The discredited practice of partial-birth abortion has been rejected by the overwhelming majority of Americans, including a large percentage of people who consider themselves “pro-choice.” A 2003 Gallup poll found that over 70 percent opposed the procedure where the life of a baby is ended by suctioning the child’s brain matter while almost its whole body is delivered and only the head remains inside.
But President Obama’s Supreme Court candidate, Elena Kagan, does not reject this inhumane, gruesome procedure. Instead, she believes this atrocity should be allowed to occur in certain circumstances. Papers released by the William J. Clinton Library reveal Kagan’s belief that “the so-called partial-birth abortion” procedure needs to remain legal as the only certain way to protect the “health of women.” Kagan concludes so, even as she acknowledges in the same papers that the procedure is “not the only option to save the life or preserve the health of a woman.”
Most Americans and the United States Supreme Court disagreed with her. The law was ultimately enacted in 2003 with tremendous support and the Supreme Court upheld its constitutionality in its 2007 Gonzales v. Carhart decision.
This should come as no surprise. Kagan has as strong a pro-abortion record as anyone, dedicating her life to serving and supporting those who believed in “a woman’s right to choose” to end the life of her unborn child. From contributing to the pro-abortion National Partnership for Women and Families to working for pro-abortion candidates like Michael Dukakis and President Obama to clerking for pro-abortion judges like Judge Abner Mikva and Justice Thurgood Marshall, Kagan has been a loyal soldier of their horribly destructive cause.
In another astounding departure from the mainstream, Kagan strongly criticized the Supreme Court decision in Rust v. Sullivan in which the Court upheld the constitutionality of regulations that prohibit federal funds from being “used in programs where abortion is a method of family planning.”
Again, though most Americans — even many who consider themselves “pro-choice” — easily understand that the least we can do is prohibit taxpayer dollars from being used to promote abortion, Kagan proudly stands with the most radical pro-abortionists in arguing the regulations amount to unconstitutional “viewpoint discrimination.” She wrote:
How better, then, to communicate an anti-abortion message: through direct speech or through selective subsidization of health care providers? The latter course amplifies the government’s own message at the same time as (and partly because) it wreaks havoc on the ability of those private parties in the best position to challenge the message to provide a counterweight to government authority.
No wonder President Obama likes Kagan so much. Without doubt, she will rubber stamp his unconstitutional health care power grab.
But that’s not all. Kagan is still one of the few extreme radicals who dispute the harmful effects abortion can have on women, calling them “widely contested.” In doing so, she stands in stark contrast to what the Supreme Court said in Gonzales v. Carhart:
It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child. ...
As if this were not bad enough, Kagan has not only proven to be radically pro-choice, she has also shown herself to be willing to circumvent the law in order to advance that cause. Kagan recommended to President Bill Clinton that he support a counterfeit compromise to the Partial-Birth Abortion Ban, even though she believed it to be unconstitutional.
“The Office of Legal Counsel of the Justice Department similarly believes that both the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving women’s health,” she wrote. Still later, she recommended to President Clinton: “endorse the Daschle amendment in order to sustain your credibility … and prevent Congress from overriding your veto.”
No matter how hard the White House media machine tries to push Kagan as an “unknown,” one look at her record reveals a nominee with a real problem accepting facts that go against her preferred policy choices. And if confirmed to a lifetime appointment to the highest court of the land, she will be free to ignore those facts to promote her social agenda.
Elena Kagan is a liberal political careerist, not a judicial scholar. The record shows her sense of politics can outweigh her respect for the law and the Constitution when it comes to certain issues she cares about, like abortion. She should not be confirmed as the next Associate Justice of the Supreme Court.
Penny Nance is CEO of Concerned Women for America.
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Penny Young Nance is president and CEO of Concerned Women for America, the nation’s largest women’s public policy organization. She is the author of the forthcoming book "Feisty and Feminine: A Rallying Cry for Conservative Women" (Zondervan 2016).