Our conclusion is that Elena Kagan is first and foremost a social engineer, animated primarily by a desire to shape public policy on a host of issues. Her legal training and talent is chiefly directed to these ends.On the issue of abortion, NRLC shows how Elena Kagan played a key role in keeping partial-birth abortion legal while Bill Clinton was president.
The White House documents reveal Ms. Kagan to have been a key strategist ? perhaps, indeed, the lead strategist within the White House ? in the successful effort to prevent enactment of the Partial-Birth Abortion Ban Act during the Clinton Administration. The picture that emerges of Ms. Kagan is not that of a staffer who presented the President with objective information and disinterested analysis, but rather, a staffer who sometimes presented selective and tendentious information, and who employed a variety of legal and political arguments, to achieve her overriding goal of defeating the legislation.They also note how it appears that Kagan worked to intentionally mislead President Clinton and the public about the frequency and reasons for partial-birth abortions.
Early on (in January, 1996, if not earlier), it appears that Ms. Kagan was instrumental in providing President Clinton gravely distorted assertions regarding the frequency of partial-birth abortion and the reasons for which it was typically performed, although more accurate information had been published by a congressional committee and was readily available. In June, 1996, she described a private briefing from the American College of Obstetricians and Gynecologists (ACOG) in which she learned that ?[i]n the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman?s health . . . . there just aren?t many [circumstances] where use of the partial-birth abortion is the least risky, let alone the ?necessary,? approach.? Although Ms. Kagan herself described this briefing as ?a revelation,? she also advised against immediately conveying its substance to the President. Moreover, in December 1996, when Ms. Kagan obtained an ACOG draft for a proposed public statement that reported that ?a select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure . . . would be the only option to save the life or preserve the health of the woman,? Ms. Kagan wrote that such a public statement ?of course, would be disaster.? It appears that Ms. Kagan was dismayed not by the realities of partial-birth abortion, but by the prospect that public awareness of those realities would harm the White House efforts to prevent enactment of the ban.
FULL LETTER (in PDF)