Elena Kagan helped shape the Clinton administration’s fight against a Republican bill to limit abortion, aiming to bolster the rights of women and honing the message of the administration and its allies.
Now President Barack Obama’s nominee for the U.S. Supreme Court, Kagan in 1996 and 1997 immersed herself in both the legal and political aspects of the fight over a procedure opponents termed partial-birth abortion, according to documents released yesterday by the William J. Clinton Presidential Library in Little Rock, Arkansas.
Kagan laid out alternative phrasing for a draft statement by the American College of Obstetricians and Gynecologists. Although the medical group said the procedure should be an option, the draft statement also said that an expert panel didn’t believe the method was the only way to save a woman’s life or health.
“This, of course, would be disaster -- not the less so (in fact, the more so) because ACOG continues to oppose the legislation,” Kagan wrote in a Dec. 14, 1996, memo.
Notes in Kagan’s handwriting list “suggested options” for modifying the group’s statement, including that the procedure “may be the best or most appropriate” option.
That language ended up in the final version of the group’s statement alongside the original sentence about the expert panel’s findings.
A spokesman for Obama said Kagan was providing legal advice and evaluating policy proposals for a president with a well- established position on the issue.
“He supported a late-term abortion ban with a narrow exception for the health of the woman,” said Ben LaBolt, a White House spokesman.
Many of Kagan’s memos came after Clinton vetoed the ban in April 1996, saying there wasn’t a clear exception for the life or health of the mother. The White House later fought to prevent Congress from overriding Clinton’s veto.
The files also show that Kagan worked on preparing a Supreme Court appeal to spare the president from testifying in the Paula Jones case. Jones, a former Arkansas state worker, accused Clinton of sexually harassing her when he was governor.
Kagan worked with outside lawyers preparing Clinton’s appeal to the Supreme Court as he tried to postpone the trial over Jones’s allegations until he left office.
In a June 26, 1996, memo, she said another White House staffer had suggested having members of Congress file a friend- of-the-court brief in the case. She pointed to the risk that only Democrats would sign it and “the brief would increase the partisan feel of the case.”
The Supreme Court in May 1997 unanimously ruled against Clinton and he later testified about Jones’s allegations, eventually leading to revelations that he had an affair with White House intern Monica Lewinsky.
The Clinton library didn’t provide all of the memos and notes related to Kagan’s work on the Jones case, saying that releasing them would violate presidential confidentiality.
Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said the Clinton library is withholding more than 2,000 pages. The library has released almost 90,000 of the 160,000 pages it is reviewing from Kagan’s days in the Clinton White House.
“Measures must be taken to ensure that documents are being withheld only for appropriate reasons and that nothing necessary to Ms. Kagan’s evaluation before the committee -- and before the public -- is being unnecessarily kept from public view,” Sessions said.
Senator Pat Leahy of Vermont, the panel’s top Democrat, said the committee has already received more documents than it did for either of the two Supreme Court nominations by Bush.
Susan Cooper, a spokeswoman for the National Archives, said the Clinton library will finish releasing the documents next week. The Senate hearing on Kagan is set to begin June 28.
One document provides what might be useful ammunition for supporters who want to rebut the notion that Kagan is too liberal in her views. In a 1996 memo, she criticized a California Supreme Court ruling that required a landlady to rent to unmarried couples. Kagan said the state court’s reasoning, which said the landlady wasn’t protected by a federal religious freedom law in the matter, was “quite outrageous.”
Other documents show that, as a White House lawyer, Kagan handled subpoenas from lawmakers and independent counsel Kenneth Starr for documents concerning the Clintons’ investment in the Whitewater Development Corp. and the failure of an Arkansas thrift, Madison Guaranty Savings & Loan.
Kagan tried to get outside experts to write opinion pieces for newspapers supporting the White House’s right to refuse subpoenas for some information on the Whitewater issue.
Lawmakers were also investigating legal work Hillary Rodham Clinton’s law firm did for Madison Guaranty. In January 2006, missing law-firm billing records that had been sought by the committee were discovered by a White House aide cataloguing the Clinton’s personal memorabilia.
Kagan and another presidential aide issued a memo directing the staff to search for phone logs, computer records, notes or other documents responsive to the subpoena.
“It is extremely important that staff members conduct a thorough search for documents,” the memo said. Staff members were directed to contact Kagan “immediately” if they thought they had documents that couldn’t be located.
The partial-birth debate put Clinton in a delicate political position, caught between his support for abortion rights and popular opposition to the procedure as characterized by its opponents. Foes said the procedure, typically a late-term technique that involves partially removing a fetus from the mother before killing it, amounted to infanticide.
Kagan suggested in her December 1996 memo that opponents were winning the political battle and positioning themselves to restrict abortion at earlier stages of pregnancy.
She said Clinton should support an alternative bill, sponsored by then-Senator Tom Daschle, a South Dakota Democrat, that would have outlawed all abortions after a fetus became viable, while making an exception if the mother’s health or life was in danger. She said foes of partial-birth abortion weren’t likely to be satisfied with that proposal.
“The politics of it have become too good” for opponents, and the partial-birth issue “gives them a wedge into pre- viability abortions,” she wrote.
In a later memo, Kagan told Clinton that his support for the Daschle bill would help keep Congress from overriding his veto. Congress enacted the partial-birth ban after Republican George W. Bush succeeded Clinton as president.
In a memo to then-White House Counsel Jack Quinn on June 22, 1996, Kagan said she planned to send talking points on partial-birth abortion to the Democratic National Committee and Clinton’s re-election campaign. Quinn wrote back that the office couldn’t do talking points “just for DNC/campaign.”
“Of course you’re right,” Kagan replied in a handwritten note. “I will make sure the talking points get more general use or aren’t done at all.”
In that same memo, Kagan raised the point that the health exception Clinton sought wouldn’t affect many women. After meeting with members of ACOG, she said there weren’t many cases where the procedure was the least risky or the “necessary” approach.
“No one should worry about being able to drive a truck through the president’s proposed exception,” Kagan wrote. “The real issue is whether anything at all can get through it.”