Kagan wrote abortion memo

’96 document offers glimpse on her positions

Associated Press / June 12, 2010

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WASHINGTON — Supreme Court nominee Elena Kagan, as a Clinton White House counsel, drafted legal language designed to narrow a proposed ban on a procedure that critics call “partial-birth’’ abortion.

In a 1996 memo, Kagan argued it would be unconstitutional to prohibit the procedure outright — without an exception for cases where it was needed to avert “serious adverse health consequences’’ for the mother — and she recommended wording for such an exemption.

Kagan wrote that one of the virtues of her proposal was that “it will not make the groups’’ — presumably abortion-rights groups — “go crazy . . . because it fully protects the right of the woman to any medically necessary procedures.’’

The memo is part of a roughly 40,000-page trove of documents, released yesterday by the William J. Clinton Presidential Library, that shed more light on what kind of justice Kagan might be.

The documents offer glimpses of Kagan’s positions on controversial issues, such as her reservations about a federal law banning assisted suicide, and instances where she took a broad view of religious freedom. And they reveal her involvement in defending President Clinton from scandals that dogged his presidency and the sexual harassment lawsuit that helped lead to his impeachment.

Most of them date from her stint as an associate White House counsel for Clinton from 1995 to 1996.

The Republican-led Congress approved a ban on the abortion procedure in late 1995, and Kagan’s memo was from early 1996, a few months before Clinton vetoed the measure.

In his veto message to Congress, which the files indicate Kagan helped draft, Clinton said he was acting because there was no exception for a mother’s health.

Clinton’s library is working on all 160,000 pages of documents related to Kagan’s White House tenure requested by the Senate Judiciary Committee that’s set to begin hearings on her nomination June 28.

With yesterday’s release, all the paper documents have been produced. Still to come are about 80,000 pages of e-mails — 11,000 pages of which were written by Kagan.

Republicans complained that the documents are emerging too slowly.

“I remain deeply concerned that Ms. Kagan’s records will not be fully produced in time for the committee to conduct a proper review,’’ said Senator Jeff Sessions of Alabama, the top Republican on the Judiciary Committee.

Based on the information senators have so far, he said, “it is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment.’’

Also yesterday, a Washington Post-ABC News poll showed that nearly 6 in 10 Americans say the Senate should vote to confirm Kagan, but most also want her to answer questions about how she would have decided past cases and to reveal her stand on legalized abortion.

Democrats overwhelmingly back the president’s pick, who would become the third woman serving on the nine-justice court, as do independents, by about a 2-to-1 ratio. More than a third of Republicans also support Kagan’s confirmation.

Material from the Washington Post was included.