Saunders: What Kagan’s Time With Marshall Could Mean for Abortion Laws

Posted June 22, 2010 at 12:45pm

Elena Kagan has expressed a deep affection for the Supreme Court justice she clerked for, Thurgood Marshall. While personal affection of a clerk for her judge is certainly normal and understandable, it goes beyond that. She admired his judicial philosophy. This could have grave consequences should she become another agenda-driven justice on the Supreme Court.

In a 1993 Texas Law Review article following Marshall’s death, Kagan described his constitutional interpretation as “a thing of glory.” Why? Because he thought the role of the court was to “show a special solicitude for the despised and disadvantaged.” While that may be admirable in the abstract, the reality of Justice Marshall’s decisions concerning abortion bears further scrutiny.

Justice Marshall frequently dissented on cases involving reasonable restrictions to abortion. For instance, in the 1977 companion cases of Beal v. Doe and Maher v. Roe, the majority of the court held that state funding restrictions on the use of Medicaid funds for abortions was constitutional. Justice Marshall, on the other hand, felt the denial of funds for abortions amounted to a violation of Equal Protection under the 14th Amendment (the Equal Protection Clause reads, “No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws”). Justice Marshall believed that the 14th Amendment mandated that states pay for abortions.

Again in 1980, in Harris v. McRae (a case argued by Americans United for Life before the United States Supreme Court and in which the court upheld the constitutionality of the Hyde Amendment), Justice Marshall argued that the Hyde Amendment — which restricts the use of federal funds for abortions — was unconstitutional under the 14th Amendment’s Equal Protection Clause. Marshall stated that “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.” (Medicaid funds, of course, come from taxpayers, many of whom oppose funding abortion.)

Justice Marshall was also against reasonable restrictions on abortions such as parental notification and waiting-period laws. For example, he dissented in a 1981 Supreme Court case concerning a Utah parental notification statute, H.L. v. Matheson. The court upheld the requirement that a physician, “[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is performed, if she is a minor.”

Justice Marshall, however, dissented. He dismissed the state’s claim that the law would help in “protecting parental authority and family integrity” by stating, “parental authority deserves de minimus [minimal] legal reinforcement where the minor’s exercise of a fundamental right [i.e. abortion] is burdened.”

Again in 1990’s Hodgson v. Minnesota, Marshall dissented in a parental notification case in which the Supreme Court approved a “judicial bypass option” as well as a 48-hour delay requirement. Marshall argued that no part of the Minnesota parental notification requirement was “even reasonably related to a legitimate state interest.” His extreme position against parental notice for minors is illustrated by the fact that even pro-abortion-rights Justice John Paul Stevens acknowledged that notification of one parent and a 48-hour waiting period were reasonable restrictions on abortion.

In Hodgson, Marshall argued the state’s interest in “protecting parents’ independent right ‘to shape their child[ren]’s values and life style[s]’ and ‘to determine and strive for what they believe to be best for their children'” was not actually being protected by the Minnesota parental notification statute.

Marshall said the law was “underinclusive” because it did not require “parental notification where the minor seeks medical treatment for pregnancy, venereal disease, or alcohol and other drug abuse.” This novel interpretation of the “underinclusive” doctrine trivializes the decision to have an abortion.

And Marshall ignores the court’s ruling in Harris that the government can distinguish between abortion and “other medical procedures” because “no other procedure involves the purposeful termination of a potential life.” Denying parents the possibility to consult with their minor child over such an important issue makes a mockery of parental supervision.

In 2008, Kagan attempted to distance herself from Justice Marshall. In response to a question before the Senate about a memo she wrote for Marshall while serving as his clerk, Kagan stated that she was a “27-year-old pipsqueak” who was trying “to facilitate his work and to enable him to advance his goals and purposes as a Justice.”

But the memo, along with other memos that were recently given to the Senate Judiciary Committee, frequently states “I think” or “I recommend.” Kagan is espousing her own views, and not simply the views of Marshall, despite her attempts to distance from them.

Now 37 years since Roe, Americans living with the reality of abortion have become increasingly pro-life. In fact, according to a Gallup poll, more Americans consider themselves pro-life than pro-choice. And when it comes to the question of taxpayer-funded abortion, a Quinnipiac poll found that 67 percent do not support forcing people to pay for a procedure that troubles so many people. The Senate needs to keep these figures in mind as it questions someone whose views do not reflect the majority of Americans.

If President Barack Obama were sincere about finding “common ground” with those in the pro-life movement, then reasonable restrictions on abortion should be something a Supreme Court justice would uphold. Elena Kagan must answer questions about whether she agrees with her mentor’s opposition to abortion regulations.

Bill Saunders is senior vice president of Legal Affairs and senior counsel of Americans United for Life. He holds a J.D. from Harvard University.