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Elena Kagan on Abortion Rights and Roe v. Wade


The Big Question:

Where does Supreme Court nominee Elena Kagan stand on abortion rights and Roe v. Wade?

Kagan on Rust v. Sullivan:

In 1991, Kagan wrote a critique of Rust v. Sullivan, a Supreme Court case that reaffirmed the constitutionality of the Hyde Amendment. While some observers interpret this as reflecting the view that she would overturn Hyde if given the opportunity, her concerns centered on the content-based restriction policies and their First Amendment implications, not on privacy rights or abortion rights per se.

Kagan on "Partial Birth" Abortions:

In 1997, Kagan co-authored a memo to President Bill Clinton suggesting that he sign a recently-passed congressional ban on live intact D&X ("partial birth") abortions. But the memo clearly stated that the reason Clinton should sign the bill is to avoid the emergence of even more restrictive legislation later; she did not suggest that the ban was in itself defensible or constitutional.

The Bottom Line:

We just don't know much about Kagan's views on abortion yet. During the Senate confirmation hearings, she will probably say more--but not much more. It is reasonable to expect that she will describe Roe v. Wade as "settled law," but so did John Roberts and Samuel Alito. What she will say beyond that, if anything, is anybody's guess.
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