WASHINGTON — Supreme Court nominee Elena Kagan, as a Clinton White House counsel, drafted legal language designed to narrow a proposed ban on a procedure that critics call “partial-birth” abortion.
In a 1996 memo, Kagan argued it would be unconstitutional to prohibit the procedure outright — without an exception for cases where it was needed to avert “serious adverse health consequences” for the mother — and she recommended wording for such an exemption.
Kagan wrote that one of the virtues of her proposal was that “it will not make the groups” — presumably abortion-rights groups — “go crazy . . . because it fully protects the right of the woman to any medically necessary procedures.”
The memo is part of a roughly 40,000-page trove of documents released by the William J. Clinton Presidential Library on Friday that shed more light on what kind of justice Kagan might be.
The documents offer glimpses of Kagan’s positions on controversial issues, such as her reservations about a federal law banning assisted suicide, and instances where she took a broad view of religious freedom. And they reveal her involvement in defending Clinton from scandals that dogged his presidency and the sexual- harassment lawsuit that helped lead to his impeachment.
Most of them date from her stint as an associate White House counsel for Clinton from 1995 to 1996.
Clinton’s library is working on all 160,000 pages of documents related to Kagan’s White House tenure requested by the Senate Judiciary Committee, which is set to begin hearings on her nomination June 28. With Friday’s release, all the paper documents have been produced. Still to come are about 80,000 pages of e-mails — 11,000 pages of which were written by Kagan.
In one case likely to be cited by her allies as evidence that she is no liberal, Kagan criticized a California court for rejecting a landlady’s claim that a state anti-discrimination law violated her religious freedom. In a 1996 memo, Kagan suggested that her appeal should be taken by the Supreme Court and that the justices should side with the landlady, who refused to rent to unmarried couples based on her belief that sex outside of marriage was wrong.
Kagan criticized as “quite outrageous” a finding by the California Supreme Court that the anti-discrimination statute didn’t stifle the landlady’s religion because she could make a living another way.
