Kagan’s constitutional thoughts on abortion


Even though Elena Kagan, President Obama’s Supreme Court nominee, was just learning to e-mail, she had no trouble expressing rather sophisticated reasoning and legal thought on the constitutional aspects of partial-birth abortion. 

In an e-mail exchange with another adviser in the Clinton Administration, Kagan writes strategically about what should be included in a bill that would allow partial-birth abortion:

“It seems to me that the way to go is to recommend that the President reject the bill because (1) it does not include an exception for the health of the mother, and (2) (not stressed as much) because it may apply to abortions that are done prior to the last trimester and prior to viability. [. . .] such a bill would prevent abortions in cases of fetal deformity. As we’ve discussed, I think it would be hard to argue that such a position is unconstitutional,[. . .].”

Kagan goes on to explain what needs to be discussed regarding the matter and how it would or would not satisfy the precedent set by Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Casey ruling says that a fetus’ viability is a critical marker for government regulations on abortions, but up until that point no undue burden, or substantial obstacle, shall be placed in the way of access to an abortion:

“What happens if the health exception is included, but the bill continues to apply to pre-viability as well as post-viability abortions? As a legal matter, the question here has to do with whether this an undue burden. A certain answer to this question would require lots of facts we don’t know, having to do with the circumstances in which this procedure could (or could not) be replaced by other procedures; my hunch, though, is that the undue burden argument would be a stretch.”

If appointed, Kagan will likely have to rule on these issues rather soon. Nebraska recently passed a law banning abortion after 20 weeks based on the idea that fetuses that young can feel pain and makes no exception for mental health. Abortion opponents are expecting the Nebraska Law to go to the Supreme Court where the law may or may not be ruled constitutional.  

In an e-mail to a Gore advisor, it seems that she feels strongly about considering mental health to be part of a person’s health overall. Based on the e-mail, mental health is definitely something to be considered when drafting abortion legislation, according to Kagan. The statement is a clear suggestion  to republicans addressing abortion and a clear reflection of what she considers constitutional:

“If I were the Republicans (and I wanted a bill, rather than an issue), I would respond to the President’s letter by providing an exception for serious health consequences and then defining serious to exclude all psychological, mental, emotional etc. health issues.  This will lead to a very serious Walter problem — much more serious than the mere use of the word “serious” — because there is at least one [Supreme Court} case (and probably more) that explicitly says that mental health is a facet of health just like any other.  I just thought I’d warn you.”