As a White House domestic policy aide, Ms. Kagan sent Mr. Clinton a memorandum urging him to endorse the ban sponsored by Senator Tom Daschle, Democrat of South Dakota. The memo anticipated that the Daschle plan would fail but suggested that it would provide political cover for enough senators to stick by the president when he ultimately vetoed the tougher bill sponsored by Republicans.
“We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” Ms. Kagan and her boss, Bruce Reed, said in the memo on May 13, 1997.
The president accepted the recommendation, and the White House signaled support for the Daschle amendment the same day. The amendment was defeated, and the Republican-led Congress sent the tougher ban to Mr. Clinton, who vetoed it. An effort to override the veto fell three votes short in the Senate.
The memo, unearthed by The Associated Press from Mr. Clinton’s presidential library, offers a rare glimpse into Ms. Kagan’s involvement with the abortion debate, traditionally a polarizing issue during Supreme Court confirmation hearings. Ms. Kagan, now the solicitor general, has never been a judge and never had to rule on abortion, so both sides are eager to learn more about her position.
Douglas Johnson, legislative director for the National Right to Life Committee, said the memo demonstrated that Ms. Kagan was trying to undercut a genuine ban on an abortion procedure that involved removing the fetus intact. “This shows that she was part of a successful effort to keep partial-birth abortion legal,” Mr. Johnson said.
The situation mirrored one during the confirmation process of John G. Roberts Jr. as chief justice in 2005. While serving in President Ronald Reagan’s administration, Mr. Roberts wrote a memo referring to the legal underpinning of abortion rights as the “so-called ‘right to privacy.’ ”
President George W. Bush’s White House said the memo reflected not Mr. Roberts’s views but advice calibrated to the president he served. The Obama White House said the same about Ms. Kagan on Tuesday.
“As a White House aide, Elena Kagan provided legal advice and evaluated policy proposals for President Clinton, who like President Obama supported a late-term abortion ban with a narrow exception for the health of the woman,” said Josh Earnest, a White House spokesman.
The Daschle amendment would have banned abortions after the fetus was capable of living outside the womb except to prevent death or “grievous injury to physical health” of the pregnant woman. The Kagan memo cited administration lawyers calling it unconstitutional but told Mr. Clinton that his senior adviser, Rahm Emanuel (now Mr. Obama’s chief of staff), agreed that he should endorse it to “help prevent a veto override.”
Mr. Clinton’s veto blocked abortion opponents for another six years, until Mr. Bush signed into law the Partial-Birth Abortion Ban, which was later upheld by the Supreme Court under Chief Justice Roberts.