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Kagan on the 'Right' to Suction Someone's Brains

The opinions expressed by columnists are their own and do not necessarily represent the views of

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?

Glenn Beck

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.

The memo detailed four possible amendments to the partial-birth abortion ban. The first would ban these abortions both before and after viability with exceptions for the life of the mother and to "avert serious adverse health consequences to the women." The second would treat post-viable partial-birth abortions just like the first, but it would allow the partial-birth abortion of pre-viable babies for non-health reasons if -- once the woman elected to have an abortion she did not need to spare her life or her health -- it was determined that "the use of the partial-birth abortion procedure (as opposed to other abortion procedures) is necessary to avert a threat to the life or the serious health interests of the mother."

The third and fourth options allowed partial-birth abortions on pre-viable babies for any reason, with the third allowing them on post-viable babies for life and "serious" health reasons and the fourth dropping the adjective "serious" from the health exception.

The memo from Panetta et al. to Clinton noted that the OLC thought only the fourth option was constitutional. The White House Counsel's office believed options two, three and four were constitutional.

Despite this advice, President Clinton decided that he did not want to make any distinction between pre-viable and post-viable babies in a partial-birth abortion ban. Kagan was incredulous.

"As you recall, Leon (Panetta) suggested to you a few days ago that the President does not want to distinguish at all between the pre-viability and post-viability stages of pregnancy in regulating partial-birth abortions," she wrote in a Feb. 15, 1996, memo to White House Counsel Quinn. "I am not sure why the President would resist this distinction; he, the public, and the Court all have accepted the meaningfulness of the distinction in a wide variety of contexts."

Kagan argued that only option one fit Clinton's view -- and that was not only unconstitutional but at odds with the views of pro-abortion groups.

"First," said Kagan, "it is unconstitutional, because it prohibits use of the partial-birth abortion procedure in any pre-viability case in which the woman desires the abortion for non-health related reasons, even if the partial birth abortion procedure (as compared to other procedures) is necessary to protect her from serious adverse health consequences. Second, the groups will go crazy, exactly because the approach effects this broadscale pre-viability prohibition."

As Jane McGrath of has reported, handwritten "suggested" language for a draft American College of Obstetricians and Gynecologists (ACOG) statement on partial-birth abortion found in Kagan's 1996 White House files -- that claimed it "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman" -- somehow ended up verbatim in ACOG's final statement on the issue. The language was then quoted in the Supreme Court decision throwing out Nebraska's ban on partial-birth abortion.

Kagan has no respect for the God-given right to life. Before Obama nominated her to the court, her greatest impact on American life was in the fight to preserve -- thankfully, only temporarily -- the "right" of a mother to hire a doctor to suction out her baby's brains.

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