Elena Kagan Abortion Memo Offers New Look at Nominee

ABC News has obtained a 1997 copy of Kagan writing on partial birth abortion.

May 11, 2010, 5:11 PM

WASHINGTON, May 11, 2010— -- Opponents of Elena Kagan's nomination to the Supreme Court have repeatedly said Kagan has a thin paper trail reflecting her views on important hot button issues coming before the Court. But the puacity of public documentation about Kagan could soon change.

In a few weeks, the William J. Clinton Presidential Library in Little Rock, Arkansas, will release thousands of documents pertaining to Kagan, including memos she wrote when working in the Clinton administration beginning in 1995. The memos might reflect advice she gave as an attorney in the White House Counsel's office and later the Office of Domestic Policy.

One memo that has already emerged shows the behind-the-scenes work Kagan did on the issue of abortion. The memo was first reported by the Associated Press.

View a full copy of the original Kagan memo obtained by ABC News HERE.

In 1997, Kagan and Bruce Reed, her boss at the Office of Domestic Policy, urged President Clinton to support a Democratic proposal to prohibit abortions late in pregnancy when a fetus might be viable, even though some abortion-rights groups opposed the proposal. In a memo, Reed and Kagan lay out a raging debate that was occurring in Washington at the time.

For months, President Clinton had said that he opposed late-term abortions except in cases when it was necessary to save the life of the mother or prevent serious harm to her health. Republicans were trying to push through the Partial Birth Abortion Act, which contained an exception for the life of the mother, but no exception for her health.

Senator Tom Daschle came up with a substitute amendment. It would ban so-called partial birth abortions, but it contained a broader health exception. The memo quotes the Daschle language: "It exempts an abortion when the physician 'certified that continuation of the pregnancy would…risk grievous injury to [the mother's] physical health.' "

Kagan Urged Clinton to Support Ban on Partial Birth Abortion

In essence, Kagan and Reed were advising the president to work strategically to support the compromise amendment in a show of good faith. The fear, expressed in the memo, was that some of Clinton's supporters in Congress would switch and support the Republican bill if given no alternative. Officials hoped that if the President supported the amendment, even if it were to fail, he would gain support for his eventual opposition to the Republican legislation.

The White House released a statement last night saying, "As a White House aide, Elena Kagan provided legal advice and evaluated policy proposals for President Clinton, who like President Obama, supported a late-term abortion ban with a narrow exception for the health of the woman."

After Chief Justice John Roberts was nominated in 2005, the National Archives released boxes of similar documents which detailed some of his work in the Reagan administration. When asked about a few of the more controversial documents during his confirmation hearing, Roberts said that he would confront issues "as a judge, and not as a staff attorney for an administration with a position."

In the 1997 memo, Kagan encourages the president to support the Daschle amendment even though some abortion-rights groups -- which she calls "choice groups" -- opposed the proposal. Kagan writes that the groups "argue that the stringency of Daschle's health exception -- including its limitation to cases of physical harm -- undermines the comprehensive protections announced in Roe regarding the health of the woman. "

Kagan notes further that both the Office of Legal Counsel and the Justice Department believed at the time that the amendment violated the landmark Supreme Court ruling Roe v. Wade because it would countenance "tradeoffs involving women's health."

In the end, the strategy was a correct political calculation for the administration. Clinton voted for the Daschle amendment and it went down in defeat. But Clinton then vetoed the Republican legislation and Congress was unable to override his veto.

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