Responding to Sen. Diane Feinstein (D-Calif.) this morning, Kagan confirmed her belief that "Roe (v. Wade) and Doe (v. Bolton) require" that any state "regulation" of abortion protect the "health" of women seeking abortion. Kagan isolated the Supreme Court’s holding in the 2007 case, Gonzales v. Carhart—which upheld the Partial-Birth Abortion Ban of 2003 without a "health" exception—by stating that the Gonzales decision only pertained to a particular abortion procedure.
Under the Roe / Doe framework, an abortionist can offer any reason imaginable to justify performing an abortion at any time during a woman’s pregnancy. However, while upholding the Partial Birth-Abortion Act of 2003 without the massive health loophole, the Court also arguably narrowed the unlimited health exception created in Doe. Therefore, abortion law is quite confused and is far from settled.
The fact that Kagan believes that the Roe/Doe health exception still applies unchanged to all laws pertaining to abortion indicates that she has not changed from the passionate ideologue who advocated against meaningful regulations of abortion while working for President Clinton. During her time in the White House, Kagan argued for a health exception that went further than the one required in Doe. She argued that a woman should have access to a partial-birth abortion if her doctor felt it was the best procedure for her health – regardless of whether she actually needed an abortion at all! This expansive reading of a "health exception" would actually take abortion jurisprudence farther than ever before, and drastically undermine the ability of state and federal legislators to pass meaningful regulations of abortion. In light of the growing body of evidence that abortion is actually dangerous to women, and the advancement of technology that helps unborn children survive earlier outside of the womb, this is deeply troubling.
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