Elena's Inbox - A project of the Sunlight Foundation (when she was in Clinton Admin)

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abortion memo2:38 PM 17 Jul 1995 from: Elena Kagan
to: James Castello

After you left, George asked that a draft of the decision memo be circulated;
after the meeting, he said that meant to Rasco, Rovlin, Griffin, and him. It
seems to me that the way to go is to recommend that the President reject the
bill because (1) it does not inlcude an exception for the health of the mother,
and (2) (not stressed as much) because it may apply to abortions that are done
prior to the last trimester and prior to viability. It sounds as if what George
wants is for the President to take an up-front position that if narrowed in
these two ways, he would support it. (We should make clear because George didn’t
seem to understand it, that such a bill would prevent abortions in cases of
fetal deformity.) As we’ve discussed, I think it would be hard to argue that
such a position is unconstitutional (i.e., I think OLC’s third argument is
weak). The question that the participants in the meeting didn’t realy focus on
is: what happens if the health exception is included, but the bill continues to
apply to pre-viability as well as post-viability abortions? As a legal matter,
the question here has to do with whether this an undue burden. A certain answer
to this question would require lots of facts we don’t know, having to do with
the circumstances in which this procedure could (or could not) be replaced by
other procedures; my hunch, though, is that the undue burden argument would be
a stretch.
abortion memo8:17 AM 20 Jul 1995 from: Elena Kagan
to: James Castello

Sorry I didn’t get back to you; I was at the Waco hearing all day (and night).
I actually think the old. paragraph was better. Here’s why. (1) Even under Roe,
I do not think courts would have automatically equated fetal deformities with
harm to maternal health. (2) The Schroeder bill also does not equate the two.
It seems to apply only when fetal deformity itself endangers women’s health;
perhaps there is a presumption that this will always be the case, but this
presumption is not spelled out. (3) Related to the above but more generally, I
think in this paragraph you equate the two too much. For some women, all fetal
deformities will pose a threat to maternal health; for other women, some will;
for other women, none will. I don’t think any court, now or before Casey,
automatically would have equated the two.
What have other people said about the memo generally?

[piasa]

Elena Kagan