As the government begins to implement the new health care reform law–which, as it stands, would effectively insert the federal government into the abortion business–it is more important than ever before that Congress prevent taxpayer money from funding the destruction of unborn life.

By making the Hyde Amendment permanent, through the bipartisan bill introduced by Reps. Chris Smith (R-N.J.) and Daniel Lipinski (D-Ill.), Congress can block the use of tax dollars for abortion procedures. Click here to join pro-lifers across the country in telling Congress, via America Speaking Out, that enshrining the Hyde Amendment in law should be at the top of legislators’ priorities.

The Burris amendment would – simply put – turn U.S. military facilities into abortion clinics.

Advocates for the amendment argue that the change would not amount to taxpayer funding for abortion, but this is completely false. American taxpayers will be footing the bill for elective abortions by paying for these military facilities, additional equipment, and the use of needed military personnel to perform abortions. Further, more money may be used to search for, hire, and transport new personnel to perform those abortions. From 1993 to 1996, when President Clinton allowed abortions in military facilities, the administration had to seek out civilians to perform the abortions – all military physicians refused to perform or assist in elective abortions.

Senator John McCain (R-AZ), arguing on the floor of the Senate that “abortion now is going to be performed in military hospitals,” temporarily stopped this bill from moving forward. But this was only a delay and the Senator is preparing to lead this fight again in the fall. We expect at least one amendment to be offered on the Senate Floor to strike the Burris Amendment. We’ll keep you updated on this important issue. For more information, check out the website of our sister organization, AUL Action.

The drug ella is being marketed as an “emergency contraceptive,” but it is the “next generation” of the abortion drug, RU-486. Like RU-486, ella is a selective progesterone receptor modulator (SPRM).

As a progesterone blocker, an SPRM works to interfere with the developing human embryo, causing it to die by either interfering with the uterine lining and preventing implantation, or by starving an implanted embryo. Women deserve to be fully informed that ella may interfere with and kill a developing embryo and does not only prevent conception.

In June, several members of the FDA advisory panel that reviewed ella’s application raised the concern that there was insufficient data to show the effect ella would have on a pregnancy and a developing embryo or fetus.

However, at the end of the meeting, the panel inexplicably voted unanimously in favor of approving the drug as a contraceptive, and specifically recommended that the FDA not require a pregnancy test before dispensing ella.

Serious concerns also exist about ella’s risk to women’s health.

The chemical make-up and mechanism of action of ella are very similar to RU-486, which is known to cause serious adverse health risks such as severe bleeding, ruptured tubal pregnancies, serious infections, and even death.

Further study is necessary to ensure ella is safe for women, particularly if it is used off-label.

The FDA summary also indicates that the clinical study on ella was too limited to draw any meaningful conclusions about risks associated with tubal pregnancy. Little data is available about ella’s effect on minors or complications from ella’s interaction with other drugs, such as hormonal birth control.

Americans United for Life is part of a coalition, ella Causes Abortions, and joined in signing a letter to the Commissioner of the FDA, urging the agency not to approve ella.

Rights for the unborn:  Pressing on for ‘life, liberty and the pursuit of happiness’

President Obama’s selection of Elena Kagan, the most demonstrably pro-abortion Supreme Court nominee in recent memory, presented a daunting challenge to pro-life leaders, as her 63 Senate votes during Thursday’s confirmation attest.

Not unreasonably, observers have asked: Why then, do we bother?

The question resonates for this particular political confrontation but applies equally to the larger issue as a whole as we near four decades of abortion on demand in America post Roe v. Wade.

We bother because, in the end, we will win.

Think of “Rocky” and “Rudy.” In a universally favorite movie plot, the unsung and discounted hero defies great odds, ignores the naysayers, perseveres in the face of overwhelming obstacles and emerges triumphant just when it looks impossible.

Tenacious persistence has been part of the American fiber since the beginning.

After all, our nation’s founding was the impossible dream of the 18th century. America’s founders had the audacity to believe that the people could govern themselves, and they agreed to take on the world’s greatest military power to earn the right to try.

But in our modern, 24/7 drive-thru microwave Twitter culture, we often forget that great victories for the betterment of humankind don’t happen instantly. Real, substantive change doesn’t take place in the course of one election, one year or as the result of one political battle. It is achieved through a long march that can span many lifetimes.

Martin Luther King Jr.’s “I Have a Dream” speech was not the launching point in the struggle for civil rights and equality. Rather, Dr. King’s genius was his dedication to carrying a well-weathered baton that was handed to him by a long list of committed visionaries. The struggle to make all Americans truly equal regardless of race, which predates our republic, took more than a century and a half.

In 1773, Benjamin Franklin wrote “a disposition to abolish slavery prevails in North America” while Thomas Jefferson, in another letter, castigated King George for his “cruel war against human nature itself” because the king opposed efforts to prohibit the slave trade in the American Colonies.

President John Quincy Adams – the “hellhound” of abolition – was a strong opponent of slavery in America’s early years and had hoped to see its end. Realizing near the end of his life that victory would not be achieved on his watch, he noted that in spite of this, “my conscience presses me on.”

But Adams, in his later years, befriended a one-term congressman from Illinois. Young Abraham Lincoln, who went on to become the 16th president of the United States, later based his Emancipation Proclamation on Adams’ anti-slavery arguments.

As decade stretched into decade, Americans from Harriet Tubman to Rosa Parks pressed on in the defining human rights struggle of their time. And, after fighting a bloody war, staging protests at lunch counters or walking into a hostile school escorted by armed paratroopers, hundreds of thousands of people eventually moved the nation to do the right thing.

Finally, on July 2, 1964, President Lyndon B. Johnson – with King present – signed the Civil Rights Act, a law that put into practice the 14th Amendment guarantee of equal protection for all Americans.

Today, in poll after poll, Americans are trending more and more pro-life. They want to see abortion restricted, support parental involvement laws and want an end to taxpayer-funded abortion. On the issue of judges, Americans are also very clear. In a recent poll, 87 percent said they support judges who “interpret the law as it is written” and 70 percent said they think elected officials should make policy and not the courts.

In spite of this opposition to an agenda-driven judiciary, Washington elites continue to defy the people. Elena Kagan’s nomination is a prime exemplar of this vast contradiction.

After months of dedicated opposition to her nomination, Ms. Kagan’s confirmation is a difficult setback in our long march to ultimate victory.

Justice Kagan’s agenda-driven philosophy, her advocacy of abortion without any restrictions, and her record as a White House aide who manipulated medical evidence to achieve political ends has caused a stir among the electorate.

In 1857, when the Supreme Court ruled in Dred Scott v. Sanford that black Americans essentially had no protection under the Constitution and therefore virtually no rights, abolitionists may have felt that their cause had been dealt a serious blow – yet they continued to press ahead.

They pressed ahead, as we do now, not because victory was immediate but because they were compelled by duty to do what is right. And in America, land of the second chance, we know there will be another opportunity.

When opportunity comes, we will take on the challenge to the best of our ability. We take that challenge knowing that maybe on our watch, or maybe on our children’s watch, 1964 will come again. We are, after all, one human race on an unending quest to secure life, liberty and the pursuit of happiness for all.

Remembering this, may our consciences press us onward.

Charmaine Yoest is president and chief executive of Americans United for Life.

Alveda King is director of African American Outreach for Priests for Life and founder of King for America.

“The overwhelming majority of Americans are opposed to taxpayer-funded abortion, and the ‘No Taxpayer Funding for Abortion Act’ will comprehensively end this practice,” said Dr. Charmaine Yoest, President and CEO of Americans United for Life Action. “Congress can act now and fix this problem once and for all, and we are urging our grassroots activists across the nation to contact their representatives and support this sensible legislation.”

For decades, restrictions on the use of federal funds for abortions have been enacted separately and have been contained in annually-renewed Congressional temporary funding restrictions, regulations, and executive orders.  This new bill would eliminate the ongoing struggle that Congress faces every year to ensure that federal funds are not used for abortions by enshrining this principle in U.S. statutory law.

Further, the Smith-Lipinski bill codifies strong conscience protections to protect health care providers who do not want to participate in abortions from discrimination.

This sensible, bipartisan bill will ensure that no government programs may slip through loopholes in the law to use taxpayer funds for abortions.

In Harris, the Court held “Congress has established incentives that make childbirth a more attractive alternative than abortion”.[2] Congress’ distinction between abortion and other medical procedures was valid because “[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”[3]

Justice Marshall dissented, arguing “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”[4] Marshall wanted the Hyde Amendment’s exception (which allowed Medicaid funds only to be used for abortions where the life of the mother would be endangered if the fetus were carried to term) to be as broad[5] as the health exception found in Doe v. Bolton.[6] In Doe, the Court broadly defined Roe’s health exception essentially to give women abortion on demand.[7] Marshall would have had the taxpayer funding abortions through Medicaid.

Justice Marshall viewed abortion as a vital part of health care for women, and rejected the Court’s holding that abortion was “inherently different from other medical procedures.”[8] He held this view through the end of his term on the Court.

For instance, ten years later, in Hodgson v. Minnesota,^[9] Marshall ignored the Court’s ruling in Harris that said abortion could be treated differently than other medical procedures.^[10] Marshall would have lumped abortion in with other medical treatments such as “pregnancy, venereal disease, or alcohol and other drug abuse.”^[11] Marshall’s novel theory trivializes the decision to have an abortion as just another medical procedure.

Elena Kagan described Justice Thurgood Marshall’s constitutional interpretation as “a thing of glory.”^[12] However, the reality of Justice Marshall’s decisions concerning abortion are quite extreme.

Conclusion

The thirtieth anniversary of Harris v. McRae should serve as a reminder that abortion is not an unlimited right nor is it a human good.  The Court was adamant that abortion is a different kind of “medical procedure”, and the people need not fund it with their tax dollars.

Kagan’s praise for Marshall’s constitutional interpretation as “a thing of glory”^[13] indicates she may interpret the Constitution in a similar manner.  Elena Kagan must answer questions about whether she agrees with her mentor’s view that American taxpayers are Constitutionally required to pay for abortions.

[2] Harris, 448 U.S. at 325.

[3] Id.

[4] Id. at 338.

[5] Id. at 339.

[6] Doe v. Bolton, 410 U.S. 179 (1973).

[7] Id. at 192 (“We agree with the District Court, that the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient. All these factors may relate to health.”).

[8] Harris, 448 U.S. at  325.

[9] Hodgson v. Minnesota, 497 U.S. 417 (1990).

[10] Harris v. McRae, 448 U.S. 297, 325 (1980).

[11] Id.

[12] Elena Kagan, For Justice Marshall, 71Tex L. Rev. 1125, 1130 (1993).

[13] Id. at 1130.

In a May 29, 1997 memo to the President, Kagan and Jack Gibbons (Assistant to the President for Science and Technology) recommended:  “(1) that [the President] support domestic legislation banning human cloning, and . . . announce specific legislation at the top of your June 10th press conference; and (2) that the U.S. support the gist of France’s proposed cloning paragraph [in the G-8 Communiqué] while insisting on critical modifications.”[1] However, as the memo explains, Kagan’s “ban” on cloning only banned the use of cloning aimed at the live-birth of a baby, not at cloning that takes human life.

A June 3, 1997 memo to the President from Todd Stern (Staff Secretary) and Phil Caplan (Assistant to the President), which was submitted along with Kagan’s memo, clarified that the proposed ban should allow the cloning of human embryos for experimentation.  With a check mark, President Clinton indicated his approval of the recommendation by “Jack/Elena . . . that you announce your support for NBAC-type[2] legislation and that you propose specific legislative language”.[3]

In a follow-up June 8, 1997 memo to the President, Kagan and Gibbons further clarified that “NBAC’s proposed legislation –and, as currently drafted, your bill –would not ban the creation of cloned embryos for research purposes.”[4] On the same day, Stern drove that home once again in bold-face type, writing:  “[t]he attached Kagan/Gibbons memo recommends that you follow NBAC in not banning the cloning of embryos for research.”[5]

The cloning of human embryos creates living human beings in the earliest stage of development.  “Using them for research” means they will be “disaggregated” and killed as part of the research.  By endorsing such practices, Kagan demonstrated her disrespect for unborn human life.

Kagan’s involvement in cloning policy was not limited to writing memos.  Over the course of several months, she was in frequent dialogue with other administration officials about the content of Clinton’s legislative language, which Congressional proposals they should support or oppose, and how much they could work with Senate Republicans.  While most of the emails in the file are written to Kagan, it is clear that she led an administration cloning meeting in March 1998 and was asked to provide specific advice about the President’s legislation and Statements of Administration Policy (SAP).

The Administration’s position, which Kagan was deeply involved in constructing, is unethical and would be more accurately characterized as “pseudo-science”.  While Kagan and the Clinton administration tried to create a distinction between cloning humans to be used in research and cloning humans for live-birth, there are not two distinct forms of human cloning.  These are simply two rationales for the same scientific procedure, known as “somatic cell nuclear transfer.”

Kagan and Gibbons stated in a memo that they saw “no moral rationale for treating embryos created through cloning differently from embryos developed through other means (e.g. in vitro fertilization) when embryos are used solely for research.”[6] While the life-affirming response to this would be to ban the destruction of all human embryos for research, they worry instead that halting such destruction might inhibit research.[7] In other words, they put pragmatism over ethics, willing to sacrifice human life in the pursuit of other goals.

Conclusion:

Kagan’s disregard for the value of human life at its most vulnerable stage creates concerns about how she will consider common sense abortion regulations and other cases that will come before the Court.  First, it shows she is deeply hostile to protecting the unborn, even when abortion is not an issue.  Second, when combined with other statements and writings that reveal her judicial philosophy and her views on the constitutionality of regulations that protect unborn life, her views raise concerns  about whether she believes federal restrictions on funding for embryonic stem cell research or cloning, or bans on these procedures, at the state or national level, are constitutional.

[2] Kagan and Gibbons’ cloning policy and legislative recommendations were based in part on the recommendations of the National Bioethics Advisory Committee (NBAC), which was established by President Clinton.

[3] Id. at 45.

[4] Id. at 51.

[5] Id. at 49.

[6] Supra note 1, at 51.

[7] Id.

While increasing law students’ awareness of the laws of other countries is not wrong, favoring international law as a means to “shape” American jurisprudence is problematic.  Kagan should be questioned as to whether she emphasizes comparative and international law merely to inform law students that “many different ways of solving legal problems” exist around the world, or if she believes lawyers and judges should be trained to use international and comparative law as one way “to solve legal problems” within the U.S.

Kagan’s emphasis on international and comparative law presents yet another similarity to her “judicial hero,” Judge Aharon Barak.  In his book, The Judge in a Democracy, Barak dedicates an entire chapter to discuss the significance of comparative law.  There, Barak states that comparative law is an “important tool” to enable judges to “fulfill their role in democracy.”[4]  Does Kagan consider comparative law an “important tool” for a judge?  If so, how is it to be used?  While dean of Harvard Law School, she viewed comparative law as important enough to support requiring law students to study it.

Barak also writes: “Comparative law is a tool that aids in constitutional and statutory interpretation… [and] helps the judge better understand the place of interpretation and the role of the judge as an interpreter.  With comparative law, the judge expands the horizon and the interpretive field of vision.”[5]  Would Kagan include comparative law in her “interpretive field of vision” as a Supreme Court Justice?

Aharon Barak, Kagan’s “judicial hero,” says: “Before judges decide their own positions on the issue, they would do well to consider how other legal systems treat the question…[C]omparative law can help judges determine the objective purpose of a constitution.”[6]    As a Supreme Court Justice, would Kagan rely on comparative law to interpret our Constitution?

Barak goes so far as to say that even in the absence of a direct influence of one constitutional text upon another, there still exists “a basis for interpretive inspiration.”[7]  He gives an example of where this interpretation would be proper: to determine “the scope of human rights, resolving particularly difficult issues such as abortion and the death penalty, and determining constitutional remedies.”[8]  In other words, Barak is arguing that judges should look to foreign countries’ constitutions to determine how to rule on important issues, like abortion, under their own Constitutions.  Would Kagan rely on foreign constitutions to “inspire” her judicial opinions on issues like abortion under the U.S. Constitution?

Barak regrets that judges in the United States have made little use of comparative law.  He urges them to do so.  If confirmed, would Kagan follow Barak’s advice?

Conclusion:

The importance Kagan placed on incorporating international and comparative law into Harvard Law School’s curriculum suggests that Kagan may discount the principal role our Constitution holds in American jurisprudence.[9]  Her admiration of Judge Barak, whose judicial philosophy welcomes comparative law in judicial decision-making, raises further concern that Kagan may embrace comparative law as a method of interpreting the Constitution.  During Kagan’s confirmation hearings, the Senate needs to question deeply Kagan on her view of the role international and comparative law play in a justice’s judicial opinions and in the interpretation of the U.S. Constitution.

[2] This speech may be found in the compilation of Kagan’s lectures and speeches put together by the Judiciary Committee at http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf.  See also Kagan’s 2008 John W. King Memorial Lecture at the New Hampshire Supreme Court, which also may be found at http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf

[3] http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf (emphasis added).

[4] Barak, Aharon, The Judge in a Democracy, New Jersey: Princeton University Press, 2006: 197.

[5] The Judge in a Democracy, 197.

[6] Id., 197-198.

[7] Id., 201.

[8] Id., 201.

[9] http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf

There are no additional memoranda, emails, or notations in the collection of documents released by the William J. Clinton Presidential Library on Friday which indicate why Kagan thought a federal assisted suicide ban was a “terrible idea.”[2]

While two states, Oregon and Washington, have legislatively legalized physician assisted suicide, a decision by the Montana Supreme Court effectively made Montana the third state with legal assisted suicide.[3]

Assisted suicide proponents tout the practice as a compassionate choice for seriously ill individuals, the reality is much darker.  The most frequently cited concerns of terminally-ill patients in Oregon, for example, are the loss of personal autonomy and bodily function and the decreased ability to participate in activities that make life enjoyable.  Fear of becoming a burden to family and friends is also cited.  Americans need care for emotional and physical pain, not death.

Conclusion:

If physician assisted suicide becomes legal in more states, legislatively or through state courts, activist U.S. Supreme Court justices might determine that “societal changes” or a new “social consensus” require revisiting the Court’s decisions in Washington v. Glucksberg[4] and Vacco v. Quill,[5] which held that there was no right under the US Constitution to assisted suicide.

Therefore it is critical that members of the Committee ask Kagan to explain her view that a national ban is a “fairly terrible idea”.  What reasons led her to such a conclusion?  Also, Senators should ask whether she believes national limitations on assisted suicide are constitutionally impermissible.  Further, Kagan needs to say whether, as a Justice, she will respect United States Supreme Court precedent that assisted suicide is not a constitutional right.

[2] According to the documents, President Clinton ultimately opted to “Kick the Can” on the issue.  On a May 18, 1998 memo, he placed a check mark beside a suggestion that he “attempt to forestall legislative action this year.”  The memo continued:  “Delay would allow medical groups, states and others to weigh in that federal approaches in this area are ill advised. Chuck [Ruff] and Bruce [Reed] support this option believing federal drug agents should not regulate doctors, assisted suicide is not an area for federal legislation and ‘kicking the can’ is the best way to prevent a bill. . . .”  NLWJC – Kagan, DPC – Box 002 – Folder 010, Assisted Suicide [1], page 29, available at http://www.clintonlibrary.gov/KAGAN%20DPC/DPC%201-4/915_DOMESTIC%20POLICY%20COUNCIL%20BOXES%201-4.pdf.

[3] See Baxter v. Montana, 224 P.3d 1211 (2009).  The First District Court of Montana (a lower court) became the first court in America to declare a constitutional “right to die” for competent, terminally ill patients.  Ultimately, the Montana State Supreme Court did not agree.  In Baxter, the court held that existing Montana law precluded prosecution of doctors who assist in suicides.

[4] 521 U.S. 702 (1997).

[5] 521 U.S. 793 (1997).

Pro-abortion academics and judges have long sought to impose an “anti-abortion motive” analysis to invalidate state abortion regulations.  For example, Supreme Court Justice Harry Blackmun applied a motive analysis to strike down abortion health regulations in 1986 in Thornburgh v. American College of Obstetricians & Gynecologists[2].

While Pennsylvania sought to require that women be informed of any “detrimental physical and psychological effects” of abortion and of the “particular medical risks” from abortion, Blackmun struck down the statute with this sneering line:  “That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose.”[3]

Justice O’Connor, dissenting, rightly skewered Blackmun’s illogic, noting that it had long been recognized to be within a state legislature’s constitutional authority to regulate the medical profession in this way.[4]

(That Blackmun would compare an abortion with a vaccination says a lot about his mindset, and is quite bizarre in light of the growing body of evidence of the negative health consequences to women from abortion.  And the notion that when legislatures regulate abortion they must simultaneously regulate all other areas of health care in the same way is absurd on its face and is not required by courts in other contexts.)

The “anti-abortion motive” analysis hasn’t been applied by a Supreme Court majority since.

The current Supreme Court majority, which upheld the federal partial birth abortion law in Gonzales v. Carhart in 2007, is unlikely to adopt it.  However, a slight tilt in the Court could change that.

The search for legislative “motive” has many problems. It is often a pretext for finding a reason to strike down legislation which has been passed by accountable, elected representatives. And, despite her emphasis on governmental motive, Kagan’s article actually demonstrates that accepted free speech jurisprudence includes objective criteria (like text and plain language) that go back to the English common law and that more reliably identify an unconstitutional impact on free speech, than would a search for the subjective motives of lawmakers.

But disdain for legislative intent ultimately undermines self-government.  If there is no such thing as legislative intent, then a law, upon passage, does not convey the will of elected representatives but is simply a malleable device for judicial reconstruction.  The will of the people, expressed through the representative branches of government, is rendered irrelevant upon passage of a law.  That has great implications for judicial power when it comes to interpreting the Constitution.

Conclusion:

Kagan’s affinity for the search for the highly subjective legislative “motive” is disconcerting.  Along with her disdain for the much more objective, disciplined and broadly accepted inquiry into “legislative intent” it exalts judicial freedom in “interpreting” laws enacted by the representative branches.  As such, it is another indication of Elena Kagan’s deep admiration for judicial activism and for judges who have an exaggerated view of their role in transforming society.  Would she bring those views to her service on the Supreme Court and to its abortion jurisprudence?

[2] 476 U.S. 747 (1986).

[3] Id. at 764.

[4] Id. at 829.