Eyes on the Supreme Court: The Nomination of Elena Kagan

The Center for Reproductive Rights has released a legal analysis of Solicitor General Elena Kagan’s record on abortion rights. The analysis is based on a thorough review of publicly available documents, including her memoranda while serving as a law clerk to Supreme Court Justice Thurgood Marshall, her notes and memoranda while serving in the White House, her academic writings, and her statements upon nomination for the position of Solicitor General. Read the memo >, Kagan engaged in four major areas around abortion rights: (1) access abortion services and funding for incarcerated women, (2) legal protections for women’s health in restrictions on abortions later in pregnancy, (3) restrictions on healthcare providers’ ability to counsel their patients about abortion, and (4) the general state of abortion rights law as expressed during her Solicitor General confirmation process. In short, Kagan’s record suggests that she agrees with the general proposition that the Constitution affords a right to abortion. But her positions on the specific contours of that substantive right are less discernable. In fact, some of her writings raise questions about the depth of her consideration of the significance of reproductive rights to women’s health, lives, and equality. Accordingly, the Center believes it is critical that Senators inquire into her—or any nominee’s—current views on constitutional protections for abortion rights.