During the time that Elena Kagan served as a top domestic policy advisor for President Bill Clinton (1997-1999), she played a key role in shaping and executing the President’s response to the development of new cloning technology. Memoranda and emails released by the William J. Clinton Presidential Library on Friday document Kagan’s involvement in crafting an anti-life position and legislative proposal.
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.
[1] NLWJC – Kagan; DPC – Box 006 – Folder 019; Cloning [2], Page 46, available at http://www.clintonlibrary.gov/KAGAN%20DPC/DPC%205-17/DOMESTIC%20POLICY%20COUNCIL%20BOXES%205-30_Part35.pdf
[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.
