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AUL - Kagan File: The "Harris v. McRae" Memo

RE: Kagan, Marshall, and Harris v. McRae


Thirty years ago, on June 30, 1980, in Harris v. McRae[1] (a case argued by Americans United for Life), the Supreme Court upheld the Hyde Amendment which is a federal restriction on the use of Medicaid funds for abortion.

In Harris, the Court held “Congress has established incentives that make childbirth a more attractive alternative than abortion”.[2]  Congress’ distinction between abortion and other medical procedures was valid because “[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”[3]

Justice Marshall dissented, arguing “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”[4]  Marshall wanted the Hyde Amendment’s exception (which allowed Medicaid funds only to be used for abortions where the life of the mother would be endangered if the fetus were carried to term) to be as broad[5] as the health exception found in Doe v. Bolton.[6]  In Doe, the Court broadly defined Roe’s health exception essentially to give women abortion on demand.[7]  Marshall would have had the taxpayer funding abortions through Medicaid. 

Justice Marshall viewed abortion as a vital part of health care for women, and rejected the Court’s holding that abortion was “inherently different from other medical procedures.”[8]  He held this view through the end of his term on the Court. 

For instance, ten years later, in Hodgson v. Minnesota,[9] Marshall ignored the Court’s ruling in Harris that said abortion could be treated differently than other medical procedures.[10]  Marshall would have lumped abortion in with other medical treatments such as “pregnancy, venereal disease, or alcohol and other drug abuse.”[11]  Marshall’s novel theory trivializes the decision to have an abortion as just another medical procedure. 

Elena Kagan described Justice Thurgood Marshall’s constitutional interpretation as “a thing of glory.”[12] However, the reality of Justice Marshall’s decisions concerning abortion are quite extreme.


The thirtieth anniversary of Harris v. McRae should serve as a reminder that abortion is not an unlimited right nor is it a human good.  The Court was adamant that abortion is a different kind of “medical procedure”, and the people need not fund it with their tax dollars. 

Kagan’s praise for Marshall’s constitutional interpretation as “a thing of glory”[13] indicates she may interpret the Constitution in a similar manner.  Elena Kagan must answer questions about whether she agrees with her mentor’s view that American taxpayers are Constitutionally required to pay for abortions. 

[1] Harris v. McRae, 448 U.S. 297 (1980). 

[2] Harris, 448 U.S. at 325. 

[3] Id.

[4] Id. at 338. 

[5] Id. at 339. 

[6] Doe v. Bolton, 410 U.S. 179 (1973). 

[7] Id. at 192 (“We agree with the District Court, that the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient. All these factors may relate to health.”). 

[8] Harris, 448 U.S. at  325. 

[9] Hodgson v. Minnesota, 497 U.S. 417 (1990). 

[10] Harris v. McRae, 448 U.S. 297, 325 (1980). 

[11] Id.

[12] Elena Kagan, For Justice Marshall, 71Tex L. Rev. 1125, 1130 (1993).   

[13] Id. at 1130. 




“I want to applaud Congressman Pence for his tireless leadership in the fight to stop Planned Parenthood from misusing taxpayer dollars to fund abortions. The GAO’s stunning revelation that nearly $660 million in taxpayer dollars have recently been appropriated to the nation’s largest abortion provider is cause for alarm. Congress needs to listen to the people, not the abortion lobby, and pass The Title X Abortion Provider Prohibition Act immediately.”   

     - Dr. Charmaine Yoest, President & CEO of Americans United for Life Action


The General Accounting Office (GAO) released a report on June 16, 2010 entitled “Federal Funds: Fiscal Years 2002-2009 Obligations, Disbursements, and Expenditures for Selected Organizations Involved in Health-Related Activities.”

In April of 2009, 30 Members requested that the GAO report the amount of federal funding that six organizations received from Fiscal Year 2002 to Fiscal Year 2009.  These organizations were: Advocates for Youth, the Guttmacher Institute, the International Planned Parenthood Federation (IPPF), the Planned Parenthood Federation of America, the Population Council, and the Sexuality Information and Education Council of the United States.


AUL - Breaking News for the Cause of Life. 

It has been a challenging week for the cause of life. We are making significant progress, but the enemies of life still control the levers of power and are working to advance their pro-abortion agenda.Time Contribute 2

Over the past week, a pro-abortion governor vetoed legislation that would have allowed his state to opt-out of taxpayer-funded abortion, radicals in Congress proposed the use of military bases for abortion, and we learned that President Obama's Supreme Court nominee believes that partial-birth abortion "may be the best or most appropriate" option for women.

Governor Charlie Crist of Florida has just vetoed legislation that would have opted Florida out of taxpayer-funded abortion and would have given women the option of having an ultrasound prior to an abortion. This is a major setback in our battle to stop the radical growth of the abortion industry (using our tax dollars), but with your support we will keep up the fight!

We are working to save unborn children in all 50 states, and despite the setback in Florida, we still have opportunities to save lives now. With your immediate help, we will have the funds necessary to work with legislatures and governors in Louisiana, Michigan, Ohio, and South Carolina who are currently considering "opt-out" legislation. But time is short, and the pro-abortion lobby will stop at nothing in trying to sway state elected officials.

Will you support AUL's efforts to stop taxpayer-funded abortion in these states by making an urgent, tax-deductible contribution of $50, $100, $250, or more?

With the support of an anti-life President and Congress, taxpayer-funded abortion is becoming the law of the land in many states. It is a fact: we are witnessing the greatest expansion of abortion in America since Roe v. Wade.

And using our tax-dollars to fund abortions across the country is not enough for those advancing the pro-abortion agenda. Last week a committee in the U.S. Senate voted in favor of using taxpayer-funded hospitals on military bases around the world to perform abortions. The fight to maintain existing law preventing military hospitals from performing abortions now goes to the rest of the Senate and the U.S. House of Representatives. We urgently need your support to keep up the fight against the expansion of abortion using our tax dollars - at home, and on our military bases overseas.

Your support has been vital to our efforts over the past several months, and I hope you will continue to partner with us now. As you know, AUL is working to raise a total of $360,000 by June 30th to continue our life-saving momentum and to stand firm against this onslaught of pro-abortion law.

Please follow this link now to make an urgent, tax-deductible contribution of $50, $100, $250, or more!

If we meet our fundraising goal, we will also be able to alert the Senate to Supreme Court nominee Elena Kagan's radical, pro-abortion stance before her confirmation hearings. Make no mistake about it: Ms. Kagan is the most virulent, pro-abortion Supreme Court nominee in over a decade. Our recent investigation has unearthed alarming information about Ms. Kagan's anti-life positions. In a December 14, 1996 memo, Ms. Kagan discloses her true feelings in support of partial-birth abortion. Her own handwritten notes state that the Clinton Administration should take the position that partial-birth abortion "may be the best or most appropriate" option for women! This is an outrageous judgment for any Supreme Court nominee. And it's yet another reason why we must redouble our efforts for the cause of life.

Please follow this link now to make an urgent, tax-deductible contribution of $50, $100, $250, or more to AUL! Together we can restore a culture of life in America.

Charmaine Email Image Yours for Life,
Charmaine Yoest
Charmaine Yoest, Ph.D.
President & CEO
Americans United for Life

P.S. There's no limit to what you can give, and every dollar you contribute can be written-off as a charitable contribution for federal tax purposes. Please follow this link now to make an urgent, tax-deductible contribution of $50, $100, $250 or more to help us meet our goal. Thank you for your continued support of AUL - Charmaine.


AUL Kagan File: The "Oxford Thesis" Memo 

RE: Kagan’s 1983 Oxford Thesis in Praise of Agenda-Driven Judges


In her graduate thesis[1], Elena Kagan discusses the exclusionary rule and its evolution through the years depending on the make-up of the Supreme Court.  Kagan spends considerable time analyzing the Warren Court (the Supreme Court when Earl Warren was Chief Justice from 1953-1969).   

Kagan describes the Warren Court as “a court with a mission… to correct the social injustices and inequalities of American life … [and] to transform the nation.”[2]  Kagan states that “the Warren Court justices set themselves a goal…and they steered by this goal when resolving individual cases.”[3]  According to Kagan, the “rectification of social injustice” was the Warren Court’s standard of constitutional decision-making.[4] 

Kagan states that “there is much to be said for the Warren Court’s ethical sense” because, as Robert McCloskey noted, “‘a living institution, dealing with living problems, [cannot] achieve perfect logical symmetry, for logic overdone can stultify all its touches.’”[5]  Kagan continues: “Ethical considerations must—or at least should—play a role in the judicial process."[6]

Kagan does not criticize the Warren Court’s vision of a “just and fair society informing almost the whole of the Court’s constitutional analysis.”[7]  Kagan only critiques the Warren Court because it failed to write "a tenable legal argument" for its decisions regarding the exclusionary rule, leaving them vulnerable to reversal or modification by future Courts.

  • Would Kagan think it permissible to translate moral instincts into judicial decisions so long as the justice includes a “tenable” legal argument to support creative legal views?

Kagan states: "U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change.  At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values.”[8]

  • Does Kagan believe “steering the law” to achieve specific ends is legitimate?[9]

Kagan states that the “orthodox view of the judicial branch—perhaps best articulated in Hamilton’s seventy-eighth federalist paper—conceives of the courts as relatively passive bodies.”[10]  She said this was a “largely negative and restraining role” and that the Warren Court “refused to confine itself” because it “felt a positive duty to assume an active role in the governmental process…”[11]  Kagan believed that for the Warren Court, “adhering to federalist principles was simply not as important as creating a just society.”[12] 

  • Does Kagan reject the “orthodox view” that the judiciary should exercise restraint?  Why?
  • Would Kagan feel, as she said the Warren Court did, “a positive duty to assume an active role in the governmental process” as a Supreme Court justice?
  • Does Kagan believe there is conflict between “federalist principles” and “creating a just society?”  Does she believe it is the Court’s role to “create” such a society, or is it the people’s right, through their elected representatives?
  • Does Kagan believe, as she said the Warren Court did, that “only the Court [can] voice and give effect to the noblest aspirations of the American people” or “only the court [can] ensure the open and egalitarian operation of the political system?”[13]

Kagan says that “during the 1950s and 1960s, many of the most important innovations in public policy stemmed from judicial—rather than from congressional or presidential—activity…The court attempted—if necessary single-handedly—to engineer significant domestic reform: Arguably, the Warren Court became the most innovative and active branch of the American Government.”[14] 

  • What are Kagan’s views regarding the Warren Court’s actions and the role of the judiciary?  Would she “engineer significant domestic reform” as a Justice?     
  • Would she insist that the states “closely conform to the Court’s own set of ethical and moral standards,” as the Warren Court did?[15]

Kagan states that “of course, the most meticulously crafted and closely analyzed opinion may not endure the test of time: a future court may overturn such an opinion on the ground that new times and circumstances demand a different interpretation of the Constitution.”[16]

  • Does Kagan believe the meaning of the Constitution changes based on the “times and circumstances?”

Kagan says: “Judges are judges, but they are also men…As men and as participants in American life, judges will have opinions, prejudices, values.  Perhaps, most important, judges will have goals.  And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.  Such activity is not necessarily wrong or invalid.[17]

  • What would be Kagan’s “goals” if confirmed to the Supreme Court?
  • What are the “ethical values” that she would “promote” if confirmed?  And what “social ends” would she seek to achieve?
  • Does she believe it is legitimate for judges to  “mold and steer the law” to promote her “ethical values” and to achieve her “social ends?”


Elena Kagan has expressed support for the Warren Court’s vision of how the Supreme Court is to transform society.  Judiciary Committee members must press Kagan on whether she stands by the comments she made in her thesis that  it is acceptable for judges to mold and steer the law in accordance with their own desired social ends.  Unless she repudiates these statements and their implications under oath before the American people, Senators should reject her nomination to the Supreme Court. 

[1] “The Development and Erosion of the American Exclusionary Rule,” Elena Kagan, Oxford University, June 27, 1983,

[2] Id. at 40.

[3] Id. at 40.

[4] Id. at 40.

[5] Id. at 63.

[6] Id. at 63.

[7] Id. at 41. 

[8] Id. at 6 (emphasis added).

[9] Id. at 6.

[10] Id. at 41.

[11] Id. at 41-42 (emphasis added). 

[12] Id. at 44 (emphasis added).

[13] Id. at 41-42.

[14] Id. at 42 (emphasis added).

[15] Id. at 42.

[16] Id. at 41.

[17] Id. at 119-120 (emphasis added).


AUL - Bench Briefs: Kagan's Extreme Views 


This Week's Feature
On Capitol Hill, AUL Sheds Light on Kagan’s Extreme Views

AUL President & CEO Dr. Charmaine Yoest (seen below with Utah Sen. Orrin Hatch, a longtime member and former chairman of the Senate Judiciary Committee) and other AUL staff are meeting with U.S. Senators to provide our legal team’s research on Supreme Court nominee Elena Kagan’s activist, pro-abortion record.  

Charmaine Utah Senator

Among those involved in the educational effort is AUL Staff Counsel Mary Harned, who previously served as Legislative Counsel and Judiciary Counsel to Alabama U.S. Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee. Harned told AUL Bench Briefs, “We are focusing on members of the Judiciary Committee and other senators who are not inclined to oppose the President. We want them to understand that Kagan is an extreme nominee.”

AUL staff members also attend coalition meetings on Capitol Hill where they update other public-policy groups and Hill staff about our research on Kagan, participate in coalition conference calls, and send daily installments of our Kagan File to key Senate staff. Read our team’s latest research into the nominee’s troubling record, including the Kagan File, on AUL’s Web site.

On The Docket

Kagan File Reveals Nominee's Pro-Abortion Partisanship

The latest installment of the Kagan File details how the documents just released by the Clinton Library further illuminate the extremity of the Supreme Court nominee's position on abortion. Written when Kagan advised Clinton on abortion-related issues, they reveal, among other things, that she continued to oppose meaningful limitations on partial birth abortion even after discovering that the American College of Obstetricians and Gynecologists could not find a legitimate need for the deadly procedure. Click here to read the full memo on the AUL Blog.

Acclaimed Pro-Life Political Scientist Joins AUL for Summer Research Fellowship

AUL is proud to welcome its Summer Research Fellow, Dr. Michael J. New, whose studies for the Heritage Foundation and the Family Research Council have made him the leading expert on the effects of pro-life legislation. Working from our Washington headquarters, Dr. New, who is Assistant Professor of Political Science at the University of Alabama and a Fellow at the Witherspoon Institute, is undertaking a detailed study of the impact of Pennsylvania’s Abortion Control Act. He told AUL Bench Briefs that the act, which was litigated in the Supreme Court’s Planned Parenthood v. Casey and took effect in 1994 has proven to be “among the most effective pro-life laws in the country.” Click here to read more about Dr. New on the AUL Blog, including links to his published articles.

Senate Committee Votes to Allow Abortions in Military Facilities

The U.S. Senate Armed Services Committee recently voted to strike down a longstanding law barring military medical personnel or facilities from participating in abortions except when the life of the mother is at risk, or when the pregnancy is the result of rape or incest. Click here to read a special report on the AUL Blog by our Staff Counsel Anna Franzonello, giving details about this new effort to direct taxpayer dollars toward ending the lives of the unborn.