Elena Kagan was not only to the left of President Bill Clinton on partial-birth abortion, but a fair reading of a memo she wrote in 1996 indicates she believed Clinton was a little squishy on the issue.
The memo, recently released by the Clinton Presidential Library, demonstrates Kagan was intent on preserving an absolute right to kill "pre-viable" babies -- even if it had to be done by sucking out a baby's brains.
In a partial-birth abortion, a doctor pulls a baby feet-first from the womb until only the head remains inside. Then the doctor puncture's the baby's skull and suctions out his brains.
The moment of "viability" in pregnancy simply means the point at which a baby's life can be preserved outside the womb. It is no way linked to the God-given rights of the baby. When a machine can sustain an embryo from conception, conception and "viability" will be simultaneous.
Yet, Kagan wanted to maintain this movable moment as an absolute barrier to state restrictions on abortion -- even if the restriction simply said: Don't suction the baby's brain.
By early 1996, both the House and Senate had passed versions of the partial-birth abortion ban, and neither version included a "health" exception. The omission was intentional. Federal judges had interpreted "health" to mean virtually anything a doctor says it means. A partial-birth abortion ban with a "health" exception would have been no ban at all.
Inside the Clinton administration, there was a discussion: What kind of partial-birth abortion ban should Clinton be ready to sign? What kind should he be ready to veto?
The White House Counsel's office -- where Kagan worked as an associate counsel -- and the Justice Department's Office of Legal Counsel (OLC) had a slight difference of opinion. This difference was explained in a Feb. 2, 1996, memo to Clinton signed by then-White House Chief of Staff Leon Panetta, then-White House Counsel Jack Quinn, then-senior White House adviser George Stephanopoulos and Nancy-Ann Min (now Nancy-Ann DeParle), who then served as associate director for health in the Office of Management and Budget and who now serves as director of the Office for Health Reform in President Obama's White House.
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