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Pro-Choice People of Faith Look to Supreme Court Nominee Elena Kagan to Protect Women's Health and Life

July 6, 2010
The Senate Judiciary Committee is expected to vote on the nomination of Solicitor General Elena Kagan for the U.S. Supreme Court when the Senate returns next week. The nomination is of great interest to pro-choice people of faith, given that reproductive rights are under aggressive attack. Kagan has been nominated by President Obama to the seat held by retiring Justice John Paul Stevens, who has been a champion of equal justice for those whose rights are threatened by government intrusion into their most personal and private decisions.

Some information about Ms. Kagan's views on abortion rights came out during the Senate Judiciary Committee hearing last week on her nomination. Sen. Dianne Feinstein (D-Calif.) asked: "Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?" she asked. Kagan replied, "I do think that the continuing holding of Roe [v. Wade] and Doe v. Bolton is that women's life and women's health have to be protected within -- in abortion regulation." (Source: Washington Post)

GOP Sens. Orrin Hatch (Utah) and Jeff Sessions (Ala) also questioned Kagan about abortion-related issues. Hatch asked Kagan about a memo she wrote as a domestic policy aide during the Clinton administration, when Congress was considering a ban on so-called "partial-birth" abortion. The memo said it would be a "disaster" if the American College of Obstetricians and Gynecologists released a finding that the procedure critics call partial-birth abortion was not the only option for preserving a woman's life or health.
Kagan told other White House staff members that they must insist that the group add language saying it might be the best option for the woman. Kagan said she insisted that both statements be included because she knew that was the position of the doctors’ group. In fact, she said, the group opposed the legislation that would ban the procedure. (Source: Washington Post)

Legal analysis released June 28, 2010, by the Center for Reproductive Rights (CRR)
According to the pro-choice legal organization Center for Reproductive Rights, some of Kagan’s recommendations while a clerk to Justice Thurgood Marshall and member of the Clinton Administration would have had harsh consequences for women seeking abortions and were unconstitutional under then prevailing law.

CRR shows that while Kagan has clearly recognized the constitutional importance of protecting women’s health in her writings about access to abortion, some of the recommendations with which she concurred would have had harsh consequences for women seeking abortions and were unconstitutional under then prevailing law. The Center concluded that it is somewhat difficult to draw a firm conclusion about Kagan’s own legal views about the health exception for abortion. The Center’s analysis attributed this uncertainty to the fact that the available documents reflect political calculations and input from multiple people.

People of Faith Look to Obama Supreme Court Nominee Elena Kagan to Protect Reproductive Rights

Statement of Reverend Dr. Carlton W. Veazey, President and CEO, Religious Coalition for Reproductive Choice

May 11, 2010
U.S. Solicitor General Elena Kagan, nominated yesterday by President Obama for the United States Supreme Court, is an exceptionally qualified person who is known for fair-mindedness and considerable legal skills. With reproductive rights under aggressive attack, pro-choice people of faith look to the high court to protect women's ability to make reproductive decisions according to their own religious beliefs and conscience. Ms. Kagan would have an extraordinary role on the divided court in safeguarding justice for women. 

Retiring Justice John Paul Stevens, whose seat Ms. Kagan will fill if confirmed, has been a champion of equal justice for those whose rights are threatened by government intrusion into their most personal and private decisions. Although Ms. Kagan's public record reveals little about her views on the constitutional protections that should be afforded to women seeking an abortion, her nomination was praised by Marcia Greenberger, a former RCRC Board member and co-president of the National Women's Law Center, which has extensive experience in legal issues of concern to women and families. "We have known Elena Kagan for many years and have the greatest respect for her outstanding accomplishments, considerable legal skills, and fair-mindedness," Ms. Greenberger said.

In the past three decades, a multitude of restrictions have weakened the ability of women to make moral decisions when faced with an unintended or problem pregnancy. These restrictions are often promoted by religious groups that are interested in furthering their own doctrine, in direct contradiction to the cherished American principle of freedom to live according to one's own religious beliefs. The last Supreme Court case on access to abortion was decided by the razor-thin margin of 5-4 and further limited women's reproductive rights.

The women of this nation must have their basic dignity and freedom safeguarded by a court that upholds the right to privacy in reproductive matters.

RCRC's interfaith coalition consists of 40 denominations and religiously affiliated organizations representing more than 20 million people who deserve to be heard during the process of selecting the next Supreme Court Justice. Please check your inbox regularly for our updates on this nomination. We must always be ready to raise our voices as people of faith and conscience in support of public policy that reflects our values.

More About Elena Kagan

Elena Kagan was  confirmed as Solicitor General of the United States by the Senate just over a year ago.  Before that appointment as Solicitor General, she had a distinguished academic career. She received tenure at the University of Chicago Law School and then at Harvard Law School and was the first woman to serve as Dean of Harvard Law.  During the Clinton Administration, she served as Associate Counsel to President Clinton and as Deputy Director of the Domestic Policy Council.

Her lack of a public record on many social issues, including abortion rights, could ease the confirmation process. On the other hand, the minimal paper trail has left "some on both sides of the ideological aisle ... suspicious of her," the New York Times reported.
Ms. Kagan likely would not alter the ideological balance of the court. According to the New York Times, President Obama sought a "persuasive leader who could attract the swing vote of Justice Anthony Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John Roberts."

Ms. Kagan would be the third female justice on the current court, joining Justices Sonia Sotomayor and Ruth Bader Ginsburg. Ms. Kagan, age 50, would become the fourth female justice in history and the first justice since 1972 to join the court with no prior judicial experience.

Because Justice Stevens is Protestant and Ms. Kagan is Jewish, the court would be without a Protestant member for the first time in history. Six sitting justices are Catholic and two are Jewish.

Ms. Kagan, a New York native, holds an undergraduate degree in history from Princeton University and a law degree from the Harvard Law School.