Given President Obama’s forthright commitment to nominate justices who support legal abortion [link], pro-lifers can hardly to expect to find that Supreme Court nominee Elena Kagan [link], if confirmed, would vote to uphold any significant restrictions on abortion, much less to overturn Roe v. Wade. However, uncertainty remains as to how far she would let her views on a “woman’s right to choose” shape her thinking on many of the abortion-related issues that have come and will again come before the Court.

For example, what are her views on stare decisis, the doctrine that settled law should not be overturned? Does she support the expansive use of facial challenges in cases involving abortion, i.e., should abortion providers be allowed to challenge an abortion restriction on the grounds that it poses an “undue burden” on women before the law has even gone into effect, before its impact can be measured by fact, not speculation?

The nominee should be probed for other signs of “abortion exceptionalism,” such as:

  • whether she believes opposition to abortion constitutes a form of discrimination against women
  • whether she believes exclusion of abortion from funding sources such as Medicaid, state assistance programs, or insurance coverage constitutes a deprivation of equal protection
  • whether she believes the First Amendment applies with equal force to the public sidewalks outside “reproductive health facilities,” or may the government enact special speech restrictions applicable only in these areas

“We hope and expect pro-life senators will examine Solicitor General Kagan’s record and question her at the hearings with regard to these and other issues that could impact the effectiveness of the pro-life movement’s efforts to protect babies and their mothers for decades to come,” said Dana Cody, President of Life Legal Defense Foundation.