By Susan Brinkmann, OCDS
Staff Journalist
It has recently been discovered that U.S. Solicitor General, Elena Kagan, President Obama’s pick to replace retiring Supreme Court Justice John Paul Stevens, helped craft President Clinton’s political strategy for sustaining his veto of the partial birth abortion in 1997, an effort that prevented the ban from becoming law until 2003.
CNSNews.com is reporting that Kagan, who was serving as deputy director of Clinton’s Domestic Policy Council in 1997, advised Clinton in a May 13, 1997 memo to support two Democratic amendments that were being offered as substitutes for the partial birth abortion ban.
Sponsored by Sen. Tom Daschle (D-S.D.) and the other by Sen. Dianne Feinstein (D.-Calif.), the bills banned abortion after viability of the child but included exceptions for the health of the mother and were designed to give Democrats cover who wanted to vote against the ban but still be on record as opposing late-term abortions.
The memo sent to the President by Kagan and council director Bruce Reed included a draft of a letter they felt he should send to the sponsors of the amendments as a way to maintain “credibility” on the issue and support for sustaining his intended veto of the ban. It refers to John John Hilley, Clinton’s director of legislative affairs, and then-White House advisor Rahm Emmanuel, as being supportive of the strategy.
“We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals,” Kagan wrote.
“John Hilley believes that a letter from you supporting the Daschle amendment is of crucial importance in sustaining a veto,” she went on to say. “You have spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined health exception–as you said in a letter to the Cardinals, not a health exception that ‘could be stretched to cover most anything,’ but a health exception that ‘takes effect only where a woman faces real, serious adverse health consequences,’”
The day after Kagan and Reed wrote Clinton their memo, Clinton’s White House Press Secretary Mike McCurry said that both the Daschle and Feinstein amendment met with Clinton’s approval.
As it turned out, both amendments were defeated but President Clinton vetoed the ban a second time that year and the Senate was unable to muster enough support to override it.
Douglas Johnson, legislative director for the National Right to Life Committee, told CNSNews that while the Kagan-Reed memo was not aimed at enacting legislation prohibiting abortion, it advised a political strategy for preventing the partial-birth abortion ban from becoming law.
“The memo was not a serious exercise in lawmaking but a political strategy to prevent the enactment of a ban on partial birth abortion,” Johnson said. “It was not a debate between hardliners and moderates. It was a political strategy among hardliners.”
Even though the amendments failed, they produced a short-term political gain for Clinton and pro-abortion advocates, according to Johnson.
“It succeeded in creating enough confusion and political cover to prevent the partial-birth abortion ban from being enacted,” he said. “Kagan deserves some credit for unrestricted access to partial birth abortion for another six years.”
The partial birth abortion ban was eventually signed into law by President George W. Bush in 2003. Legal challenges delayed its implementation for another four years, until the 2007 Supreme Court ruling that declared the law constitutional.
In keeping with the White House’s strategy to shield Elena Kagan from scrutiny by the press, CNSNews says that it contacted White House Deputy Press Secretary Bill Burton for comment on this matter and received only an e-mail from Burton saying he was “not the contact for this.” Burton did not say who the contact was, and did not respond when asked by CNSNews who at the White House could comment on the matter.
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