Monday, June 28, 2010
C-Span offers a searchable video and transcript of the Kagan hearings here. If you search for "abortion," you can hear the (short and not exactly illuminating) exchange between Kagan and Senator Feinstein on Gonzales v. Carhart and the need for a health exception in abortion regulations. Kagan tries somewhat feebly to distinguish the 2007 decision upholding a congressional ban on so-called "partial-birth abortions," which lacked a health exception, as hinging on the "medical uncertainty" of "that procedure." Kagan obviously had to answer carefully here, and I was glad to hear her say that, Gonzales v. Carhart notwithstanding, abortion regulations still require a health exception. It seems to me she could have pointed out, however, that Gonzales itself did not rule that women's health could be subordinated to state interests, but rather suggested that as-applied challenges were the appropriate way to address any potential harm to women's health caused by that particular ban. Kagan's answer instead seemed to reinforce the Court's misguided deference to Congress on the scope of the ban and medical safety of intact D&E.