Elena Kagan

Everybody wants to know what Obama’s Supreme Court pick, Solicitor General Elena Kagan, thinks about abortion. And right now at least, everybody is pretty disappointed. That’s because Kagan, who has never served as a judge (despite being nominated by President Clinton) doesn’t have a record of decisions on the issue—and she hasn’t written much on the subject. But one memo from her years in the Clinton White House does shed some (weak) light on what some say could be a “sleeper issue” during the confirmation process.

The Associated Press dug through the Clinton Library archives and found a few documents that give insight into the abortion issue.

Back in 1997, when she was working for President Clinton, Kagan recommended that he support a compromise on late-term abortions, proposed by Sen. Tom Daschle (D-S.D.), that would have banned the procedure except in cases where the woman’s health was in danger.

Although President Clinton was pro-choice, banning late-term abortions would have put him in conflict with abortion rights groups. But in a memo to the president, Kagan said he should support the compromise—to avoid risking an override of his veto of a more restrictive bill.

What does it all mean? Hard to say. Perhaps that she’s pragmatic? Politically calculating? Not a die-hard idealogue? All of those descriptions would be consistent with a long profile of Kagan published Monday by the New York Times.

More documents should be released before the confirmation hearings begin, but for now, as Slate.com’s Dahlia Lithwick wrote yesterday, “the inscrutable Elena Kagan makes everyone nervous.”

From Lithwick’s story:

…CBS legal correspondent Jan Crawford predicted that the [confirmation] battle would not be contentious at all: “She’s very engaging very challenging, she’s quite dynamic in her personality,” she said, “and you see that when she’s arguing cases before the Supreme Court. The justices really like her —you should see Justice Scalia (obviously a conservative) and Kagan going back and forth.”

Interesting. Here’s more:

Just as some have argued that Kagan’s lack of important academic scholarship makes her better suited for the court, there is a strong argument to be made that Kagan’s understated, even mellow, outings as [solicitor general] show that she will approach the job of Supreme Court justice just as Obama would wish: open-minded, scrupulously fair, and always willing to concede error (so much so that she has sometimes been faulted for giving too much ground on Citizens United). She is always measured and polite. In fact, if you listen to her oral argument in the Citizens United case, you may well be struck by the fact that it’s Roberts who plays the role of oral advocate while Kagan seems to be striving for cautious centrism.

Leyba, who was the father of Lovato’s baby, shot Lovato several times in the abdomen.  He shot her father in the upper torso.

Sarah Lovato’s unborn child, whose name was to have been Isaac, according to the obituary in the New Mexican, was full term and could have been born any day when he was killed, along with his mother and grandfather, by his father.  Mariano Leyba was initially charged with three counts of murder, but the third murder charge was dropped, because Isaac Lovato was not legally a human being.

According to Santa Fe District Attorney Angela “Spence” Pacheco, the prosecutor’s hands are tied.

(Leyba) can’t be charged with murder in connection with the unborn boy’s death because a fetus isn’t considered a human being under New Mexico homicide laws.

“If they had taken (the mother) to the hospital and delivered the baby and it had taken one breath, then died, it would be homicide,” Pacheco said. “But if the baby is killed in the womb, it’s not considered homicide under New Mexico law. It doesn’t matter if the fetus was targeted.”

Whether Leyba is convicted of two murders or three might not affect his sentence, but the idea that a baby who is fully developed and clearly viable is, legally, a non-entity is disturbing.  At least it disturbed the D.A.’s office enough to make them consider charging Leyba with criminal abortion, the only charge they can bring, since New Mexico is not one of the 36 states that have fetal homicide laws.

In 2005, state Rep. Larry Larranaga, an Albuquerque Republican, introduced the “Unborn Victims of Violence Act” but the bill died in committee.  Capt. Johnson has, in response to the Lovato murders, begun working to get such a law enacted. 

But when Capt. Johnson contacted Gov. Richardson’s domestic violence czar, Sharon Pino, about the issue, Pino responded that although the Lovato murders were horrific,

any action should not be undertaken haphazardly in order to avoid “unintended consequences.”

Ah, yes, the slippery slope of overturning Roe v. Wade.  When then-candidate Barack Obama was asked when life began in his Saddleback Church forum with John McCain and Rick Warren, Obama responded,

That’s above my pay grade.

It’s above my pay grade, too, which is why I err on the side of caution, and would not to deny the right to life to any unborn child, no matter its stage of development. 

I realize that in the early stages of pregnancy, many people are unwilling to affirm life and prefer to avoid the issue so as not to jeopardize abortion rights.  I understand that when an embryo is microscopic in size and has not yet reached a recognizable human form, it is difficult to consider it a human being with rights every bit as unalienable as its mother’s. 

When a baby reaches the third trimester, however, it takes some very creative casuistry to deny its humanity.

I’ve carried four pregnancies to term, and from the fifth month on, they all kicked and squirmed vigorously, proclaiming their personhood throughout the day and often through the night.  I saw ultrasound photos of them, saw them rub their eyes and suck their thumbs.  For months, Sarah Lovato felt her son move inside her.  On the day she died, she posted his ultrasound picture on her MySpace page. 

His next picture, which should have been on his birth announcement, was his autopsy photo.

Capt. Johnson said,

Just looking at the autopsy photos, it’s clear we’re talking about a baby boy here and not a fetus… This is not an issue of pro-choice or pro-life. It’s an issue of protecting a pregnant woman and her child.

Indeed it is.  To his credit, affirming the humanity of a full-term baby is not above Capt. Johnson’s pay grade.  It shouldn’t be above anyone’s.