be passing more and tougher pro-life laws while we can still get them upheld and weaken Roe’s precedential grip on the Court. And we should take the Kagan nomination as another warning of the importance of electing a president who will nominate pro-life justices to the Court before it’s too late.