~~Ping!
two pieces in Times
9:02 AM 10 Jun 1999
from: Barry J. Toiv
to: Elena Kagan
1. Thernstrom op-ed — Is that OCR report a problem for our testing and
standards, etc.?
2. Safire — We should probably think about guidance on the question of
repealing the 2nd amendment if Safire’s going to be talking about it
two pieces in Times
9:02 AM 10 Jun 1999
from: Barry J. Toiv
to: Elena Kagan
1. Thernstrom op-ed — Is that OC”R report a problem for our testing and
standards, etc.?
2. Safire — We should probably think about guidance on the question of
repealing the 2nd amendment if Safire’s going to be talking about it
“
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Letters to Wlson and Davis9:59 AM 28 Jul 1995 from: Elena Kagan
to: Abner J. Mikva
As you no doubt know by now, the letter to Davis ended up going to Wilson as
well. Because of that decision,which Barry Toiv informed me of, I took out some
of the stuff early on that referred specifically to Davis. Toiv put in the
phrase “in order to apply with all applicable law.” Emerson added the sentence
saying that the Chief of Staff had instructed you to work with the UC system in
solving any problems. (James and I discussed paging you on the golf course for
this and decided not to.) Panetta read it and much to Toiv’s surprise, changed
nothing. I think I do a fairly good Abner J. Mikva signature.
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?