Both abortion rights backers and foes harbor reservations about Supreme Court nominee Kagan

Conservatives, liberal wary of Kagan on abortion

WASHINGTON — One week before Supreme Court nominee Elena Kagan begins her Senate confirmation hearings, both liberal and conservative groups are criticizing her record on abortion rights.

The anti-abortion group Americans United for Life, which calls Kagan a pro-abortion activist, recruited failed conservative Supreme Court nominee Robert Bork for a news teleconference this week to denounce her. At the same time, the liberal Center for Reproductive Rights released a report Monday casting doubt on the depth of Kagan’s support for abortion rights.

The seemingly conflicting developments highlight the degree to which key players — along with the public — can do little better than guess at many of her views on major constitutional issues.

The American Civil Liberties Union, which doesn’t take positions on Supreme Court nominations, released a report Monday concluding that Kagan has demonstrated intellect and knowledge of the law but has not weighed in on most constitutional issues. Free speech and presidential powers, on which Kagan has written extensively, are exceptions, the ACLU said.

“The simple truth is that there is much that we do not know about Kagan’s views on the Constitution and the court,” the ACLU’s report said. “The available record offers very few clues about her constitutional views on criminal justice, immigration, voting rights, prisoners’ rights, due process, the Establishment Clause and a host of other recurring Supreme Court topics.”

The Center for Reproductive Rights said it’s clear from her record that Kagan believes the Constitution affords the right to an abortion. But the group said some of her writings raise questions about how significant Kagan believes those rights are to women’s health, lives and equality.

The center says it’s important that the Senate ask Kagan about her views on the matter during her confirmation process. It criticized as “troubling” Kagan’s contention in a 1988 memo she wrote as a Supreme Court clerk that elective abortions are by definition not medically necessary.

Kagan was writing a memo to Justice Thurgood Marshall recommending that he vote to let stand a ruling requiring Monmouth County, N.J., to pay for inmates’ elective abortions.

“Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous,” Kagan wrote. She said women generally have no right to have their abortions paid for, and “I do not see why prisoners should have such rights.”

The center’s report also criticized Kagan for supporting what it called a “too-narrow health exception” in legislation banning a procedure its opponents call partial-birth abortion. Her recommendations “would have had harsh consequences for women seeking abortions, and were unconstitutional under then-prevailing law,” it said.