Kagan’s abortion comments support ‘massive loophole’ in law, pro-life group says

Sen. Diane Feinstein (D-Calif.) and Supreme Court nominee Elena Kagan.
Sen. Diane Feinstein (D-Calif.) and Supreme Court nominee Elena Kagan.


In Tuesday confirmation hearings, Supreme Court nominee Elena Kagan has confirmed her belief that past high court decisions require that any state regulation of abortion protect the “health” of women seeking abortions. One pro-life group objected that this exception constituted a “massive loophole” barring most regulation of the procedure.

Sen. Diane Feinstein (D-Calif.) brought up abortion jurisprudence in the confirmation hearing on Tuesday.

“Do you believe the constitution requires that the health of the mother be protected in any statute restricting access to abortion?” the Senator asked.

Kagan replied that the “continuing holding” of Roe v. Wade and Doe v. Bolton was that “women’s life and women’s health have to be protected in abortion regulation.”

Dr. Charmaine Yoest, president and CEO of Americans United for Life, claimed the nominee reaffirmed her support “for the benefit of her supporters in the abortion lobby” and for abortion without “limitations or restrictions.”

According to Yoest, the American people do not support Kagan’s “out of the-mainstream position” and do not want a judge who “has already pre-judged the issue.” Recent polling data shows that more Americans are choosing to describe themselves as pro-life.

AUL argues that under the legal framework created by Roe and Doe, an abortionist can offer “any reason imaginable” to justify performing an abortion at any time during a woman‘s pregnancy.

However, the Supreme Court decision Gonzales v. Carhart upheld a partial-birth abortion restriction without the “massive loophole” and arguably narrowed the health exception created in Doe.

In AUL's view, this means that abortion law is confused and “far from settled.”

“The fact that Kagan believes that the Roe / Doe health exception still applies unchanged to all laws pertaining to abortion indicates that she has not changed from the passionate ideologue who advocated against meaningful regulations of abortion while working for President Clinton,” the pro-life group commented in a statement.

AUL reported that during her time in the White House as an advisor to President Bill Clinton, Kagan sought a health exception that went further than the one required in Doe and took a position that would “drastically” undermine the ability of state and federal legislators to pass “meaningful” regulations of abortion.

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