The XX Factor

Kagan and Late-Term Abortions

The AP reports that in 1997, when she was in the White House’s domestic policy office, Elena Kagan advised President Bill Clinton to support a compromise proposal that would have banned late-term abortions, post-viability. I’ve been getting e-mails from feminist friends wondering how worried they should be. Not that much, I think (though I do have a bone to pick with Kagan’s fusion of her lawyer and political selves).

First of all, after viability is the key phrase here: Most people would agree that once a fetus can live outside the womb, the whole calculus changes. (This is after at least 22 weeks of pregnancy or, in some cases, after 24 weeks.) Second, the compromise, proposed by then Sen. Tom Daschle, made an exception if continuing the abortion would “risk grievous injury to [a woman’s] physical health,” as well as to her life. The health exception is all-important, abortion providers I trust tell me.

The other thing that matters here is context. At the time, Clinton had vetoed one bill that would have banned so-called partial-birth abortion with an exception only for the life of the mother. The president went on to veto a second such bill, sponsored by then-Sen. Rick Santorum. The right fielded these bills, of course, to focus the conversation about abortion on gruesome-sounding late-term procedures-even though 90 percent of abortions take place in the first trimester, then and now, and only a small number take place after 22 weeks. Daschle was trying to take partial-birth abortion off the table. His proposal actually would have banned more abortions than Santorum’s. The ACLU opposed it. But Santorum did too, calling the bill a sham, according to the Chicago Tribune . And so it died, like most efforts to defuse abortion as divisive and explosive.

In light of this, as well as Kagan’s statement to the Senate last year during her confirmation for solicitor general, that she would respect existing laws and precedent on abortion rights, I don’t think this is a pro-life smoking gun. Yes, it reflects pragmatism, not purity, but we knew that about Kagan already. And in this context, it looks pretty worthwhile. For the pro-choice side, the world would be a better place with Daschle’s bill and without the congressional ban on partial-birth abortion that eventually did pass, and which the Supreme Court upheld. Imagine if the moderate left had been able to take this issue away from the right.

It does bother me, though, that in counseling Clinton to support Daschle’s compromise, Kagan noted that the Justice Department thought it was unconstitutional. It seems oddly unlawerly-fast and loose. On the other hand, she was a White House staffer, which is different from her current job or another one in DoJ. And given where the court came out, it was hardly a slam-dunk call. I should mention that Kagan was working at the time for Bruce Reed, who is a Slate contributor.