President Obama has just nominated Elena Kagan to be the next justice on the U.S. Supreme Court and the proverbial poop is already hitting the fan.  Aside from the usual Republican “just say no” mantra, it seems that some pro-choice groups are a little nervous about her.   That’s because in 1997, she co-authored a memo to President Clinton that recommended he sign legislation that would have banned the “partial birth abortion” procedure.   If it were me, I would have advised the same thing.

As originally drafted, the “Partial Birth Abortion Ban Act” would have outlawed that procedure in all cases except when the woman’s life was endangered.   From the beginning, however, there were a number of pro-choice Senators who were very concerned about the political impact of this bill and they knew that the longer the discussion went on about this procedure, the more support they would lose amongst the general public.  After all, who the hell could defend this gruesome procedure?

So, looking for a way out, Senator Tom Daschle of South Dakota floated a “compromise.”   He suggested that the Congress not only ban that particular procedure but ban ALL third trimester abortions.  The catch was he left an exception for when the woman’s life and health was endangered.   That “health” exception, however, always raises a red flag for the anti-abortion crowd because they allege that that exception can be stretched in many ways.  Indeed, one late term abortion doctor was quoted during this time as saying he would certify the “health” exception in every case presented to him.  Yeah, that one really helped! 

Still, Daschle and others floated this idea, arguing that their proposal would not just ban the notorious partial birth abortion but any other late term abortion procedures.  And that’s when Kagan chimed in and suggested that President Clinton support that approach.   

In retrospect, that was good advice.  The fact is that when the “Partial Birth Abortion Ban Act” was introduced, the pro-choice groups were caught with their pants down.  They found it difficult to defend the procedure so they came up with a lame defense that it wasn’t used very often, a defense that ultimately blew up in their face.  Meanwhile, the polls showed that the vast majority of Americans opposed any late term abortions.  Recognizing the great place they were in, anti-abortion legislators gave speech after speech every day describing the lurid details of the procedure.  I was in the middle of that debate and I swear that the antis orchestrated the speeches to begin at 5:30 p.m. every day so channel surfers waiting for dinner could see the gross pictures depicting the procedure.   

It was a brilliant strategy from a public relations point of view.  And the irony was that the anti-abortion movement knew that if the bill ultimately became law, it would not have stopped one abortion.  Even certain anti-abortion leaders publicly acknowledged the same. What was important to them was that the issue not go away.  If the bill were signed into law, the issue would be gone.  

During that time, a one pro-choice voice argued that the movement should let this legislation pass without a fight.  Let everyone vote for it, don’t fight it, let it become law, no doctor would be affected and the issue would have disappeared.  Instead, the pro-choice movement fought the bill with disastrous consequences. 

Ultimately, the anti-abortion movement would not accept the Daschle compromise because, well, they just did not want to compromise.  And the pro-choice movement opposed him.  But Kagan was smart enough to realize what was going on and gave him some good political advice.   The pro-choice groups should not hold that against her.