As a top White House adviser to Bill Clinton in 1997, Elena Kagan pressed the former president to support a ban on a late-term abortion procedure as a political compromise. Though the memo that Kagan co-authored with her boss, Bruce Reed, is more indicative of a political strategy than a legal argument, the revelation is worrying some abortion-rights activists, particularly given Kagan’s thin paper trail on the issue. Nancy Keenan, president of NARAL, issued a cautious statement on Kagan’s nomination. “[We] look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision,” Keenan said, adding that the group “will work to ensure Americans receive clear answers” on the issue during her confirmation proceedings.
But if Kagan’s memo on late-term abortion speaks more to her political instincts than her legal reasoning, her strategy might have actually appealed to President Obama. Kagan, along with Rahm Emanuel and other top advisers, had urged Clinton to support a compromise bill in order to prevent a congressional override of a veto on a more extreme Republican proposal that banned the procedure without any health exceptions. Clinton decided to follow Kagan’s advice and support a ban on a late-term procedure called intact dilation and extraction that provided exceptions when the mother’s life or health were at risk.
The compromise that Kagan championed assumed the necessity of consensus building and realpolitik—a strategy that’s also guided Obama’s own legislative strategy, in no small part because of Emanuel’s imprint. The proposal would have “largely put an end to the decades-old trench warfare over abortion, marginalizing conservatives who favor a total ban,” writes Amy Sullivan, a former Senate staffer who worked on the compromise. Though there were some concerns about whether the alternative would be constitutional—Kagan’s memo cites the Justice Department’s own doubts about its viability—political pragmatists viewed the proposal as the lesser of two evils.