Religious Right Aims To Portray Kagan As “Pro-Abortion”

This post has been updated.

First out of the box this morning with a statement on President Barack Obama’s nomination of Solicitor General Elena Kagan to replace the retiring Justice John Paul Stevens was Americans United for Life decrying Kagan’s “strong ties to abortion-advocacy organizations” and her praise for “activist judges who have worked to advance social policy rather than to impartially interpret the law.”

I asked AUL’s spokesperson about the source of these statements and he said he’d check on it. But I haven’t found any evidence to support the claim that Kagan is, as the AUL press release puts it, “an ardent abortion supporter.”

Despite AUL’s claims — which are now being replayed through other groups, like Robby George’s American Principles Project — Kagan’s record is not clear. At the Forward, Sarah Seltzer says she’s pro-choice, but Salon’s Gabriel Winant writes, “pro-choice activists will probably settle for their best guess.” The New Yorker’s Jeffrey Toobin, both a Court expert and friend of Kagan’s, writes about her positions generally: “her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.” After the nomination was officially announced this morning, NARAL Pro-Choice America president Nancy Keenan issued a muted statement that hardly sounded like the group maintained “strong ties” with the nominee: “to learning more about her views on the right to privacy and the landmark Roe v. Wade decision.”

Last week, the hard-right anti-choice Life News also claimed Kagan is “an ardent abortion advocate who, at 50, would leave a pro-abortion legacy for Obama on the Supreme Court for decades to come,” while admitting “the lack of a legal record makes it difficult for Republicans to criticize her on specific cases that constitute the legal records of other potential nominees who have served as lower court judges.” The piece then quoted Concerned Women for American president Wendy Wright, who claimed that because Kagan worked in the Clinton administration and “may be sympathetic to the views of internationalists,” she probably supports abortion rights. (Wright worked with Randall Terry’s Operation Rescue when the Supreme Court ruled these anti-abortion groups could be sued under federal racketeering laws and when the Clinton administration supported and Congress passed the Freedom of Access to Clinic Entrances Act, in the wake of anti-choice violence, including the shooting of Dr. David Gunn.) Wright maintained that Kagan probably believes that anti-choice activists are “like violent criminals” and may share “the hostile view that religious beliefs are a form of ‘hate.'”

As to Kagan’s views on religion and abortion, according to Time’s Michael Scherer, “As a young law clerk, Kagan, 49, once penned a memo saying it would be difficult for a religious organization to take government funding to counsel teenagers about pregnancy ‘without injecting some kind of religious teaching.’ When a Senator asked her about the memo, Kagan did not hesitate to distance herself from its views, saying she had fresh eyes two decades later. ‘I looked at it, and I thought, That is the dumbest thing I’ve ever heard,’ she said.”

UPDATE: Confirming that AUL has no basis for the “strong ties to abortion advocacy organizations” claim, I’m hearing from a pro-choice activist that Kagan “is not close with” Planned Parenthood and “has no professional relationship with” Planned Parenthood. This person knew nothing about Kagan’s record on abortion rights beyond her statement in her confirmation hearings to be Solicitor General that she would “respect laws and precedent regarding abortion rights.” (The role of Solicitor General, though, is different from that of a Supreme Court justice.)

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