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NLWJC - Kagan
DPC - Box 069 - Folder-008
Counsels Office - Memos to POTUS
etc.
�THE WHITE HOUSE
WASHINGTON
October 2, 1996
MEMORANDUM FOR MELANNE VERVEER
FROM:
ELENA KAGAN ~/v
SUBJECT:
SEN. BOXER'S PARTIAL-BIRTH LANGUAGE
The draft language you sent me the other day looks identical
to the old Boxer Amendment, which failed by just a few votes when
the Senate first considered the Partial Birth Act.
Sen. Boxer's proposal is far less restrictive of partialbirth abortions than the President's approach. Sen. Boxer would
permit all partial-birth abortions prior to viability, even if
these abortions are not necessary to protect the woman's life or
prevent her from suffering serious adverse health consequences.
The President, by contrast, would insist that pre-viability, as
well as post-viability, partial-birth abortions be necessary for
these reasons.
Let me know if you hear of anything else or if you have any
questions.
�Melanne Verveer
,-
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20 SES.QION
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IN THE SEN}'1_TE OF THE UNITED
ST.A.'l'E~
introdured !;be Iollomng hill; which was l'ead twice and refel'1'OO
to th4! CQrnmiuee on
A BILL
'1'0 amend title 18, United States Code, to ban partial.
birth a.bortions.
1
Be if"",act8d by the S~ate
aM House
qf Rup"esenta-
2 tives OfthS U'f6itea Sfa:tesaj' America i'1l CO'hgTesS a886mbled,
3
4
~
SECTION 1. S-SORT TITLE.
This Act may be cited as the "l~artial-Birth .Abortion
Ban Aet of 1995".
6 SEC. Z. l"~O'£aBl'l'ION ON PARTIAL-BIR'l"ll ABOlt'l'tONB.
7
(a)
IN'
GE~ER.lL.-Title
18, United States Code, is
8 amended by ins.erting after. chapter 73 the following: .
9
"C1:IAP'l'ER 74-PARTlAL-Bmm ABORTIONS
"1531. Partinl·birth Qoortiolllj pnlhibitl!d.
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1 "'§ 1531. Partial-birth abortions prohibited
2
"(a.) Whoever, iu or o.ffeeting intentu.te or f.oreign
3 commerce, lmow;.1)gly Pertorms a partial·birth abortion
4 and thel"eby kills a human fetus shall be fined under this
5 title or im.pri/3oned. not morEl than two years t or both.
The"1
6 'll~~d.fu:g--sen:teXlae., shall Dot apply to any abortion per·
7 fortned ,p'rior' l6the ''Viability of the fetus, or after viability'
&
'l'irhere,'iii 'tH;-;:di~:i j~~e~t~rthe·8.~~ physician, ...
9
the'ab(iI1ft'~n,,18
10
. ..;-.-"'1: - _..... - •. - .
-
or" a.~, ,serious' . advel-:ie
. " ...........
11 'Woman.
12
•
••
t).ecessary to prese):"Ve the life of the woman
health ~onsequenMG to
"Ch) As used in this section, the
the
tl:!rID 'p~;rlial-birth
13 abortion' means an abortion in which the person pel'form14 ing the ahurtion partially vaainally delivers a living fetns
15 before killing the fetus and completing tM dt;\livery.
16
"(c)(l) The father,
~nd
if the mother has not. at-
l? tainecl the age of 18 years at the time of the abortion,
18 the m.fl.t.ernol grandparant&: or-the fetus, may in s. civil ac-
19 non obtain appropriate relief, unless the pregnancy re20 salted from the plaintift's
21
~onsented
to the abortion.
eriJnjnaJ.
conduct or the plaintiff
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"(2) Such ~lief shall in~m.dc-
1
2
"(A) money damages fOr all injurieEJ, psyv!ho-
3
losic,al land phYsical, o<Jnaai.on~d by thQ viola.tion of
4
this section; and
:5
"("8) :lit;atutoty da:ro.agelS equal to three times
M~t.
of tha partial. birth abortion.
6
tha
7
"Cd) A woman u:PQn whom a partial·birtb. abortioll
8 is performed ma.y not be proseouted tU>.der this lSeeti{)n,
COnspi~MY to
9 for a.
10 nndeT'
SootiOTI
viola.te this Gcetion,
2, 3, ot'
or for
'* of this title based on
6.D.
3.
offelUie
violation
11 of thiS seation.
"(e)· It is an affirmative defense tn \\
12
p~seC\'l,tion
or
13 a. civil a.ction under this aection, whiah must be proved hy
14
8.
preponderance of the evidence, that the partial-bil'th
1 S aJ')ol"tion WM performed by a pb,ysician who TeCl.lSonably be-
16 lieved··_·
17
18
"(1) the partial-birth abortion was neeessary to
(lave tlie ·life of the motherj u.nd
19
"(2) no other procedure would !etlA'ice for that
20
purpose:".
21
(b) CU:RIC.AL A..:VU:ZO'DMENT.-The tablQ of cba!)f.ltrs
22
£01' part
l of titlQ 18, Unit.ed Sta.tes Code, is amended by
23 inserting after the item relating
to ch"1;>ter 73 the follOW'-
24 ing new item:
"74. Parttal.birth
aboriiOI1$ ...........................................................
1681".
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AMENDMENT NO. _ _
I
Calendar No _ _
Purpose! 'fo clarify the application of certain ProviaiOIlS with
respec!f. to abortions where necessary to preserve tM
life 0"1" healt.h of the woman.
IN THE SENATE Of'THE t1NlTE1l STATJDS-lMth Coug., 1st Sefi.
H.R.1833
St.~tes Code,
abortio~~&.
To amend title 18, Unit.ed
to ban partiaJ.-birlh
Referred to the Committee on _~_ _ _ _ _ _ _ _ __
and Qrdered to 1J~ printed
Ordered to lie on the table l'lml to be printed
AM:Iil~DME!liT
intended t.o hEllll'Oposed by Mrs. BOXER
Viz:
On Paw 2, line 9, add. after the peliod the tollowi:ng
1
2. new sentence: "The preceding sentence shall ~ot apply to
.
l
;
J . any abortIQn performed prior to U\e viabi11ty of the fetus,
4 or after ";llhility whQ-l'Q, in the medical judgment of tha
5 attending physician, the abortion is necessary t(l "preserve
6 t.he Hfe of. the woman or avert SeriOu.3 adverse health con7 sequences to the woman.".
�c
7"~~~~
~ it.
THE WHITE HOUSE
WASH INGTON
June 22, 1996
MEMORANDUM FOR JACK QUINN
KATHY WALLMAN
~
ELENA KAGAN
SUBJECT:
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PARTIAL BIRTH ABORTION
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1. Override votes on the partial-birth veto are
,
for mid-July in the House (where a 2/3 vote is probable) and mid-~
0
September in the Senate (where a 2/3 vote is very unlikely).
The~,
idea, of course, is to stretch out the issue over as many months _ J A,z
as possible.
I am attaching materials put out by the Catholic
~
~.
Church indicating what it will do during these months. At a
~~
recent meeting of the White House "abortion team" (sans George), ~ ~.
it d w~s ~~cide~h (aspsum~dng tG~org3e signs tOt ) (l ) .tQ send the DNC f
1 ff
)'J.a~_
e- ~ct
e res~ en s -page e er an d a revamped se~ 0
(~
t'!,lking points, for distribution as they think appropriate; and
GI~.
(2) to send to religious and regional press, around the time of
~ rr~
the July override vote, a 750-word op-ed, with Secretary Shalala~,
~
as possible signatory.
I was tasked with the job of doing the
~
talking points and op-ed~ which I will send to you.
~.
'~
'"
.,
2. Melanne, Todd, Jennifer Klein, John Hart, and someone
~~~~.
from Betsy Myers's office met a few days ago with the former
""'~.
President and the current chief lobbyist for the American College
of Obstetrics and Gynecology (ACOG).
For many months, the fOlkS~
at ACOG had been unwilling to speak with us about the medical
issues surrounding the partial birth ban, but Marilyn Yeager
~~.
convinced them to do so, and this meeting was the result.
It was
,something of a revelation.
Two important points emerged from the meeting.
First, there
are an exceedingly small number of partial birth abortions that
could meet the standard the President has articulated.
In t
vast majority of cases, selection of the partial birth
edure
is not necessary to avert serious adverse conseque
to a
woman's health; another option -- whether a
er abortion
procedure or, in the, post-viability
ext, birth through a
caesarean section, induced la
, or carrying the pregnancy to
term -- is equally saf
will spare you all the medical
details here. S
ce it to say that we went through every
circumsta~ce-lmaginable -- post- and pre-viability, assuming
malforme~- fetuses, assuming other medical conditions, etc., etc.
~~d there just aren't many where use of the partial-birth
/~abortion is the least risky, let alone the "necessary," approach.
/
No one should worry about being able to drive a truck through the
President's proposed exception; the real issue is whether ~
anything at all can get through it.
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�THE WHITE HOUSE
WASHINGTON
June 22,. 1996
MEMORANDUM FOR JACK QUINN
KATHY WALLMAN
FROM:
ELENA KAGAN ~
SUBJECT:
PARTIAL BIRTH ABORTION
1. Override votes on the partial-birth veto are scheduled
for mid-July in the House (where a 2/3 vote is probable) and midSeptember in the Senate (where a 2/3 vote is very unlikely). The
idea, of course, is to stretch out the issue over as many months
as possible.
I am attaching materials put out by the Catholic
Church indicating what it will do during these months.
At a
recent meeting of the White House "abortion team" (sans George),
it was decided (assuming George signs off) (1) to send .the DNC
and Re-Elect the President's 3-page letter and a revamped set of
talking points, for distribution as they think appropriate; and
(2) to send to religious and regional press, around the time of
the July override vote, a 750-word op-ed, with Secretary Shalala
as possible signatory.
I was tasked with the job of doing the
talking points and op-ed, which I will send to you.
2. Melanne, Todd, Jennifer Klein, John Hart, and someone
from Betsy Myers's office met a few days ago with the former
President and the current chief lobbyist for the American College
of Obstetrics and Gynecology (ACOG).
For many months, the folks
at ACOG had been unwilling to speak with us about the medical
issues surrounding the partial birth ban, but Marilyn Yeager
convinced them to do so, and this meeting was the result.
It was
something of a revelation.
Two important points emerged from the meeting.
First, there
are an exceedingly small number of partial birth abortions that
could meet the standard the President has articulated.
In the
vast majority of cases, selection of the partial birth procedure
is not necessary to avert serious adverse consequences to a
woman's health; another option -- whether another abortion
procedure or, in the post-viability context, birth through a
caesarean section, induced labor, or carrying the pregnancy to
term -- is equally safe .. I will spare you all the medical
details here.
Suffice it to say that we went through every
circumstance imaginable -- post- and pre-viability, assuming
malformed fetuses, assuming other medical conditions, etc., etc.
-- and there just aren't many where use of the partial-birth
abortion is the least risky, let alone the "necessary," approach.
No one should worry about being able to drive a truck through the
President's proposed exception; the real issue is whether
anything at all can get through it.
�Second and relatedly, of the five women who came to the
White House, only two can truly say (though they all apparently
believe) that the partial birth procedure was the least risky of
their alternatives. Again, I'll spare you the details, but the
other three -- all of whom were carrying malformed fetuses in the
third trimester -- could have given birth, either through
induction or through carrying the fetus to term, without serious
risk to their health. (The partial birth procedure in these cases
was the least risky method of abortion, but this is not a strong
argument, given that all these fetuses were post-viability -when most states, and the President himself, would prohibit all
abortions except for life or health reasons.)
Those present at the meeting all agreed, on the basis of the
thoroughness and care of the ACOG presentation, that these two
points are probably just true, rather than a matter of medical
opinion.
(Betsy Myers and Jeremy Ben-Ami, neither of whom
attended the meeting, have expressed the view that some other
doctor might say something different.)
At the same time, none of us think that this information
should cause us to change the standard the President has
articulated or the rhetoric he has used.
The letters and written
materials we have used are really pretty accurate -- even though
the proposed amendment the President has offered would allow
fewer abortions than we knew.
So too for the President's oral
statements. Melanne believes that an appropriate time, prior to
the debates or when the veto becomes an issue again, we should
make sure the President knows that some of the women's stories
are tighter than others; otherwise, she sees no need for any
further briefing.
I agree, but I also would keep a close eye out
for -- so we can clamp down quickly on -- any extension of our
rhetoric, whether by the President or others.
�'.
ARCHDIOCESE OF WASHINGTON
~
E.,HER"
'.~\·E"n
P';)H OffiCE 8,,\ 2920..'
U:UHI"GTO".
OffiCE OF TtlE
0 C 2<X'17
.~RClimIiOr
June 5, 1996
Prot, N. 18/96
Dear Brotherin Christ,
Thank you for the many prayers and good wishes for my speedy recovery.
The outpouring of love and concern has been truly overwhelming and I am convinced
that your prayers are greatly responsible for my progress. While the doctors have
cautioned me to avoid letter writing, I am compelled to share our response to the
expanding "culture of death" that the Holy Father has so clearly identifie'd in our
society.
Recently, I joined other U.S. cardinals iIi expressing dismay and profound
disappointment y,jth the presidential veto of enacted federal legislation to ban the
partial-birth abortion procedure. In a letter to the President, we conveyed our
intention to be uncompromising and unstinting in efforts to inform our own Catholic
faithful and other Americans of good faith about the horrible reality of partial-birth
abortions, and to promote support for a congressional veto override. In the face of
this latest manifestation of a "culture of death," it also is our intention to encoUrage
prayerful reflection and a renewed commitment to life and its Giver.
My intention is to provide an outline of our plan to participate .!p this
nationwide prayer-and-action effort. With your assistance and the cooperation of the
good people in your parish, it is my hope that we may educate our people·about the
partial-birth abortion procedure and exhort them to urge their congressional
Tepre1;entatives to vote for an override. Importantly, this effort should be pursued in
an atmosphere of prayer -- prayer for our nation, for our elected officials, and for the
great cause of life.
Here, then, is the plan of action.
•
Early June: Prayer card distribution accompanied by a pulpit announcement
describing our local effort and the importance of prayer in reversing the partial-birthabortion-ban veto. As with the prayer cards developed for the referendum effort
several years ago, it is hoped that these prayer cards will be used in the homes of
parishioners as well as incorporated into your liturgical celebrations. Each parish is
encouraged to develop individual prayer activities in support of this national campaign.
�..
~
June 6, 1996
Page Two
•
Late June: Distribution to all parishioners of an "Action Alert", encouraging
phone calls to the appropriate members of the U.S. House of Representatives, and
providing an explanation of the partial-birth abortion procedure.
•
July. National Day of Prayer and Fasting for an override of the president's veto
on Thursdily, July 11.
•
September: Distribution and collection of pre-printed postcards to our two U.S.
senators, these to be delivered to the senators' Washington offices by representatives
of the Archdiocese. The details of this effort will be announced later; however, we do
not plan an "in-pew" effort but will offer several other options.
•
October: Participation in a special pro-life liturgy as part of our Annual Shrine
Pilgrimage, with special focus on reversing the "culture of death" signified particularly
by the partial-birth abortion procedure and attempts to legalize assisted suicide.
•
Ongoing: The inclusion over time of "culture-of-life" petitions in general
intercessions at weekend Masses.
More specific information will precede or accompany materials provided
to your parish. Please look to your parish's Respect Life Committee for assistance
with the various activities. If the name of your Parish Pro-Life Coordinator is not
already on file at the Pro-Life Office, please return the enclosed form as soon as
possible. This will allow our local Catholic Conferences to coordinate this effort
directly with your personal representative on pro-life matters.
.
I recognize that the effort outlined here will come at a time when parish
activity is reduced and pastor, staff and parishioners look forward to summer
vacations. Unfortunately. the timetable is not of our making, but determined by
congressional scheduling. With advance planning and shared responsibility, I am
confident each parish can participate effectively.
Thank you for your own continuing support of the Gospel of Life. With
the prayer that the Holy Spirit may bless our efforts to reverse the tide. that
increasingly puts human life at constant risk in our country, I am
Sincerely in Christ,
�"
,"
Prayer Card Distnoution and Pulpit Announcement
~~r(!k8Y~
- R<d Our Father, Giver of life,
~~ entrust the United States of
America to Your loving care.
You are the rock on which
this nation was founded.
You alone are the true source
of our cherished rights to life, liberty
and the pursuit of happiness.
Reclaim this land for Your glory
and dwell among Your people.
.Send Your Spirit to touch the hearts
of our nation's leaders.
Open their minds to the great worth
of human life and the responsibilities
that accompany human freedom.
Remind Your people that true happiness
is rooted in seeking and doing Your will.
.:
Through the intercession of Mary
Immaculate, Patroness of our land,
grant us the courage to reject
the "culture of death:
Lead us into a new millennium of life .
We ask this through Christ Our Lord.
cA-/
The weekend of June 15/16 is the suggested
time to introduce the "Prayer for Our Nation"
prayer cards to parishioners. Like the prayer
cuds distributed and used during the Maryland
Abortion Referendum several years ago, it is
recommended that these cards be available in the
pews or inserted in hymnals for recitation by the
congregation. Many parishes found that the best
time to use the prayer as part of the liturgy was
during the general intercessions or just before
the final blessing. It is asked that this prayer be
used from now through Respect Life Month in
October. Extra cards have been printed for
fa.tniIies who wish to use the prayer at home as
well.
Prayer cards are being distributed at meetings
with parish pro-life coordinators or they will be
delivered directly to the parish offices/nictory.
Parishes may request prayer cards printed in a
label/sticker format so that they c:a:n be
conveniently applied inside of hymnals. The
prayer card is also being translated into Spanish
and copies will be delivered to parishes with
Spanish speaking communities. Call the Pro-Life
Office 301-853-5318 for more information.
If your parish is still using the pray;r card that
was distributed during the referendum effort,
please continue to use that prayer if you choose
not to replace it with the "Prayer for Our Nation"
card.
Suggested Pulpit Announcement for June 15/16:
Today, (your church's name) joins parishes across the nation in launching an "Override
Campaign" - a prayer and education effort directed. toward a Congressional override
of President Clinton's veto of a bill banning a particularly grotesque abortion
procedure bordering on infanticide - the partial birth abortion. Today we will begin
by praying together for our nation's return to a respect for aIllife. As override voting
dates draw near, you will be asked to communicate with· your Congressional
representatives. The Catholic community, through prayer and action, can make a
difference.
�V-A\"'I
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THE MARYLAND CATHOLIC CONFERENCE
AICItDIOCUI Of IALTlMOII
•
AIOIOICICUI Of _ t O N
•
OIOCISI Of ~ON
188 Dulle of Gloucester $IrwI • AnItllpOl4. MtD)IIand 21401-2515 • 410/269-1155
Re: Partial-Birth Abortion Ban
Veto Override
June 12, 1996
Dear Pastor and Parish Staff,
I write to follow-up on Cardinal Hickey's letter to you outlining a parish-based
campaign designed to override the President's veto of the federal legislation which
banned the partial-birth abortion procedure.
Several items are enclosed for your use and information:
1. The inclusion of the "Prayer for our Nation- as part of Sunday liturgies
and the pulpit announcement (which is intended for use on the weekend of June
15/16) will introduce your parishoners to the campaign.
~
\
I
You might already have received your parish's prayer cards; if not, they will
be delivered to you within a few days. Numbers have been expanded to allow extra
cards for those parishes that wish to affix a prayer card to a page of the hymnal or
other parish publication. Placement of the prayer within the liturgy will vary from
parish to parish. Some will want to recite the prayer after the Prayer of the
Faithful; others might prefer to say it before the final blessing.
2. The "Special Alert" draft previews the effort scheduled the weekend of
June 29/30 to urge parishioners to communicate their support of the partial-birth
abortion ban to members of the House of Representatives. These alerts will be
delivered to you prior to the June 29/30 weekend. The most appropriate
method of distribution, whether as a bulletin enclosure or as a handout to each
family leaving church, is up to you.
3. A sample bulletin announcement encouraging participation in the
observance of Thursday, July 11, as a National Day of Prayer and Fasting for Life.
Every diocese, each parish and individual parishioners are encouraged to join in this
nationwide observance. The Pro-Life Activities Office of the National Conference
of Catholic Bishops has prepared materials for your use which will be sent to you
by the Archdiocese Pro-Life Office.
�.
-.
June 12, 1996
Page Two
Information about a September 7/8 postcard effort directed to U.S. Senators
will be sent to you in early August. While the override vote in the House is
expected to occur in mid-July, the Senate is not expected to vote until midSeptember. Our intention is to sustain interest in the partial-birth issue as long as
possible.
Allow me to express my gratitude to you for all your good work in bringing
the reality of the partial-birth abortion procedure to the attention of the Catholic
faithful.
Best regards.
Richard J. Dowli
Executive Directo
Enclosures
�rd'~~r~8YaMn
-
~d
Our Father, Giver of life,
~! entrust the United States of
America to Your loving care.
You are the rock on which
this nation was founded.
You alone are the true source
of our cherished rights to life, liberty
and the pursuit of happiness.
Reclaim this land for Your glory
and dwell among Your people.
Send Your Spirit to touch the hearts
of our nation's leaders.
Open their minds to the great worth
of human life and the responsibilities
that accompany human freedom.
Remind Your people that true happiness
is rooted in seeking and doing Your will.
Through the intercession of Mary
Immaculate, Patroness of our land,
grant us the courage to reject
the 'culture of death:
Lead us into a new millennium of life.
We ask this through Christ Our Lord.
C76men!
�Pulpit Announcement
June 15/16
Today, (your Church's name) joins parishes across the nation in launching an
"Override Campaign" - prayer, education and action directed toward a Congressional
override of President Clinton's veto ofa bill banning a particularly grotesque abortion
procedure bordering on infanticide - the partial birth abortion. Today we will begin by
praying together for our nation's return to a respect for all life. As override voting dates draw
near you will be asked to communicate with your Congressional representatives. The
Catholic community, through prayer and action, can make a difference.
Bulletin Announcement
(for the weekends preceding July 11)
National Day of Prayer and Fasting for Life
As part of the campaign to override the presidential veto of the Partial-Birth
Abortion Ban, Thursday, July 11 has been designated as a day of prayer and fasting for
life .. Every diocese, each parish and individual parishioners are encouraged to join in this
nationwide observance. Plan now to observe the day. We will keep you infonned as
infonnation about specific events becomes available.
�PKAFT
·"'.
..
',SPECIAL ALERT
PARTIAL-BIRTH ABORTION
4/5 INFANTICIDE - 1/5 ABORTION!
ThebabyisforcefuUytumedto
a breech position and delivered feet first, except for the head. Scissors are thrust into the base of the
infant's skull and then the brain is suctioned out, killing the infant. The delivery of the dead child is then
completed.
CONGRESS VOTED TO BAN THE PROCEDURE
PRESIDENT CLINTON VETOED THE BILL
CONGRESS CAN OVERRIDE THE VETO
Congress will have an opportunity to override the presidential veto. If two-thirds of the members of the
House and Senate vote to override the veto, the partial-birth abortion procedure wiU banned in our country.
~~~re;~;:~o~;~~~: =1~will;;;;=~E!
tall
Message:
your House Representative.
"Please vote to override the pre~idential veto ofHR 1833 - Partial-Birth Abortion Ban."
Pray for President Clinton and our U.S. representatives, that God wiU open their eyes to this horrible
abortion procedure and soften their hearts toward the unborn in our nation.
Check below for your representative's position on a ban of the partial-birth abortion procedure..
District
1 Wayne Gilchrist (R)
2 Robert L. Ehrlich, Jr. (R)
3 Benjamin L. Cardin (0)
4 Albert R. Wynn (0)
5 Steny H. Hoyer (D)
6 Roscoe G. Bartlett (R)
7 Elijah Cummings (0)
8 Constance A. Morella (R)
DC Eleanor Holmes-Norton
Position
For the ban
For the ban
Against the ban
Against the ban
Against the ban
For the ban
Elected after vote
Against the ban
Against the ban
Key: For the ban = Pro-Life Position
Phone
(202) 225-5311
(202) 225-3061
(202) 225-4016
(202) 225-8699
(202) 225-4131
(202) 225-2721
(202) 225-4741
(202) 225-5341
(202) 225-8050
.EAX
(202) 225-0254
(202) 225-3094
(202) 225-9219
(202) 225-8714
(202) 225-4300
(202) 225-2913
(202) 225-3178
(202) 225-1389
(202) 225-3002
Against the ban = Pro-Abortion Position
�.·
MORE ON fJAltTIAL-DlRTH AUOltTION
~
•
The partial-birth abortion procedure is typically done on babies who are 20 or more weeks' gestational
age, These are fully-formed, conscious infants who can feel pain.
•
While the bill makes an exception for cases where the life of the mother is endangered and no other
procedure would suffice, medical authorities have testified that this is never the case. Dr. Pamela E. Smith,
director of medical education in the Department of Obstetrics and Gynecology at Mt. Sinai Hospital in
Chicago has said, "There nre absolutely no obstetrical situations encountered in this country which require
a partially delivered hUlllan [etus to be destroyed to preserve the life or health of the mother."
Dr. Warren Hem, author ofthe most widely used textbook on abortion, Abortioll Practice, disputes
claims that tlus procedure can ever be the safest for women with late-term pregnancies. Indeed, he says that
'ng the baby to a breech position is "potentially dangerous" for the woman and could cause amniotic
~uid embolism.
~
•
Dr. William Rashbaum, a professor of obstetrics and gynecology in New York City, says that he and
Ius colleagues have performed partial-birth abortions "routinely since 1979. R It is not a rare procedure -600 to 2000 of these abortions are performed each year in this country.
•
Recent polls demonstrate that 71 % of American voters, and 78% of American women, support a ban
on this abhorrent procedure.
•
In the infamous case of Roe v Wade, the only Texas law which was not challenged was the one which
reads:
"Whoever shaJl, during parturition of the mother, destroy the vitality or life ill a child in
a state of beillg born alld before actual birth, which child wOlild othenvise have been
bom alive, shall be cOllfilled ill the pellitelltiary for life or for not less thall five years. "
It remains criminal in the state of Texas to kill a partially-delivered c!uld.
�THE WHITE HOUSE
WASHINGTON
April 25, 1996
MEMORANDUM FOR LEON PANETTA
FROM:
JACK QUINN V-V(;,"I<-
SUBJECT:
PARTIAL-BIRTH ABORTION
We may be asked, as we -explain our position on the Partial
Birth Act, whether our proposed exception for "serious adverse
health consequences" could include psychological harm. One
possible answer goes as follows:
No; that is a real red herring.
Psychological reasons can
never justify a doctor's decision to use the "partial birth"
procedure as a way to perform an abortion.
That's because
it can't posstbly matter to a woman's mental health whether
a doctor chooses one procedure rather than another.
And
that's all this legislation is about: not whether a woman
can have an abortion, but whether she can have this kind of
abortion. When that's the question, the woman's mental
health is and should be entirely irrelevant. No doctor can
make the choice of procedure on that basis.
To explain this answer a bit further: what we are arguing
about here is the justification for using a particular procedure
-- not the justification for choosing to have an abortion at all.
That's because the partial-birth legislation has to do only with
the choice of procedure and not with the availability of abortion
generally.
It prohibits the use of a particular procedure in
cases where an abortion is otherwise available.
Because the above is true, the whole issue of mental health
is a ruse.
Mental health (though it may be a reason for having
an abortion at all) just isn't a justification for choosing one
procedure from the range of alternatives: no one procedure is
better for the psyche than any other.
Thus, we can say with
certainty that the President's exemption -- which sets forth the
circumstances in which a doctor can choose this procedure rather
than another -- does not include the risk of psychological harm.
The downsides of using an answer along these lines are: (1)
Though the ultimate conclusion is easy to state, the rationale
behind it is more difficult.
If a person has to explain the
conclusion, this complexity could cause trouble.
(2)
The answer
suggests another question: Would the President allow a woman, in
the post-viability stage, to get some kind of abortion for mental
health reasons? Our answer says mental health is never a reason
for choosing one procedure over another; but that leaves open
whether it may be a reason for having an abortion at all.
In
suggesting that question, the answer may buy us trouble.
�THE WHITE HOUSE
WASH INGTON
April 25, 1996
MEMORANDUM FOR LEON PANETTA
FROM:
JACK QUINN VV<.=I<-
SUBJECT:
PARTIAL-BIRTH ABORTION
We may be asked, as we 'explain our position on the Partial
Birth Act, whether our proposed exception for "serious adverse
health consequences" could include psychological harm. One
possible answer goes as follows:
No; that is a real red herring.
Psychological reasons can
never justify a doctor's decision to use the "partial birth"
procedure as a way to perform an abortion. That's because
it can't possibly matter to a woman's mental health whether
a doctor chooses one procedure rather than another. And
that's all this legislation is about: not whether a woman
can have an abortion, but whether she can have this kind of
abortion. When that's the question, the woman's mental
health is and should be entirely irrelevant. No doctor can
make the choice of procedure on that basis.
To explain this answer a bit further: what we are arguing
about here is the justification for using a particular procedure
-- not the justification for choosing to have an abortion at all.
That's because the partial-birth legislation has to do only with
the choice of procedure and not with the availability of abortion
generally.
It prohibits the use of a particular procedure in
cases where an abortion is otherwise available.
Because the above is true, the whole issue of mental health
is a ruse. Mental health (though it may be a reason for having
an abortion at all) just isn't a justification for choosing one
procedure from the range of alternatives: no one procedure is
better for the psyche than any other.
Thus, we can say with
certainty that the President's exemption -- which'sets forth the
circumstances in which a doctor can choose this procedure rather
than another -- does not include the risk of psychological harm.
The downsides of using an answer along these lines are: (1)
Though the ultimate conclusion is easy to state, the rationale
behind it is more difficult.
If a person has to explain the
conclusion, this complexity could cause trouble.
(2)
The answer
suggests another question: Would the President allow a woman, in
the post-viability stage, to get some kind of abortion for mental'
health reasons? Our answer says mental health is never a reason
for choosing one procedure over another; but that leaves open
whether it may be a reason for having an abortion at all.
In
suggesting that question, the answer may buy us trouble.
�cc: ?/e-.. ~ if-
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THE WHITE HOUSE
WASH I NGTON
April 24, 1996
MEMORANDUM FOR JACK QUINN.
KAT HY WALLMAN!..
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FROM:
ELENA
SUBJECT:
PARTIAL-BIRTH
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Yesterday, I gave you proposed
language
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partial-birth abortion.
In addition, Todd received back from the~~
President a copy of the three-page letter Todd and I prepared
last week explaining the President's position. The President
_
~
wrote that it was an excellent letter and that we should
~~
"proceed."
All this raises the question what, if any, further
~.~
actl0n we should take on this matter:
Should we send up
~ l'
legislation? Release the letter (if so, to whom)? Both?
~ ~~
Nei ther? We should put these choices to the President; here are '" /"'''''1
some of my preliminary thoughts on the matter.
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There is something to be said for not doing anything at this
time.
For now, at least, the issue has subsided. Releasing the
~
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letter and/or sending up legislation will only revive press
~~"
1""'-' . interest in the controversy. More, sending up legislation will I v),
~ ~ anger the pro-choice community. And finally (perhaps most
f'~
importantlY)' sending up proposed legislation may involve the
President in some, very sticky questions about why he chose the
~:;
language he did, what it means, and what amendments he would
~
accept.
If (and this is an if) Congress has any interest in
negotiating on the bill, the President might find himself facing
~
some very difficult choices.
(For example, Congress could
~(r redefine the proposed health exception to make it much narrower
~
and then ask why the President will not accept Congress's version
~.
of the exception.)
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On the other hand, sending up legislation may be the only
way to show that the President is serious about the position he
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has taken. Given that this issue will not disappear, the
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President should try to position himself so as to minimize the
.~,
damage from it. That means backing up rhetoric with action -- in~ I~
much the same way as it made sense to submit a balanced budget
I
r~1
rather than just saying the President favored deficit reduction. ~.( 1
Submitting legislation, though again raising the issue to the
1l ~
surface, will provide the President with the long-term cover he i~
needs on this issue. And if Congress is willing to negotiate,
,
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perhaps that is all to the good -- because perhaps there is a
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comprom~se.position ~hat the President would favor and that w?Ul~~,
turn thlS lssue to hlS advantage.
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If we do decide to send up legislation, I would cover lt
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with a letter to Congress similar to the one Todd and I prepared,~ J
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explaining the President's overall position on this issue and his
proposed health exception.
I do not think it makes sense to
release the letter without sending up legislation; this would
provoke renewed interest in the issue without particularly
enhancing the president's credibility.
Likewise, I do not think
it makes sense to send up legislation without also issuing a
letter; this would ignore an opportunity to provide a clear and
cogent explanation of why the President vetoed the original bill
and why he is now offering an amended version.
�"
'.
THE WHITE HOUSE
WASHINGTON
April 24, 1996
MEMORANDUM FOR JACK QUINN
KATHY WALLMAN
G,/L--
FROM:
ELENA KAGAN
SUBJECT:
PARTIAL-BIRTH ABORTION
Yesterday, I gave you proposed legislative language on
partial-birth abortion.
In addition, Todd received back from the
President a copy of the three-page letter Todd and I prepared
last week explaining the President's position. The President
wrote that it was an excellent letter and that we should
"proceed." All this raises the question what, if any, further
action we should take on this matter:
Should we send up
legislation? Release the letter (if so, to whom)? Both?
Neither? We should put these choices to the President; here are
some of my preliminary thoughts on the matter.
There is something to be said for not doing anything at this
time.
For now, at least, the issue has subsided.
Releasing the
letter and/or sending up legislation will only revive press
interest in the controversy. More, sending up legislation will
anger the pro-choice community. And finally (perhaps most
importantly), sending up proposed legislation may involve the
President in some very sticky questions about why he chose the
language he did, what it means, and what amendments he would
accept.
If (and this is an if) Congress has any interest in
negotiating on the bill, the President might find himself facing
some very difficult choices.
(For example, Congress could
redefine the proposed health exception to make it much narrower
and then ask why the President will not accept Congress's version
of the exception.)
On the other hand, sending up legislation may be the only
way to show that the President is serious about the positiQn he
has taken .. Given that this issue will not disappear, the
President should try to position himself so as to minimize the
damage from it.
That means backing up rhetoric with action -- in
much the same way as it made sense to submit a balanced budget
rather than just saying the President favored deficit reduction.
Submitting legislation, though again raising the issue to the
surface, will provide the President with the long-term cover he
needs on this issue. And if Congress is willing to negotiate,
perhaps that is all to the good -- because perhaps there is a
compromise position that the President would favor and that would
turn this issue to his advantage.
If we do decide to send up legislation, I would cover it
with a letter to Congress similar to the one Todd and I prepared,
�..
~
explaining the President's overall position on this issue and his
proposed health exception. I do not think it makes sense to
release the letter without sending up legislation; this would
provoke renewed interest in the issue without particularly
enhancing the president's credibility. Likewise, I do not think
it makes sense to send up legislation without also issuing a
letter; this would ignore an opportunity to provide a clear and
cogent explanation of why the President vetoed the original bill
and why he is now offering an amended version.
�THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR LEON PANETTA
CHIEF OF STAFF
FROM,
KATIlLEEN WALLMAPj{;J
SUBJECT:
PARTIAL BIRTH ABORTION ACT
DATE:
FEBRUARY 16, 1996
Pursuant to our meeting this morning, here are some talking points concerning the
constitutional infirmity of Option 1 and why Option 2 is the best way to reconcile the desire
for limits on the availability of the partial birth abortion procedure with Roe v. Wade.
With respect to the letter, I believe that the bracketed language should be restored
because it makes the letter more consistent with Option 2. More important than changing the
letter, however, is guidance from the President that he agrees that Option 1 should not be
embraced because of its constitutional infirmity, and that Option 2 suffices to effect his will
on this difficult issue. This guidance is important because, whatever the final wording of the
letter, we will need to be prepared to explain to the pro-choice groups, who will call
promply upon release of this letter, what it means in terms of Roe v. Wade.
I also wanted to remind you that, as stated in the February 2nd memorandum, the
Office of Legal Counsel at Justice agrees with the White House Counsel's Office that Option
1 is unconstitutional: OLC also thinks that Option 2 is unconstitutional, but White House
Counsel's Office disagrees. We believe that Option 2 is one of three options that have been
presented to the President that are at least arguably constitutional.
Please let me know if you need anything further.
cc:
Martha Foley
Harold Ickes
Elena Kagan
Evelyn Lieberman
Nancy-Ann Min
Jack Quinn
Carol Rasco
Todd Stem
Melanne Verveer
Marilyn Yager
�,?
...
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1.
Why Option 1 is unconstitutional.
Option 1 allows a doctor to use the partial birth abortion procedure in an abortion, whether pre- or
post-viability, only when the abortion is necessary to preserve the life of the mother or prevent
serious adverse health consequences to her -- that is, where tpe pregnancy itself poses a threat to
the life or serious health interests of the mother and must be terminated to end that threat.
This means that a doctor could not elect to use the partial birth abortion procedure in the following
circumstances:
A woman in her tenth week of pregnancy decides to have an abortion. It is an elective
abortion; the pregnancy presents no risk to her life or health However, the doctor
determines that the use of the partial birth abortion procedure, rather than some other
procedure, is necessary to avoid serious adverse consequences to the woman's health.
Under Option 1, the doctor may not use the procedure. And the woman could not have a
safe abortion, because th~ only method that the doctor judges to be safe is not pennitted.
Roe v. Wade broadly protects a woman's right to choose during these early, pre-viability weeks of
pregnancy. To embrace an option that would prevent a woman, as in the above example, from
having a safe elective ,abortion altogether during the pre-viability period will be viewed by prochoice groups as an extremely significant undercutting of the President's previously and often stated
commitment to Roe v. Wade. This will cause tumult in that community and in the President's
relations with them.
2.
Option 2 is the best way to reconcile the desire for limits on the use of the procedure
with Roe v. Wade.
Option 2 allows a doctor to use the partial birth abortion procedure -post-viability: only when the abortion is necessary to end a pregnancy that poses a threat to
the life of the woman or presents serious adverse consequences to her health (identical to
Option 1); and
pre-viability: both (i) when the abortion is necessary to end a pregnancy that poses a threat
to the life or serious health interests of the mother; AND (ii) when the abortion is perfonned
for "elective" reasons, but the doctor determines that he must use the partial birth abortion
procedure to avoid a threat to the life or serious health interests of the mother.
Option 2 solves the difficulty presented in the pre-viability scenario described above, because the
doctor would be permitted to use the partial birth abortion procedure, based on his detennination
that it is the only method that will avoid 'a serious injury to the woman's health.
Option 2 thus allows the President to endorse a position that says that this procedure may never be
used unless necessary to avoid risk to life or serious health consequences, without raising the major
constitutional problems raised by Option 1. or raising questions about the consistency of his
commitment to upholding Roe v. Wade.
�THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR JACK QUINN AND ELENA KAGAN
FROM:
KATHLEENWALLM~
SUBJECT:
POSITION ON LATE TERM ABORTION
DATE:
APRIL 22, 1996
In the preparatory session for Secretary Shalala's appearance for the Brinkley show, it
occurred to me that we need a succinct way of describing where the President is on this issue
and why his position is not the equivalent of partial birth abortion on demand. I would
appreciate your reaction to the following as a summation that could be used by people who
are called upon to talk about this issue for the President.
,
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~ "Qte P~sident does not support late'term abortion on demand. and does H6t support
,/
us.e o~s procedu€}on demand. ~He supports making it available.to mothers who,
Without It, would die or suffer serIOUS adverse consequences to their health. If th~
proponents of the legislation do not believe that the incorporating the term "serious -adverse health consequences" into the legislation is sufficient to rule out the use of
this procedure on demand, we welcome the opportunity to talk with them.
/
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Another difficult question came up at the briefmg session: "Does the President
believe that psychological injury could be a serious adverse health consequence?" We need
to develop an answer to this question. Elena, IS there learning from the choice groups or in:
the case law about whether this is a real issue or a made up one?
:
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�tHE WHITE HOUSE
WASH INGTON
MEMORANDUM FOR JACK QUINN AND ELENA KAGAN /
FROM:
KATHL~EN WALLM~
SUBJECT:
POSITION ON LATE TERM ABORTION
DATE:
APRIL 22, 1996
In the preparatory session for Secretary Shalala' s appearance for the Brinkley show, it
occurred to me that we need a succinct way of describing where the President is on this issue
and why his position is not the equivalent of partial birth abortion on demand. I would
appreciate your reaction to the following as a summation that could be used by people who
are called upon to talk about this issue for the President.
The President does not support late term abortion on demand, and does not support
use of this procedure on demand. He supports making it available to mothers who,
without it, would die or suffer serious adverse consequences to their health. If the
proponents of the legislation do not believe that the incorporating the term "serious
adverse health consequences" into the legislation is sufficient to rule out the use of
this procedure on demand, we welcome the opportunity to talk with them.
Another difficult question came up at the briefing session: "Does the President
believe that psychological injury could be a serious adverse health consequence?" We need
to develop an answer to this question. Elena, is there learning from the choice groups or in
the case law about whether this is a real issue or a made up one?
t,.J1
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THE WHITE HOUSE
WASHI NGTON
January 29, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
JACK QUINN
SUBJECT:
PARTIAL BIRTH ABORTION ACT
You have asked for a response to a memo from Lee Strobel
urging you to sign the partial birth abortion act. The memo you
received argues: (1) that many partial birth abortions are
performed in "routine" cases, where there is no life or safety
issue; (2) that even in non-routine cases, there are always
equally sound medical alternatives to the partial birth
procedure; and (3) that some of the non-routine cases highlighted
by pro-choice groups (notably, the Coreen Costello and Viki
Wilson cases) would not be affected by the legislation.
Each of
these arguments is not quite accurate, for the reasons described
below. At bottom, even acknowledging that medical opinion on
this procedure is divided, the best available information, viewed
in light of Supreme Court law, suggests that a veto of the bill
is appropriate on grounds that it does not sufficiently protect
the health of the woman.
1.
With regard to the claim that many partial birth abortions
are performed in routine cases, you have objected -- and should
continue to object -- to the use of this procedure in any
"routine" case, not involving a woman's life or safety.
If the
bill were amended as you have insisted it be, such that you could
sign it, then the procedure would be banned in routine cases
i.e., where the life or health of the mother is not at risk.
2.
Doctors have offered a range of different views as to
whether and when use of the partial birth procedure is medically
necessary or appropriate. Some doctors, as the memo to you
indicates, believe that alternative medical procedures are always
as safe or safer than the partial birth procedure. Other doctors
claim that the partial birth procedure is often the safest
surgical alternative for women late in pregnancy. These other
doctors, among other things, say that the procedure poses the
least risk to a woman's future reproductive capacity.
A federal district court in Ohio recently addressed this
matter in ruling on the constitutionality of a state statute
banning partial birth procedures. After six days of hearings,
during which several medical experts testified on each side of
the issue, the district court concluded that the partial birth
procedure "appears to pose less of a risk to maternal health"
than do other procedures available late in pregnancy.
Given the state of medical evidence on this subject, it
�,
seems appropriate.to leave to doctors themselves the decision
whether the procedure is medically necessary.
The question the
Act presents is whether to prevent such doctors from acting on a
judgment that the procedure is the safest available in a
particular circumstance.
In this regard, the Supreme Court has
recognized that abortion regulations must "allow the attending
physician the room he needs to make his best medical judgment."
Such an approach, which allows the medical community to make
clearly medical decisions, seems the surest way to protect the
health of women.
3.
The facts relating to the Costello and Wilson cases are
somewhat uncertain, but this uncertainty tends to reinforce,
rather than undermine, the Administration's current position on
the Partial Birth Act. The Strobel memo claims that Coreen
Costello did not have a partial birth procedure as defined by the
Act.
Some doctors would support this claim; others would dispute
it. There is enormous uncertainty within the medical community
as to exactly which procedures this Act covers.
The Act does not
use any medically recognized terms, and although the definition
in the Act of "partial birth abortion" may seem clear to a
layman, many doctors say that they do not know how it would apply
to particular medical procedures. The dispute over whether
Costello's procedure was covered by the Act thus points to a real
problem with the legislation: its vagueness and lack of clarity
as applied to the real world of medicine.
Similarly, it is not clear whether the Costello and Wilson
procedures would fall within the bill's current "life of the
.mother" exemption.
Even if Costello and Wilson were in lifethreatening (as opposed to health-threatening) pregnancies, which
is itself unclear, a partial birth abortion may not have been
"necessary" to save their lives, as the current exemption
requires. Under this exemption, it is apparently not enough that
a woman is in a life-threatening pregnancy and that her doctor
has determined that the partial birth procedure is the most
medically appropriate; a partial birth procedure falls within the
exemption only if that procedure, and no other, is capable of
saving the woman's life.
No one knows -- indeed, given the state
of medical evidence on these matters, it seems impossible to know
-- whether Costello or Wilson (or any other woman in their
situation) would get any relief from this very limited exemption.
In any event, it seems indisputable that this bill, if it
passes, will operate in certain cases to prevent women from
receiving the medical procedures that their doctors believe to be
the safest for them. As you know, this result is forbidden by
current constitutional law, which insists that at every stage of
a pregnancy, the state's interest in regulating abortion yield to
preservation of a woman's health.
It is this infirmity alone
that impels me to advise you that the proposed Act does not pass
constitutional muster.
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THE
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WAS H I N GTO N
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January 29,
:::~NDUMJ:: :::N~SIDENT
SUBJECT:
PARTIAL BIRTH ABORTION ACT
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Str~bel~A ~)1
You have asked for a response to a memo from Lee
urging you to sign the partial birth abortion act. The memo yo~~
received argues: (1) that many partial birth abortions are
~,~
performed in "routine" cases, where there is no life or safety
issue; (2) that even in non-routine cases, there are always
~I
equally sound medical alternatives to the partial birth
vG
procedure; and (3) that some of the non-routine cases highlighted
~f
by pro-choice groups (notably, the Coreen Costello and Viki
Wilson cases) would not be affected by the legislation.
Each of
these arguments is not quite accurate, for the reasons described
below. At bottom, even acknowledging that medical opinion on
this procedure is divided; the best available information, viewed
in light of Supreme Court law, suggests that a veto of the bill
is appropriate on grounds that it does not sufficiently protect
the health of the woman.
1.
With regard to the claim that many partial birth abortions
are performed in routine cases, you have objected -- and should
continue to object -- to the use of this procedure in any
"routine" case, not involving a woman's life or safety.
If the
bill were amended as you have insisted it be, such that you could
sign it, then the procedure would be banned in routine cases
i.e., where the life or health of the mother is not at risk.
2.
Doctors have offered a range of different views as to
whether and when use of the partial birth procedure is medically
necessary or appropriate. Some doctors, as the memo to you
indicates, believe that alternative medical procedures are always
as safe or safer than the partial birth procedure. Other doctors
claim that the partial birth procedure is often the safest
surgical alternative for women late in pregnancy.
These other
doctors, among other things, say that the procedure poses the
least risk to a woman's future reproductive capacity.
A federal district court in Ohio recently addressed this
matter in ruling on the constitutionality of a state statute
banning partial birth procedures. After six days of hearings,
during which several medical experts testified on each side of
the issue, the district court concluded that the partial birth
procedure "appears to pose less of a risk to maternal health"
than do other procedures available late in pregnancy.
Given the state of medical evidence on this subject, it
�,.
seems appropriate to leave to doctors themselves the decision
whether the procedure is medically necessary.
The question the
Act presents is whether to prevent such doctors from acting on a
judgment that the procedure is the safest available in a
particular circumstance. In this regard, the Supreme Court has
recognized that abortion regulations must "allow the attending
physician the room he needs to make his best medical judgment."
Such an approach, which allows the medical community to make
clearly medical decisions, seems the surest way to protect the
health of women.
3.
The facts relating to the Costello and Wilson cases are
somewhat uncertain, but this uncertainty tends to reinforce,
rather than undermine, the Administration's current position on
the Partial Birth Act. The Strobel memo claims that Core en
Costello did not have a partial birth procedure as defined by the
Act.
Some doctors would support this claim; others would dispute
it. There is enormous uncertainty within the medical community
as to exactly which procedures this Act covers. The Act does not
use any medically recognized terms, and although the definition
in the Act of "partial birth abortion" may seem clear to a
layman, many doctors say that they do not know how it would apply
to particular medical procedures. The dispute over whether
Costello's procedure was covered by the Act thus points to a real
problem with the legislation: its vagueness and lack of clarity
as applied to the real world of medicine.
Similarly, it is not clear whether the Costello and Wilson
procedures would fall within the bill's current "life of the
mother" exemption.
Even if Costello and Wilson were in lifethreatening (as opposed to health-threatening) pregnancies, which
is itself unclear, a partial birth abortion may not have been
"necessary" to' save their lives, as the current exemption
requires.
Under this exemption, it is apparently not enough that
a woman is in a life-threatening pregnancy and that her doctor
has determined that the partial birth procedure is the most
medically appropriate; a partial birth procedure falls within the
exemption only if that procedure, and °no other, is capable of
saving the woman's life. No one knows -- indeed, given the state
of medical evidence on these matters, it seems impossible to know
-- whether Costello or Wilson (or any other woman in their
situation) would get any relief from this very limited exemption.
In any event, it seems indisputable that this bill, if it
passes, will operate in certain cases to prevent women from
receiving the medical procedures that their doctors believe to be
the safest for them. As you know, this result is forbidden by
current constitutional law, which insists that at every stage of
a pregnancy, the state's interest in regulating abortion yield to
preservation of a woman's health.
It is this infirmity alone
that impels me to advise you that the proposed Act does not pass
constitutional muster.
�THE WHITE HOUSE
WASHINGTON
January 22, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
JACK QUINN
SUBJECT:
PARTIAL-BIRTH ABORTION BAN
You have raised questions about the Partial Birth
Abortion Ban Act -- most notably, about when the procedure
prohiRited in the Act is used.
Hard facts on such questions
are d'ifficult to find.
The interest groups use wildly
different statlstics, and the medical community has largely
declined comm~nt on these issues.
But the best available
information, when viewed in light of current Supreme Court
precedent, indicates that the current Administration position
-- opposing the bill because it does not sufficiently protect
the health of the woman -- is correct.
The number of partial birth abortions performed each
year is very small. Allor almost all partial birth
abortions occur after twenty weeks of pregnancy. About
13,000 (of 1.5 million) abortions each year occur at this
stage.
Partial birth abortions probably account for between
400 and 600 of these 13,000 abortions, although some doctors
have warned that the Act, because worded vaguely, may apply
to more.
There is little firm data on the circumstances in which
these abortions are performed.
The pro-choice gro~ps claim'-__J
that almost all partial birth abortions (like almost all
late-term abortions generally) are performed to protect the
life or health (including future reproductive capacity) of
the woman or in cases of severe fetal deformity.
Pro-life
groups claim that many of these abortions are performed in
other kinds of cases. One doctor who performs these
abortions has said that up to 80% of his procedures are
"elective," but this may means only that they are nonemergency surgery; the procedures still may be necessary to
protect the life or health of the woman.
(In addition, this
doctor performs only pre-viability partial-birth abortions,
which are comparatively rare and which are much more likely
to be "elective.") The leading medical groups have not
offered any statistics on these matters.
The most that any
medical group has said is that the partial birth procedure
sometimes best protects the life and health of the woman and
that doctors often choose the procedure for that reason.
Whatever the f~cts on the circumstances in which the
procedure is used, the Administration has objected to the
bill only because it prohibits using the partial birth
�-'
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procedure to protect the life or health of the woman.
If the
Administration's position were accepted, Congress could pass
legislation banning any partial birth abortion not meant to
protect the life or health of the woman -- roughly speaking,
in layman's language, any "elective" partial birth abortion.
In sum, you can object to this bill because it applies to
other than purely elective abortions, and you can make clear
that you would support a bill that, by including a properly
drafted life and health exception, applied only to "elective"
abortions.
As Walter Dellinger has opined, an objection of this
kind is constitutionally required.
Even in the postviability period, the government's interest in regulating
abortion must yield to preservation of a woman's life and
health. This means both that the government may not deny
access to abortion to a woman whose life or health is
threatened by pregnancy and that the government may not
regulate access to abortion in a manner that effectively
requires a woman to bear an increased medical risk from the
procedure.
Because the Act does not allow partial birth
abortions when such procedures will most fully protect a
woman's health, it fails to satisfy this standard.
Descriptions of the partial birth procedure should make
anyone uncomfortable (though other abortion procedures also
can be described in a grizzly manner).
Because of the
procedure's disturbing qualities, I do not recommend that you
object to the Act on any grounds suggestive of the position
that all regulation of the procedure is improper.
I
recommend that you instead object to the Act on the narrow
ground that this particular regulation fails to protect
sufficiently the health of the woman and indicate your
willingness to sign a bill that includes such protection.
�THE WHITE HOUSE
WASHINGTON
\
January
MEMORANDUM FOR THE PR\snDENT
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FROM:
JACK QUINN
-
SUBJECT:
PARTIAL-BIRTH ABORTION BAN
You have raised questions about the Partial Birth
Abortion Ban Act -- most notably, about when the procedure
prohibited in the Act is used.
Hard facts on such questions
are difficult to find.
The interest groups use wildly
different statistics, and the medical community has largely
declined comment on these issues.
But the best available
information, when viewed in light of current Supreme Court
precedent, indicates that the current Administration position
-- opposing the bill because it does not sufficiently protect
the health of the woman - - i s correct.
The number of partial birth abortions performed each
year is very small. Allor almost all partial birth
abortions occur after twenty weeks of pregnancy. About
13,000 (of 1.5 million) abortions each year occur at this
stage.
Partial birth abortions probably account for between
400 and 600 of these 13,000 abortions, although some doctors
have warned that the Act, because worded vaguely, may apply
to more.
II
There is little firm data on the circumstances in which
these abortions are performed. The pro-choice groups claim
that almost all partial birth abortions (like almost all
late-term abortions generally) are performed to protect the
life or health (including future reproductive capacity) of
the woman or in cases of severe fetal deformity.
Pro-life
groups claim that many of these abortions are performed in
other kinds of cases. One doctor who performs these
abortions has said that up to 80% of his procedures are
"elective," but this may means only that they are nonemergency surgery; the procedures still may be necessary to
protect the life or health of the woman.
(In addition, this
doctor performs only pre-viability partial-birth abortions,
which are comparatively rare and which are much more likely
to be "elective.") The leading medical groups have not
offered any statistics on these matters. The most that any
medical group has said is that the artial birth procedure
sometim
otects the I'
It
the woman and
that doctors often choose the procedure for that reason.
Whatever the facts on the circumstances in which the
procedure is used, the Administration has objected to the
bill only beciuse it prohibits using the partial birth
�~'
~
procedure to protect the life or health of the woman.
If the
Administration's position were accepted, Congress could pass
legislation banning any partial birth abortion not meant to
protect the life or health of the woman -- roughly speaking,
in layman's language, any "elective" partial birth abortion.
In sum, you can object to this bill because it applies to
other than purely elective abortions, and you can make clear
that you would support a bill that, by including a properly
drafted life and health exception, applied only to "elective"
abortions.
As Walter Dellinger has opined, an objection,of this
kind is constitutionally required.
Even in the postviability period, the government's interest in regulating
abortion must yield to preservation of a woman's life and
health. This means both that the government may not deny
access to abortion to a woman whose life or health is
threatened by pregnancy and that the government may not
regulate access to abortion in a manner that effectively
requires a woman to bear an increased medical risk from the
procedure.
Because the Act does not allow partial birth
abortions when such procedures will most fully protect a
woman's health, it fails to satisfy this standard.
Descriptions of the partial birth procedure should make
anyone uncomfortable (though other abortion procedures also
can be described in a grizzly manner).
Because of the
procedure's disturbing qualities, I do not recommend that you
object to the Act on any grounds suggestive of the position
that all regulation of the procedure is improper.
I
recommend that you instead object to the Act on the narrow
ground that this particular regulation fails to protect
sufficiently the health of the woman and indicate your
willingness to sign a bill that includes such protection. .
�THE WHITE HOUSE
WASHINGTON
April 11, 1996
MEMORANDUM FOR JACK QUINN
KATHY WALLMAN
G:IC-
FROM:
ELENA KAGAN
SUBJECT:
FUTURE ABORTION BILLS?
It seems possible to me that Congress could present the
President with one or both of the following pieces of abortion
legislation:
1.
A bill prohibiting all post-viability abortions except those
necessary to protect life or health; and/or
2. A bill prohibiting all partial-birth abortions (post- or previability) except those necessary to protect life or health.
Each bill would define the health exception as narrowly as
possible -- say, to apply only when the abortion itself (not, in
the case of the partial-birth legislation, the particular
procedure) is necessary to prevent serious and permanent physical
(not psychological) injury.
Of course, the Republicans may not wish to give the
President the opportunity to sign these bills. But if I were
them, I'd think pretty seriously about placing the President in
this position.
Something to think about?
�..'Ifi.
.. ...
February 15, 1996
MEMORANDUM FOR JACK QUINN
FROM:
ELENA KAGAN
SUBJECT:
PARTIAL BIRTH ABORTION ACT
As you recall, Leon suggested to you a few days ago that the
President does not want to distinguish at all between the previability and post-viability stages of pregnancy in regulating
partial birth abortions.
I am not sure why the President would
resist this distinction; he, the public, and the Court all have
accepted the meaningfulness of this distinction in a wide variety
of contexts.
But if he insists that no distinction be made,
there seem to be only two possible Administration positions.
1.
The first position is set forth as Option 1 in our February
2 memo. This approach would allow use of the partial birth
procedure, whether in the pre-viability or post-viability stage,
in only one circumstance: where the abortion is performed because
the pregnancy poses a threat to the life or the serious health
interests of the woman.
The problem with this approach is twofold.
First, it is
unconstitutional, because it prohibits use of the partial birth
procedure in any pre-viability case in which the woman desires
the abortion for non-health related reasons, even if the partial
birth procedure (as compared to other procedures) is necessary to
protect her from serious adverse health consequences.
Second,
the groups will go crazy, exactly because the approach effects
this broadscale pre-viability prohibition.
2.
The second position is not offered in our February 2 memo.
This approach would allow use of the partial birth procedure,
whether in the pre-viability or post-viability stage, in two
circumstances: (a) as above, where the abortion is performed
because the pregnancy poses a threat to the life or the serious
health interests of the woman; or (b) where the abortion is
performed for non-health-related reasons, but the use of the
partial birth procedure (as opposed to other abortion procedures)
is necessary to avert a threat to the life or the serious health
interests of the woman.
In the vast majority of states, this approach effectively
would distinguish between the pre- and post-viability stages
because circumstance (b) above would have no actual consequence
after viability.
This is because most states prevent a woman
from getting any post-viability abortion (partial birth or any
other) for non-health related reasons.
Whatever the scope of the
federal law on partial birth abortions, such broadscale state
�restriction of post-viability abortions would continue.
In these
states, then, the position outlined here would operate in the
exact same way as (though look different than) Option 2 in our
February 2 memo: it would allow partial birth abortions postviability in circumstance (a) and pre-viability in circumstances
(a) and (b).
In these states, of course, the real effect of the federal
law would be on pre-viability partial birth abortions.
After
viability, such abortions would be available exactly where they
are today: where the pregnancy endangers the woman's life or
health. But before viability, such abortions would be available
only where there is some health link; today, they are available
in any case at all, regardless whether either the abortion itself
or the election of the particular procedure is medically
necessary.
In the small minority of states that do allow post-viability
abortions for non-health-related reasons, the approach outlined
here would operate identically on pre- and post-viability partial
birth abortions.
That is, the approach would allow partial birth
abortions both before and after viability in circumstances (a)
and (b).
In these states, the federal law would cut into the
incidence of both pre-viability and post-viability partial birth
abortions. Whereas today a woman always can get such an abortion
(whether pre- or post-viability), the federal law will limit the
availability of such abortions (again, either pre- or postviability) to cases in which either the abortion itself or the
election of the particular procedure is medically necessary.
This approach is far preferable to the first position set
out above.
First, it does not suffer from the constitutional
defect associated with the first position because it allows
partial birth abortions where use of that particular procedure
(even if not the abortion itself) is medically necessary.
Second, it will not make the groups go crazy, again because it
fully protects the right of the woman to any medically necessary
procedures.
If we have to treat pre- and post-viability abortions alike,
then, this is how we should do it: by allowing use of the partial
birth procedure whenever either the abortion or the election of
the particular procedure is medically necessary.
Stated in
statutory language (as in our other memo), this option goes as
follows:
The prohibition of the Act shall not apply to any abortion
if, in the medical judgment of the attending physician, the
abortion or election of particular method of abortion is
necessary to preserve the life of the woman or avert a
serious adverse health consequence to the woman.
�I
January 31, 1996
MEMORANDUM FOR LEON PANETTA
FROM:
JACK QUINN
SUBJECT:
BOXER AMENDMENT
The Boxer Amendment protects the use of "partial birth
abortions" in the following circumstances:
•
at any time prior to the viability of the fetus
•
after viability when the abortion is necessary to preserve
the life of the woman or avert serious adverse health
consequences to the woman.
The protection the Boxer Amendment gives to the partial
birth procedure may go beyond the President's current position in
the following way:
•
The Boxer Amendment protects all pre-viability partial birth
abortions, even when the abortion is being performed for
non-health-related reasons and there are equally safe
medical procedures available.
•
The President may wish to allow regulation of partial birth
abortions when there are no health issues involved -- that
is, when the abortion is not being performed for healthrelated reasons and when there are equally safe medical
procedures available.
•
Note, however, that a decision to allow regulation of
partial birth abortions when there are no health issues
involved would raise a constitutional question: whether such
a regulation imposes an "undue burden" on a woman's ability
to obtain an abortion. It is not clear how the courts would
decide this question.
The Boxer Amendment raises one constitutional question of
its own:
•
The Amendment protects partial birth abortions after
viability only to preserve life or avert "serious" health
consequences.
•
The Court has always insisted that abortions be protected
when necessary to protect the health of the woman: it has
never used the word "serious" or any other qualifier. A
requirement of serious risk may be implicit in the Court's
statements. But this is currently an open question.
�THE PRESmENT H{:S Sf-It.
THE WHITE HOUSE
L.; / ' \ /
CII,c
WASHINGTON
96APR 8 ?8 : 51
1996
MEMORANDUM FOR THE
~DENT
FROM:
TODD STERN70J.
SUBJECT:
Veto of H.R. 1833 -- "Partial Birth" Abortion bill
Your advisors (Melanne, George, Counsel's Office, DPC and others)
seek your guidance on how you want to handle the veto of this
bill, which will probably be scheduled for Thursday (last day for
action is April 17). All agree that the veto event should be
relatively low-key, but three different options have been
discussed:
Option 1: You sign privately. No press.
(There could be a White
House photo.) This has the advantage of keeping the veto, which
is highly unpopular with pro-life and religious groups, as low
key as possible. The disadvantages are that (i) it may look as
though you are trying to hide the veto -- something that won't
work anyway and won't look forthright; and (ii) by not speaking
orally to the press, you will give your opponents an advantage in
defining the issue rather than getting your own message out.
option 2: You first meet privately with a woman or, if possible,
a couple who have a powerful story to tell. White House photo
only. You then sign the veto message in the Oval alone, before
the pool. In your brief remarks, you would reference your
conversation with them.
Public Liaison has been in touch with a
number of women who have moving stories to tell -- women, for
example, who were staunchly pro-life but carne to see, through
their own painful experience, that, on rare and painful
occasions, this procedure is necessary to save a women's life or
spare her truly serious adverse consequences to her health.
option 3: You meet with the couple privately, then bring them
into the Oval Office, where they witness you sign the veto
message before the pool, but do not speak. This option goes the
furthes't in putting a human face on why you are vetoing the bill.
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THE WHITE HOUSE
WASHINGTON
(
February 2, 1996
MEMORANDUM FOR THE PRESIDEN~
FROM:
LEON PANETT~CK QUINN~d(
GEORGE STEPHANOPOULOS, NANCY-ANN MIN
SUBJECT:
PARTIAL BIRTH ABORTION ACT
Detailed below are four ways of amending the .Partial Birth
Abortion Act. They differ with respect to (1) the meaning and
appropriate scope of a life and health exception and (2) the
permissibility of imposing any restrictions on use of the
procedure in the pre-viability setting. Of course, we need not
propose any statutory language. But these formulations will help
to bring into sharper focus the question of when the regulation
of partial birth abortions is impermissible.
The Office of Legal Counsel of the Justice Department
believes that only one of the following proposals meets
constitutional standards -- namely, Option 4 (the option, of the
ones presented here, allowing greatest use of the partial birth
procedure). The White House Counsel's Office disagrees,
believing that Options 2, 3, and 4 are all at least arguably
constitutional. On the other hand, the White House Counsel's
Office agrees with OLCthat Option 1 is unconstitutional because
it prevents a doctor from using the partial birth procedure in
any previability case in which the woman desires the abortion for
non-health related reasons, even if the partial birth procedure
(as compared to other procedures) is necessary to protect her
from serious adverse health consequences.
Attached to this memo is a draft of a letter, which sets out
your basic position on the Partial Birth Abortion Act.
The
penultimate paragraph of the letter, in which you say what kind
of bill you could sign, is most consistent with Option 1 in the
absence of the bracketed words and is most consistent with Option
2 when those words are included.
*
1.
*
*
*
*
The prohibition of the Act shall not apply to any abortion
performed where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This option allows use of the partial birth procedure, whether in
the pre-viability or post-viability stage, in only one
circumstance: where the abortion is performed because the
'pregnancy poses a threat to the life or the serious health
interests of the woman.
,
!
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�2.
The prohibition of the Act shall not apply to any abortion
if, in the medical judgment of the attending physician, the
abortion (or, in the case of pre-viability abortions, the
abortion or election of particular method of abortion) is
necessary to preserve the life of the woman or avert a
serious adverse health consequence to the woman.
This option allows use of the partial birth procedure in the
post-viability stage in the same circumstance described in Option
1: where the abortion is performed because the p~egnancy poses a
threat to the life or the serious health interests of the woman.
It allows use of the of the partial birth procedure in the previability stage in that circumstance and another: where the
abortion is performed for non-health related ("elective")
reasons, but the use of the partial birth procedure (as opposed
to other abortion procedures) is necessary to avert a threat to
the life or the serious health interests of the woman.
3.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This is the Boxer Amendment.
It allows use of the partial birth
procedure in the post-viability stage in the same circumstance
described in Option 1: where the abortion is performed because
the pregnancy poses a threat to the life or the serious health
interests of the woman.
It allows use of the partial birth
procedure in the pre-viability stage in any case at all,
regardless whether the abortion is performed for health-related
reasons and also regardless whether in "elective" cases, the use
of the partial birth procedure (as opposed to other procedures)
is medically necessary.
4.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert an adverse health consequence to the
woman. _.
This option allows use of the partial birth procedure in the
post-viability stage where the abortion is performed because the
pregnancy poses a threat to the life or the health interests of
the woman.
Note that in this formulation, the adverse health
. consequences to the woman do not have to be "serious." The
op-tion a:llows use of the partial birth procedure in the previability stage in any case at all, as does Option 3.
This is
the option preferred by the Justice Department's OLe.
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THE WHITE HOliSE
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MR~IDENT:
February 5, 1996
Attached is a memo from Leon, Jack, George and NancyAnn Min on the partial birth abortion bill, setting forth four
policy options and attaching a proposed letter to Senator
Hatch. DOJ believes that only Option 4 is. constitutional,
while our Counsel's office believes any of Options 2-4 are
constitutionally sound. In essence these are the options:
.. 1. No use of this procedure in pre- or post-viability stage
unless the abortion is being performed because the
pregnancy itself threatens life or serious adverse health
consequences.
2. Same as Option 1 post-viability, but broader use previability -- namely, if woman chooses an elective (nonhealth) abortion, she could choose to use this procedure as
long as the procedure (as opposed to other procedures) were
necessary to avert risk to life or serious adverse health
consequences.
3. (Boxer) Same as Option 1 post-viability, but still broader
use pre-viability -- namely, procedure could be used in any
pre-viability abortion, irrespective of a health rationale.
4. Same as Option 3 pre-viability; differs from Options 1-3
post-viability by requiring only "adverse" rather than
"serious adverse" health consequences.
'j'
The attached draft letter embodies Option 1 without the
bracketed language; Option 2 with such language.
~
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.
THE WHITE HOUSE
WASHINGTON
February 2, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
LEON PANETTA, JACK QUINN ~eI(
GEORGE STEPHANOPOULOS, NANCY-ANN MIN
SUBJECT:
PARTIAL BIRTH ABORTION ACT
Detailed below are four ways of amending the Partial Birth
Abortion Act. They differ with respect to (1) the meaning and
appropriate scope of a life and health exception and (2) the
permissibility of imposing any restrictions on use of the
procedure in the pre-viability setting. Of course, we need not
propose any statutory language. But these formulations will help
to bring into sharper focus the question of when the regulation
of partial birth abortions is impermissible.
The Office of Legal Counsel of the Justice Department
believes that only one of the following proposals meets
constitutional standards -- namely, Option 4 (the option, of the
ones presented here, allowing greatest use of the partial birth
procedure). The White House Counsel's Office disagrees,
believing that Options 2, 3, and 4 are all at least arguably
constitutional. On the other hand, the White House Counsel's
Office agrees with OLC that Option 1 is unconstitutional because
it prevents a doctor from using the partial birth procedure in
any previability case in which the woman desires the abortion for
non-health related reasons, even if the partial birth procedure
(as compared to other procedures) 'is necessary to protect her
from serious adverse health consequences.
Attached to this memo is a draft of a letter, which sets out
your basic position on the Partial Birth Abortion Act.
The
penultimate paragraph of the letter, in which you say what kind
of bill you could sign, is most consistent with Option 1 in the
absence of the bracketed words and is most consistent with Option
2 when those words are included.
*
1.
*
*
*
*
The prohibition of the Act shall not apply to any abortion
performed where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This option allows use of the partial birth procedure, whether in
the pre-viability or post-viability stage, in only one
circumstance: where the' abortion is performed because the
pregnancy poses a threat to the life or the serious health
interests of the woman.
�\.
"
-'
v
'"
2.
The prohibition of the Act shall not apply to any abortion
if, in the medical judgment of the attending physician, the
abortion (or, in the case of pre-viability abortions, the
abortion or election of particular method of abortion) is
necessary to preserve the life of the woman or avert a
serious adverse health consequence to the woman.
This option allows use of the partial birth procedure in the
post-viability stage in the same circumstance described in Option
1: where the abortion is performed because the pregnancy poses a
threat to the life or the serious health interests 'of the woman.
It allows use of the of the partial birth procedure in the previability stage in that circumstance and another: where the
abortion is performed for non-health related ("elective")
reasons, but the use of the partial birth procedure (as opposed
to other abortion procedures) is necessary to avert a threat to
the life or the serious health interests of the woman . .
3.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This is the Boxer Amendment.
It allows use of the partial birth
procedure in the post-viability stage in the same circumstance
described in Option 1: where the abortion is performed because
the pregnancy poses a threat to the life or the serious health
interests of the woman.
It allows use of the partial birth
procedure in the pre-viability stage in any case at all,
regardless whether the abortion is performed for health-related
reasons and also regardless whether in "elective" cases, the use
of the partial birth procedure (as opposed to other procedures)
is medically necessary.
4.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert an adverse health consequence to the
woman.
This option allows use of the partial birth procedure in the
post-viability stage where the abortion is performed because the
pregnancy poses a threat to the life or the health interests of
the woman. Note that in this formulation, the adverse health
consequences to the woman do not have to be "serious." The
option allows use of the partial birth procedure in the previability stage in any case at all, as does ~ption 3.
This is
the option preferred by the Justice Department's OLe.
�TH E WH ITE HOUS E
WASHINGTON
'.-f-'--'
February 2, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
LEON PANETTA, JACK QUINN~e!(
GEORGE STEPHANOPOULOS, NANCY-ANN MIN
SUBJECT:
PARTIAL BIRTH ABORTION ACT
Detailed below are four ways of amending the Partial Birth
Abortion Act. They differ with respect to (1) the meaning and
appropriate scope of a life and health exception and (2) the
permissibility of imposing any restrictions on use of the
procedure in the pre-viabili,ty setting. Of course, we need not
propose any statutory language. But these formulations will help
to bring into sharper focus the question of when the regulation
of partial birth abortions is impermissible.
The Office of Legal Counsel of the Justice Department
believes that only one of the following proposals meets
constitutional standards -- namely, Option 4 (the option, of the
ones presented here, allowing greatest use of the partial birth
procedure). The White House Counsel's Office disagrees,
believing that Options 2, 3, and 4 are all at least arguably
constitutional. On the other hand, the White House Counsel's
Office agrees with OLC that Option 1 is unconstitutional because
it prevents a doctor from using the partial birth procedure in
any previability case in which the woman desires the abortion for
non-health related reasons, even if the partial birth procedure
(as compared to other procedures) is necessary to protect her
from serious adverse health consequences.
Attached to this memo is a draft of a letter, which sets out
your basic position on the Partial Birth Abortion Act.
The
penultimate paragraph of the letter, in which you say what kind
of bill you could sign, is most consistent with Option 1 in the
absence of the bracketed words and is most consistent with Option
2 when those words are included.
*
1.
*
*
*
*
The prohibition of the Act shall not apply to any abortion
performed where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This option allows use of the partial birth procedure, whether in
the pre-viability or post-viability stage, in only one
circumstance: where the abortion is performed because the
pregnancy poses a threat to the life or the serious health
interests of the woman.
�"
.
2.
The prohibition of the Act shall not apply to any abortion
if, in the medical judgment of the attending physician, the
abortion (or, in the case of pre-viability abortions, the
abortion or election of particular method of abortion) is
necessary to preserve the life of the woman or avert a
serious adverse health consequence to the woman.
This option allows use of the partial birth procedure in the
post-viability stage in the same circumstance described in Option
1: where the abortion is performed because the pregnancy poses a
threat to the life or the serious health interests of the woman.
It allows use of the of the partial birth procedure in the previability stage in that circumstance and another: where the
abortion is performed for non-health related ("elective")
reasons, but the use of the partial birth procedure (as opposed
to other abortion procedures) is necessary to avert a threat to
the life or the serious health interests of the woman.
3.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This is the Boxer Amendment.
It allows use of the partial birth
procedure in the post-viability stage in the same circumstance
described in Option 1: where the abortion is performed because
the pregnancy poses a threat to the life or the serious health
interests of the woman.
It allows use of the partial birth
procedure in the pre-viability stage in any case at all,
regardless whether the abortion is performed for health-related
reasons and also regardless whether in "elective" cases, the use
of the partial birth procedure (as opposed to other procedures)
is medically necessary.
4.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert an adverse health consequence to the
woman.
This'option allows use of the partial birth procedure in the
post-viability stage where the abortion is performed because the
pregnancy poses a threat to the life or the health interests of
the woman. Note that in this formulation, the adverse health
consequences to the woman do not have to be "serious." The
option allows use of the partial birth procedure in the previability stage in any case at all, as does Option 3. This is
the option preferred by the Justice Department's OLe.
�· ...
'....
•• _______ .____ • A" • ____ • _ •• ____ • _ . _____ • __ ..-..- ___ 4.,. _____
~_.
.•.
...... __ .-. .• _ • '·.-'·A·
~
.•_ . _... ___ .__
DRAFT
Dear Senator Hatch:
--'I understand that the House is preparing to consider H.R.
1833, as amended by the Senate, which would prohibit doctors from
performing a certain type of abortion.
I want to make the
Congress aware of my position on this extremely complex issue.
I have always believed that the decision to have an abortion
should be between a woman, her conscience, her doctor, and her
God.
I strongly believe that legal abortions--those abortions
that the Supreme Court ruled in Roe v. Wade must be protected-should be safe and rare.
I have long opposed late-term abortions
except, as the law requires, where they are necessary to protect
the ~-ife of-·the mother or where there is a threat to her health.
In fact, as Governor of Arkansas, I signed into law a bill that
barred third trimester abortions except where they were necessary
to protect the life or health of the woman, consistent with the
Supreme Court's rulings.
The procedure described in H.R. 1833 is very disturbing, and
I cannot support its use on an elective basis, where the abortion
is being performed for non-health related reasons and there are
equally safe medical procedures available.
As I understand it,
however, there are rare and tragic situations that can occur in a
_.~
..... _.••• ___ .',
-.,:._.
�~
....
.
DRAFT
woman's pregnancy in which, in a doctor's medical judgment, this
procedure may be necessary to save a woman's life or to preserve
her health.
In those situations, the Constitution requires that
a woman's ability to choose this procedure be protected.
I have studied and prayed about this issue, and about the
families who must face this awful choice, for many months.
-...
-----'
believe that we have a duty to try to find common ground:
I
a
resolution to this issue that respects the views of those-including myself--who object to this particular procedure, but
also upholds the Supreme Court's requirement that laws regulating
abortion protect both the life and the health of American women.
I have concluded that H.R. 1833 as drafted does not meet the
constitutional requirements that the Supreme Court has imposed
upon us, in Roe and the decisions that have followed it, to
provide protections for both the life and the health of the·
mother in any laws regulating abortions.
___
-:.J .
----.--~-:
-...0
__
_
I am prepared to support H.R. 1833, however, if it is
amended to make clear that the prohibition of this procedure does
not apply to situations in which the [election of the] procedure,
in the medical judgment of the attending physician, is necessary
to preserve the life of the woman or avert serious adverse health
consequences to the woman.
�DRAFT
I urge the Congress to amend H.R. 1833 to ensure that it
protects the life and the health of the woman, aS,the law we have
been elected to uphold requires.
Sincerely,
�"
TH E WH ITE HOUS E
WASHINGTON
February 2, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
LEON PANETTA, JACK QUINN~.::I(
GEORGE STEPHANOPOULOS, NANCY-ANN MIN
SUBJECT:
PARTIAL BIRTH ABORTION ACT
Detailed below are four ways of amending the Partial Birth
Abortion Act. They differ with respect to (1) the meaning and
appropriate scope of a life and health exception and (2) the
permissibility of imposing any restrictions on use of the
procedure in the pre-viability setting. Of course, we need not
propose any statutory language. But these formulations will help
to bring into sharper focus the question of when the regulation
of partial birth abortions is impermissible.
The Office of Legal Counsel of the Justice Department
believes that only one of the following proposals meets
constitutional standards -- namely, Option 4 (the option, of the
ones presented here, allowing greatest use of the partial birth
procedure). The White House Counsel's Office disagrees,
believing that Options 2, 3, and 4 are all at least arguably
constitutional. On the other hand, the White House Counsel's
Office agrees with OLC that Option 1 is unconstitutional because
it prevents a doctor from using the partial birth procedure in
any previability case in which the woman desires the abortion for
non-health related reasons, even if the partial birth procedure
(as compared to other procedures) is necessary to protect her
from serious adverse health consequences.
Attached to this memo is a draft of a letter, which sets out
your basic position on the Partial Birth Abortion Act. The
penultimate paragraph of the letter, in which you say what kind
of bill you could sign, is most consistent with Option 1 in the
absence of the bracketed words and is most consistent with Option
2 when those words are included.
*
1.
*
*
*
*
The prohibition of the Act shall not apply to any abortion
performed where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This option allows use of the partial birth procedure, whether in
the pre-viability or post-viability stage, in only one
circumstance: where the abortion is performed because the
pregnancy poses a threat to the life or the serious health
interests of the woman.
�'.";
..
'
2.
The prohibition of the Act shall not apply to any abortion
if, in the medical judgment of the attending physician, the
abortion (or, in the case of pre-viability abortions, the
abortion or election of particular method of abortion) is
necessary to preserve the life of the woman or avert a
serious adverse health consequence to the woman.
This option allows use of the partial birth procedure in the
post-viability stage in the same circumstance described in Option
1: where the abortion is performed because the pregnancy poses a
threat to the life or the serious health interests of the woman ..
It allows use of the of the partial birth procedure in the previability stage in that circumstance and another: where the
abortion is performed for non-health related ("elective")
reasons, but the use .of the partial birth procedure (as opposed
to other abortion procedures) is necessary to avert a threat to
the life or the serious health interests of the woman.
3.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert a serious adverse health consequence to
the woman.
This is the Boxer Amendment. It allows use of the partial birth
procedure in the post-viability stage in the same circumstance
described in Option 1: where the abortion is performed because
the pregnancy poses a threat to the life or the serious health
interests of the woman. It allows use of the partial birth
procedure in the pre-viability stage in any case at all,
regardless whether the abortion is performed for health-related
reasons and also regardless whether in "elective" cases, the use
of the partial birth procedure (as opposed to other procedures)
is medically necessary.
4.
The prohibition of the Act shall not apply to any abortion
performed prior to the viability of the fetus, or after
viability where, in the medical judgment of the attending
physician, the abortion is necessary to preserve the life of
the woman or avert an adverse health consequence to the
woman.
This option allows use of the partial birth procedure in the
post-viability stage where the abortion is performed because the
pregnancy poses a threat to the life or the health interests of
the woman. Note that in this formulation, the adverse health
consequences to the woman do not have to be "serious." The
option allows use of the partial birth procedure in the previability stage in any case at all, as does Option 3. This is
the option preferred by the Justice Department's OLe.
�DRAFT
Dear Senator Hatch:
--I understand that the House is preparing to consider H.R.
1833, as amended by the Senate, which would prohibit doctors from
performing a certain type of abortion.
I want to make the
Congress aware of my position on this extremely complex issue.
I have always believed that the decision to have an abortion
should be between a woman, her conscience, her doctor, and her
God.
I strongly believe that legal abortions--those abortions
that the Supreme Court ruled in Roe v. Wade must be protected-should be safe and rare.
I have long opposed late-term abortions
except, as the law requires, where they are necessary to protect
the-life of the mother or where there is a threat to her health.
In fact, as Governor of Arkansas, I signed into law a bill that
barred third trimester abortions except where they were necessary
to protect the life or health of the woman, consistent with the
Supreme Court's rulings.
The procedure described in H.R. 1833 is very disturbing, and
I cannot support its use on an elective basis, where the abortion
is being performed for non-health related reasons and there are
equally safe medical procedures available.
As I understand it,
however, there are rare and tragic situations that can occur in a
�,
DRAFT
woman's pregnancy in which, in a doctor's medical judgment, this
procedure may be necessary to save a woman's life or to preserve
her health.
In those situations, the Constitution requires that
a woman's ability to choose this procedure be protected.
I have studied and prayed about this issue, and about the
families who must face this awful choice, for many months.
believe that we have a duty to try to find common ground:
I
a
resolution to this issue that respects the views of those-including myself--who object to this particular procedure, but
also upholds the Supreme Court's requirement that laws regulating
abortion protect both the life and the health of American women.
I have concluded that H.R. 1833 as drafted does not meet the
constitutional requirements that the Supreme Court has imposed
upon us, in Roe and the decisions that have followed it, to
provide protections for both the life and the health of the
mother in any, laws regulating abortions.
--
I am prepared to support H.R. 1833, however, if it is
amended to make clear that the prohibition of this procedure does
not apply to situations in which the [election of the] procedure,
in the medical judgment of the attending physician, is necessary
to preserve the life of the woman or avert serious adverse health
consequences to the woman.
�.
· •., .. ~ .• ~...::.!!.--~-- .. -.-.
. ....... '
~------:..~-
..-- .. : .. .
DRAFT
I urge the Congress to amend H.R. 1833 to ensure that it
protects the life and the health of the woman, as the law we have
been elected to uphold requires.
Sincerely,
�'i..
THE WHITE HOUSE
WASHINGTON
April 16, 1996
MEMORANDUM FOR JACK QUINN
KATHY WALLMAN
FROM:
ELENA KAGAN
SUBJECT:
ABORTION
a ..
1/
~..)
cA,,\~
1. Kathy: Just a reminder that you're covering for me at the
1:00 meeting called by Don Baer to address message issues.
.
2. See the attached article.
It alleges that the President's
position is that all partial birth abortions are necessary for
health-related reasons.
In reading over the transcript of last
week's event, I noticed a couple of times where the President
came close to making this claim.
In our meetings before the
event, I urged people not to take this line. Our position must
be that the legislation needs a health exception for those
partial-birth abortions that are health-related (however many
they may be) -- not that all partial birth abortions are healthrelated.
It is difficult to move the women's office people off
the stronger position that partial. birth abortions are in all (or
at least most) cases a justified and even benign procedure.
We
must, though, continue to resist that position; it is factually
vulnerable and it will only lead to articles like this one.
3. Judging from a long note the President sent to Don and
Alexis, as well as a cryptic statement he made at the event, the
President may have become convinced of the following argument:
that the bill covers not only "real" partial birth abortions, but
a different, more benign procedure; that the women he spoke to
had this benign procedure; that the problem with the bill is that
it includes this benign procedure within its prohibition.
I'm not sure where this argument comes from.
It is related to
the claim some doctors have made that the bill, in failing to use
medical terminology, is so vague as to deter doctors from doing
even routine procedures.
But I suspect it comes from the
President's conversation with the women, who protest the way the
partial birth procedure has been characterized and insist on its
essential humanity.
Once again, this seems an argument to avoid.
The medical
"vagueness" point is not strong given the bill's definition of
partial birth abortion, which I suspect will seem very clear to
laymen. More critically, the factual predicate is missing for
any claim about the procedure performed on the women with whom
the President met and others in their position. There simply is
no evidence that I know of to suggest that these women had some
"other," "better" procedure than the one described in the bill.
�\
THE PRESIDENT HAS SEE"
.
. ' : .q-/:'I-'1/1 .
,.
"
..
.-'
'The Eternity \With!n':,4~~M~A"\Va~<lJyja~to"AJ~9
.
.
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cynically~ Proc~s~Pf
.
,
,.'1
~\)~.l.< ~·::.j.~.'·." .. ~i·'·.:.:.
by p8ru~L~ftif.:ii~tl.
'·· ..1
,';'_
"
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f
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...... '"
"
'
.
\':'~"il~~'IIII~~~~
the
.
' I l b o r t l odeltverY· . . . · . ' . · :::,!~r;~~~Rathe; than deal .
n..·
with the fa.':)'.;
Surroundfng himself with .flve womeh )~'"
bout rtf I birth bortl .::- '..
. who had. faced tragedy during theli' preg':::,'l! . a . pa a . a .' ~ns,. ",'
: nancles, and ~?ntIemnlng thos~,wh~ Yi.o\Jl~:·J~~~ldent Clinton chose Instead{.;[
.~ . Use thell! as political pa;WJ!S",;the. presl~
,. to toe the line drawn by the .,'~i .
,'.dentproceeded to usethenf:,aa~juijlf.ba. I' \
.
. . ,.,,;.;)
- - - - - - - - - - . . ; . ,~-'--;: ,.Andfratid~~nUyaswel~....... :). "~:l!1~ ~~rtlon lobby. ... We ha~~ ':'l;
.. ..
LEN .
ARE
'
The preSIdent claimed repeatedly that~:t'l, every right and every reason to
'
r~n~~~d~fr~~1g,iy
. By HE
ALV
I .• >; partial blrt~ a¥ffiOri Is done only to pre·h'~:C4mdemn the veto that puts our,
mother's body, that It
On Good Friday; President Clinton vis, .. serve a woman slife 0 er uture fertilitY~t.i'·\·:;;:~). n tl
t
I
. t' , . ':: ' essential to her medical '
!ted the scene of the Oklahoma City bomb- ~. ,: or 0 en
es of c
.'
at>~.~,:>,,:- a on one 8 ep c oser.,~, . .:'. ,child be stabbed and!! ~th~e~;lli,~~~~'
Ing where so many children were killed one:\ t ~ would IIkel not live Ion sf r beil1g';i-';'!:~i.:r;l· lepllzIlIgl~clde., ,: . "., ::';, head suctloned out. ~
• Abortion: Clinton
used five families' personal
.
tragedies to deflect our
revulsion at the partial birth
procedure.
o
On Easter he said Christians the world
over would "bear witness to our faith" that
the miracles of Jesus and those of the
human spirit seen In Oklahoma City,"only
reflect the larger miracle of human'
n~ture-that there Is something eternal
WIthin each of us ... n.o bomb can blow
away~ even from the btUest chl!,d, that
etermty which Is within each of us.
Five days later a~d Easter past, the
president vet~d a bl~1 that would hav~
" protected the tiniest chdd from being killen
. what t ose w 0 J1er orm partla ,birth ';'\: .... ':"."", . ,', ".,:;",
. abortions have saIa: agaIn and a aIn: The :, ;.} ,.:, .:; ,,' :,:" ,.; '. ",,:;I:' ...
"
",I ...
vas maJor!
r ons e er 0
e:c,..
,. . '
':;:i;: '
.: P re Ye ec ve. ,en ose. ,ey
"'rion~;!';;" tif the five women as political pawnS lriiil '
elective would be consldereil elective by,,":'~:thelr own right. The disabilities these chil.' .
most people. For exa~ple, the l~~e Dr..:: dreli had, the short, lives they mlgbt have., .
Jam~s McMahon called ,nonelectl"e those:-. had, Were held up only as reasons to per .... -: .
partial birth abortlon,~,.~~ ar!,p~t1<l~ed:;;'~fon;rithe most brutal:, procedure the ~bor.\ };.
because ~f the,moth.~r;8 youth I}or~us~i' ",: t10ll lndUstry ~as ever Invented. The presl·?: . Dr. Warren Herh, la~d~~;~~r:~~~t~
shewas depre,ssetL i .... .'.: . .' ::'dl!nt chos~.,tom~ these.,de~d:.!:9I:l'!re~A;i,andauthorof
JI1<"'., . .VW1~1t'»
~~~~~~~i~!~j~~~~~m~~~'~
. We ,cannot ;J~}9.~ no.~... qte dis~ur~~ ,,~:Wr (fIJSQ~~!i~ ~,t.:i!~!!J8e~ijl.,~x~:vo!grl~ti! \:: text~k, ~~~;~~tf;~~;'
C
Implications 0r:~iJhei~~~~ ItI'~r~'f? t~· <V0J? .r) ,I. ' . ':' ~'1'~f- ':;;;:~'),~:~ ,~d. tl ..
'"
,:'
, • .
"::.~':"
"'. .
~~------------------------------------------~~
""
.
DRAWINGBOARD I ROGERS
.'
..
~
. I j'
\~~ . . ;
~':V;
\, PERSPECTIVE ON ASSISTED SUICIDE
,"\ I,
. ,I
, ",~,
: .. :' r
I'M SURE THAT's HCIf
WMT llIEY !lAII IN MIND
WHEN 'THEY PASSEl> '1lIE
U=·VE1b,
.
,
A
r-
a
.
.
'.
Cc
�THE WHITE HOUSE
WASHINGTON
April 16, 1.996
MEMORANDUM FOR JACK QUINN
KATHY WALLMAN
FROM:
ELENA KAGAN £.~
SUBJECT:
ABORTION
1.
Kathy: Just a reminder that you're covering for me at the
1:00 meeting called by Don Baer to address message issues.
2.
See the attached article.
It alleges that the President's
position is that all partial birth abortions are necessary for
health-related reasons.
In reading over the transcript of last
week's event, I noticed a couple of times where the President
carne close to making this claim.
In our meetings before the
event, I urged people not to take this line. Our position must
be that the legislation needs a health exception for those
partial-birth abortions that are health-related (however many
they may be) -- not that all partial birth abortions are healthrelated.
It is difficult to move the women's office people off
the stronger position that partial birth abortions are in all (or
at least most) cases a justified and even benign procedure.
We
must, though, continue to resist that position; it is factually
vulnerable and it will only lead to articles like this one.
3.
Judging from a long note the President sent to Don and
Alexis, as well as a cryptic statement he made at the event, the
President may have become convinced of the following argument:
that the bill covers not only "real" partial birth abortions, but
a different, more benign procedure; that the women he spoke to
had this benign procedure; that the problem with the bill is that
it includes this benign procedure within its prohibition.
I'm not sure where this argument comes from.
It is related to
the claim some doctors have made that the bill, in failing to use
medical terminology, is so vague as to deter doctors from doing
even routine procedures.
But I suspect it comes from the
President's conversation with the women, who protest the way the
partial birth procedure has been characterized and insist on its
essential humanity.
Once again, this seems an argument to avoid. The medical
"vagueness" point is not strong given the bill's definition of
partial birth abortion, which I suspect will seem very clear to
laymen. More critically, the factual predicate is missing for
any claim about the procedure performed on the women with whom
the President met and others in their position. There simply is
no evidence that I know of to suggest that these women had some
"other," "better" procedure than the one described in the bill.
�THE PRESIDENT HAS SEEN
. ., .' "I-Jl./4f, ..
".
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,
,
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'-'
. ,~'}7
••
:,:, FRlDAY, APRIL 12, 1996· ,,·A11
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• Abortion: Clinton cynically .. ,~ the P~~i~f deliverY by. parti~t~tftffii,~< ·r. " .
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•. ;':;: " The president alsO sald"bvE;r. ~d~~Ver~!~~ute anYlsltate~,ent that this is th~ sa!E'st
&~_m'
:,,, abortion.
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""/'<~'Rather than deal with the factS . . .'· again that partial birth abortions ,a!eiWipr~edure ToO us~. Turning t?e child,!nto
used five Uu.w.ues persona1
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Surrounding himself with five women I~' J
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needed to roted a mother s lieaIm; IlIe:lwthe breech. position, he explamed, is po.1 . , ' .
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tragedies to deflect our
who had faced tragedy during their pre _:"';'1 about partial birth abortions;
pre
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-lttentiallY dangerous ... You have to ~e
.
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concerned .about causing amniotic flUid
revulslon at thepartial b'
lrth
: nllJlcles, and conllemnlng those who }¥oJ.lldri;\"arnnt ent Clinton ch inst ead'· bru abortions says the exact Qllllim!t.e se:~ li~embolisJn or placental abruption If you do
ose '
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procedure.
.1 : :~tu:,::ea:dlO~ti:~ Pth~:~ ~~L~:!r~~\ 'to toe .the line drawn by the
;::" So does com~on sense. It· abSOlut~IY:I::.':that."
___________~__.·.l ,And frauduiently as well .' '. .) \ ,:~>,¥t~'j~ abortion lobby. "', We hav~ 'j, 'defies reason to clll)iIi that o,n~ a child Is, :;! ~ther thait deal with th~ facts ~bout
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right
d
t ':t.; almost completely ,delivered vaglnally,~; paitIal birth abortions, ~resldent Chnton
B HELEN ALVARE
. .
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The president claimed repeatedly that aV'.': every
an every reason 0
with only its head remaining Inside the ;'~" chose Instead to toe the Ime drawn by the
n is done on!£to pi'e-I:!~~;~ndemn the veto that puts our
Y
I"", partial blrtb a¥rtlO
mother's body, that it could possibly ~;'\I);abortion lobby and to conf~ont the nation
On Good FrIday, President Clinton vls- '. ; serve a woman slife or her future fertlUtYl~;·i;. ,:.t~;', atl
t
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essential to her medical health that the~~';!:wlthwomen who had experIenced personal
child be stabbed and the contents 'of Its'ti/f,tragedles regarding their pregnancies. And
lted the scene of the Oklahoma City bomb- .!,or to end th~ liVes of c!'Udren so sl~k that:. " ::, :I,n on one 8 ep C 088r 0
ing where so many children were killed one i~;" the would likel no~ live 10 ' , belllg. ii:\>f,i·;:i:.t: le,.lI~ng,'~I~lde.' .
head suctioned out. Once delivery Is that:~.1n so doing, he dared all of us to judge them.
year ago. There, he delivered this message: ,.r bOrn ve. e resIdent
e to'
e ~,:.lj! ,"
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"far alo "dellve
the Child '8' few more "!-n It Is not our place to judge them. But, as
On Easter, he said, Christians the world' wha those w~ per orm' partial ·blr th ·;\\:,. ,':,' "~' '. :"'"',,:',,
Inc es Des no
e a woma
.:l;\eltizensofthe United-States, we have every
over would "bear witness to our falth" that abortions have saId 'again and a aln: The :,.;,;' ". 'i , ";, "
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'.':':, does, owever r uce a ead child, ra er
right and ~very reason to condemn the veto
themlrscles of Jesus and tho~e o! the, ,va ml\JOrl
Ins e, eo .. , re.~'~", :, .".',
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, ,·t.. th' a ve
v;r;that puts our ~a~ion one step closer to
humansplrttseenlnOklahomaClty, only ,'p eyee ve, en ose, .eycall ,non~;<,of the flv~ womenas'politlcal pawnS In'':, tty roc ,ha ,
'
e v-':i,:legalizinglnfantlclde. .
'
reflect the larger miracle of human' elective woUlCfbe consldereil elective by I,~:thelr own rtght. The disabilities these chll-'
Ilr vagmally after excess fluid Is 'removed '.: Shame on the president. Congress should
n~ture-that there is something eternal
most people. For e~ple, the l~~e Dr. ,dren had, the short, lives they mlgbt ,have
from {lie!r heads ~th aneedle4eaIgiiea for.; vote-overwhelmingly and quickly- to
WIthin each of us . , . no bomb can blow Jam~s McMahon called, nonelective those ": had, were held up orily as reasOns to per-, .' that purpose. Miiiy. ttv¢ tong tIM happy .' override this Inexcusable veto.
away, even fr?m the littlest chl!,d, that partial birth abortl0lll!,,~t ar~, perl~rmed.q form· the most brutal procedure the abor-' .', li~
, ,, : '
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eternity which IS within each of us.
because ~f the,moth~r;.s youth ',or becaus~: tion.lnditstry has ever Invented. The presi- '.':"
Dr. Warren Hern, a,late-term abortionls(.{\: Helen Alvare is director of planning and
Five days later and Easter past, the she was depressed '~
.
. dent chos~ to' mourn these dead children;; ,and author of the:most wlde,y used abortion.';~dnformatjon 0/ the Secretariat for pro-Life
president vetoed a bill that would have
We cannot fall to. note, the disturbing :..only ,Insofar.as It wllj,useful for evoking " textbook, sald this about pattllll ~Ii-th abor.'; ~~'Activitie8 0/ the National Conference of
protected the tiniest child from being killed implications of,iI$s::.the,:a90~: chp~: 'i,~~a~y;,: .1·· .. ;,: ,~·"i~ L".'
.' .' ":~ , :~:ns 'and thel~ ~~«:i~~t()l~:;:"0rI WOul~,;~..f~~lic ~lshops in'Washington.
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08:46
FROM:
2024562215
TO: 61647'
PAGE: 05
Apr1l 17, 1996
MEMORANDUM TO THE PRESIDENT
FROM:
TODD STERN
SUBJECT:
Partial Birth Abortion
Following a meeting yesterday chaired by Don 8aer, I drafted the
attached letter on partial birth abortion, and Elena Kagan
drafted the attached talking points, summarizing your position.
(As noted in the accompanying memo from Don and Alexis, there is
some ongoing discussion about how best to get the letter out -e.g., as a response to the Cardinals, or as an open letter.)
I. wanted to call one point to your attention.
Elena and 1 do not
make the argument -- suggested in your note to Don and Alexis -that the women who came to the White House last week underwent a
procedure not described in the bill, or that Congress could or
should have exempted the procedure they underwent from the bill's
prohibition.
The reason is that this argument isn't accurate. The women who
visited with you did undergo a dilation and evacuation procedure,
and that is precisely the procedure targeted by the bill. The
bill uses a layman's term, "partial birth abort1on", so it is
concoivable that more than one procedure might be covered.
But
there is no question that the bill's principal target is dilation
and evacuation, which is what these women underwent.
Of course the procedure itself, as these women experienced it,
might have been far less gory than the bill's supporters have
claimed. But then the argument becomes that the procedure isn't
as bad as people say, rather than that these women underwent a
different procedure altogether, which shouldn't have been covered
by the bill. And trying to argue that the procedure isn't as bad
as people say is a losing ground for you.
You need to keep the
focus on saving women from serious health risks, not saying that
dila~ion and evacuation isn't so bad.
Indeed you have said in
the past that it is very troubling.
This view is widely shared by your advisors (Melanne, George,
Vicki, Elena, etc.).
�~118
. \%,,08:45
FRCt1:
2024562215
TO: 61647
~:02
.'
Partial Birth Letter
(4/17[2)/96)
A great deal has been written in recant days and weekG abou~
legislation banning a certain abortion procedure, commonly
reterrea to in the press as partial birth abortion.
In late
Maroh, Congress passed that legislation, H.R. 1833, and on April
10, I vetoed it because of ita failure, in certain rare and
compelling cases., to prevent serious threats to women's health.
My position on this bill has been widely misrepresented and
misunderstood.
Some, including those more interested in orea~ing
a political issue than in putting real, meaningful limits on the
use of this procedure, have deliberately distorted my views.
But
I know that a great many people of good taith -- and of all
faiths -- are sincerely perplexed about the ve~o.
It is to the5e
people that I address these comments -- not because I believe
that you will necessarily come to share my view, but so that you
will unaerstand the genuine basis of my position.
Let me begin with a word of background.
I am against la~e-term
abortions and have long opposed them, except, as the Supreme
court requires, where necessary to protect the life or health of
the mother. As Governor of Arkansas, I signed into law a bill
that barred third trimester abortions, with an appropriate
exception for life or health, and I would sign a bill to do the
same thing at the federal level if it were presented to me.
The particular procedure aimed at in ".~. 1833 -- gener6l1y
referred to by doctors as dilation and evacuation -- poses a most
difficult and disturbing issue, one Which I studied and prayed
about for many months.
Indeed, When I first heard a description
of this procedure, I anticipated that 1 would support the bill.
But after I studied the matter and learned more about it, I came
to believe that this rarely used procedure is justifiable as a
last resort when doctors j.udge it necessary to save a woman's
life or to avert serious consequences to her health.
Last week, I was joined in the White House by five women who
desperately wanted to have their babies and were devastated to
learn that their babies had tatal conditions and woula not live.
Thege women wanted anything other ~han an abortion, but were
advised by their doctors that this procedure was their best
chance to avert the risk of death or grave harm which, in some
cases, would have inclUded an inability to bear children. These
women gave moving, powerful testimony.
For ~hem, this was not
about choice.
This was not about choosing against having a
child. Their babies were certain to perish before, during or
shortly after birth. The only question was how much grave damage
they were going to Buffer. Rere is what one of them had to say'
"Our little boy had .•• hydrocephaly.
All the doctors told us
there was no hope. We asked about in utero surgery, about
shunts to remove the fluid, but there was absolutely nothing
�2024562215
TO: 61647
PAGE: 03
we could do. I cannot express the pain we .till feel. This
was our preciouB little baby, and he was being taken from us
before we even had him. Thia wag not our ohoioe, tor not
only was our son going to die, but the co~plications ot the
pregnancy put my health in danger, as well.
If I carried to
~erm, he migh~ a1e 1n utero, and the resulting toxins could
oause a hemorrhage and possibly a hystereotomy. The
hydrocephaly also meant that a natural labor risked
rupturing my cervix and my uterus."
Some have raised the queljltion whether, ae a matter of medioal
practice, this procedure is ever the safest for a woman. I can
only say that there are many doctors -- some of whom testified
before Congress -- who believe that this procedure is, in certain
rare cases, the safest one to use.
In those rare cases, where a
woman's serious health interects are at stake, I believe her
doctors, in the best exercise of their medical jUdgment, should
have the option to use the procedure.
The problem with H.R. 1833 is that it provides an exception to
the ban on this procedure gn!y when a doctor can be certain that
a woman's life is at risk, but not when the doctor is sure that
she faces real, grave riSkS ~o ner health.
Let me be clear.
I do not contend that this procedure, today, is
always used in circumstances that meet my standard -- namely,
that the procedure must be necessary to prevent death or serious
adverse health consequences. The procedure may well be used in
situations where a woman's serious health interests are not at
issue.
But I do not support such uses, I do not defend them, and
I would sign appropriate legislation banning them.
At the same time, I cannot and will not countenance a ban on this
procedure in those cases where it represents the best hope for a
woman to avoid serious risks to her health. I recognize that
there are those who ~elieve it appropriate to force a woman to
endure real, serioue risks to her health -- inoluding, sometimes,
the loss of her ability to bear children -- in order to deliver a
baby who is already dead or about to die. But I am not among
them.
I al~o understand that many who support this bill believe that
any health exception is untenable.
In a letter sent to me on
April 16 ~y our leading Catholic Cardinals, they contend that a
"health" exception tor the use of this procedure could be used to
cover most anythin9 -- for example, youth, emotional stress,
financial hardship or inconvenience.
That is not the kind or except jon I support. I support an
exception that takes effect only where a woman faoe~ real,
serious adverse health consequences. Those who oppose this
procedure may wish to cite cases where fraudulent health reasons
are relied upon as an excuse -- excuses I could never condone.
But people of good faith must rec09nize that there are also cases·
�~r~9.'36.08:45
.
FROM:
2024562215
TO: 61647
PAGE: 04
"
II
II
where the health risks facing a woman are deadly serious and
real.
It is in those cases that I believe an exception to the
general ban on the procedure m~5t be Gllawed.
Further, I flatly rejeot the view of those who suggest that it is
impossible to draft a bill imposing real, stringent limits on the
use of this procedure -- a bill making absolutely Olear that the
procedure may be u~ed only in ca~es where a woman risks death or
serious damage to her health, and in no other case.
I know that
it is not beyond the ingenuity of Congress, working together with
this Administration, to rash ion such a bill.
Indeed, that· is why I implored congress, by letter dated February
28, to add a limited exemption for the small number of oompelling
cases where use of the proceaure is necessary to avoid serious
health concequences. Congress ignored my proposal and did so, J:
am afraid, because there are too many there who prefer creating a
political issue to solving a human problem. But I reiterate my
offer now: if congress will work with me to produce a bill that
meets the concerns outlined in this letter, I will sign i t the
moment it reaches my desk.
As I said at the outset of this letter, I know that many people
will continue to disagree with me about this issue.
BU~ ~hey
should all know the truth about where I stand: I do not support
the use of this procedure on demand.
I do not support the use of
this procedure on the strength of mild or fraudulent health
complaints. But I do believe tha~ we cannot abandon women, like
the women I spoke with, whose doctore advise them that they need
the procedure to avoid serious injury. That, in my judgment,
would be the true inhumanity.
continue to hope that a solution can be reached an this painful
issue.
I hope as well that the deep dialo9u~ between my
Administration and people of faith can continue with regard to
the broad array of issues on which we have worked and are working
together.
I
Sincerely,
�TALKING POINTS ON H.R. 1833
•
The President vetoed H.R. 1833 because the bill, which prohibits a certain kind of
abortion procedure, fails to protect women from serious threats to their health, as
both the Constitution and humane public policy require.
•
The procedure described in the bill troubles the President deeply. He does not
support use of that procedure on an elective basis. He would allow it only where
necessary to save the life of the mother or prevent serious injury to her health.
•
This bill went too far because it would ban use of the procedure even when it is the
only or best hope of saving the woman's life QI averting a serious threat to her health,
including her ability to have children in the future.
•
Before vetoing this bill, the President heard from women who desperately wanted
babies, who were devastated to learn that their babies had fatal conditions, who
wanted anything other than an abortion, but who were advised by their doctors that
this procedure was their best hope of preventing death or grave harm, including the
loss of reproductive ability. For these women and others, this was not about choice.
These babies were certain to perish before, during, or shortly after birth, and the only
question was how much grave harm was going to be done to the woman.
•
Criminalizing use of the procedure in such cases, where women and their families
must make a tragic choice, poses a danger of grave harm to women. A ban of this
kind, aside from violating the Constitution, would be the true inhumanity.
•
That is why the President, by letter dated February 28, implored Congress to add an
exemption for the small number of compelling cases where selection of the procedure,
in the medical judgment of the physician, is necessary to preserve the life of the
woman or avert serious adverse consequences to her health. A bill amended in this
way would have struck a proper balance, remedying the constitutional and human
defect of H.R. 1833.
•
The charge that the President's proposed exemption would create a huge loophole,
allowing the widespread use of this procedure, is simply not true. The President's
exemption would apply only when there is serious harm to health. Surely Congress,
working with this Administration, can write legislation making clear that serious harm
to health means just that - that it doesn't include, as some have suggested, youth, low
income, or inconvenience. Attacks such as this trivialize profoundly tragic situations.
All one needs to do is to listen to some of the women who have had this procedure to
understand what kind of harm the President is talking about.
•
The President will not sign a bill showing, as this one does, total indifference to the
health of women. He will sign a bill amended to protect women from serious harm
by allowing this procedure in rare cases. He regrets that Congress, more interested in
creating a political issue than solving a problem, has so far rejected this approach.
�THE WHITE HOUSE
WASHINGTON
MEMORANDUM TO THE PRESID~ IYM.
__&l"'r'~..
((1,'f'
GRIFFIN,~AROL RAsco~hK
FROM:
ABNER MlKVA, PAT
GEORGESTEPHANOPOULOS
THROUGH:
LEON PANETTA
CC:
ALICE RIVLIN, ALEXIS HERMAN, MELANNE VERVEER
Earlier this summer, the House Judiciary Committee reported out (by a party-line
vote, with three Democrats absent) a bill introduced by Congressman Canady (R-Fla.) known
as the "Partial Birth Abortion Ban Act." The Office of Legal Counsel at DOJ believes the
bill is "constitutionally flawed." Given your opposition to most post-viability abortions and
the controversy surrounding the topic, we thought you should decide how to respond to this
bill.
Backeround
As you know, Roe v. Wade and its progeny forbid significant restrictions upon
abortion prior to viability but permit the government to ban post-viability abortions except
those that protect maternal life or health. As governor, you signed a law making abortion
illegal after the 25th week of pregnancy, with an exception for life and health (as well as one
for rape or incest, in the case of minors).
The Canady bill criminalizes the conduct of any doctor who performs (but not of the
mother who obtains) what is medically termed a "dilation and extraction" abortion. D & X
abortions are usually performed only after 20 weeks of pregnancy. At least some doctors
regard it as the safest method of late-term abortion under certain circumstances. The method
involves bringing the lower part of the fetus out of the uterus before completing the abortion.
We are not aware that the medical community regards this method of abortion as morally
distinct (or medically different in a meaningful way) from other late-term method,s.
However, abortion foes have given the procedure a new, emotionally charged name of
"partial birth abortions" in order to suggest otherwise. Pro-choice activists warn that the bill
interferes with a doctor's choice of medical procedure, and they accuse right-to-life partisans
of targeting this procedure in order to show disturbing pictures that will arouse general
opposition to abortion.-
�2
Only three or four doctors in the United States perfonn this specialized procedure,
and the total number of D & X abortions annually is probably under 500. By contrast, about
1.5 million abortions are perfonned each year in the U.S., of which about 13,000 are
perfonned after 20 weeks. We do not know what proportion of D & X abortions occur
between 20 weeks and viability (a point that usually arises following the 24th week), but 0
& X abortions seem to comprise a higher percentage of post-viability procedures. A more
traditional method of perfonning late-tenn abortions is known as the 0 & E procedure, in
which the fetus is dismembered within the uterus and then removed.
Although the D & X procedure can be used for purely elective abortions, it is also
used in pregnancies that physically threaten a mother (e.g., severe diabetes) or when a
severely deformed fetus is discovered late in the pregnancy. During a subcommittee hearing
on the Canady bill, the most emotional testimony was given by a mother whose severely
deformed fetus was detected late. She decided to have a 0 & X abortion because the trauma
of watching a young child die a certain and painful death after birth was more excruciating.
Discussion
Mother's Health: The most significant constitutional objection to the Canady bill is
that it permits 0 & X procedures only if the life of the mother is threatened. Extending the
exception to include the health of the mother would be consistent with the bill that you
signed in Arkansas and would probably be required by the Supreme Court, which recently
/' v
affirmed that "Roe forbids a State from interfering with a woman's choice to undergo an
abortion procedure if continuing her pregnancy would constitute a threat to her health." The
Court indicated that such health threats would have to be "substantial," which seems to
...; . v
include threats to mental health but only of a serious nature. To the extent that barring 0 &
f
X abortions WOUld. force women who n~ed abortio~s for h~t? reaso~s to .forgo what may { ' \ }
be the safest abomon method, OLC beheves the ban IS constitutlOnally mvalid.
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Pre-Viability Abortions: Another potential constitutional problem is that the Canady
II'~ ~
bill bars D & X procedures
in the pre-viability period. The Court has held that states
~ i'.~
may not place an "undue bur" n pre-viability abortions, and this bars any regulation that
"has the purpose or effect of placing a substantial obstacle in the [woman's] path." OLC
expresses its "concern" that barring a particular method of safe abortion could constitute an
"undue burden." It is difficult to predict whether a court would so hold -- both because the
contours of the recently announced "unQ.ue burden" standard are not fullx., kpown and because
the ris~ of using other methods of pre-viability abortions (instead of the D & X) are unclear.
It would be consistent with your prior views, however, to remove pre-viability abortions
from the scope of the bill. In 1990, for example, you stated: "While I .. , supported
restrictions on public funding and a parental notification requirement for minors, I think the
government should impose no further restrictions. Until the fetus can live outside the
mother's womb, I believe the decision on abortion should be the woman's not the
government's. "
•
1::-1
�3
Post-Viability Fetal Deformity: Severe fetal deformities are sometimes detected only
after viability. Obviously, a pre-viability exception would do nothing to authorize D & X
abortions in such cases. Even if a health exception were added to the Canady bill, it is
doubtful whether doctors would rely on that exception to Perform fetal deformity abortions
since they would probably interpret a criminal statute conservatively, to avoid the risk of
imprisonment. Rep. Schroeder tried but failed (in committee) to add a "health" exception to
the Canady bill that expressly defined health to inClude "threats from severe fetal
abnormality." This may have been intended to help doctors who perform fetal deformity
abortions by underscoring that deformities can implicate maternal health. But the Schroeder
language seems unlikely to help by much, since the doctor must still decide that a given fetal
deformity threatens maternal health, and thai: decision remains subject to criminal challenge.
Recommendation
(1)
We believe you should take a position on the Canady bill. Many members of
the Judiciary Committee (including pro-choice members) have asked for a statement, and the
bill in some form probably will pass the House and may well succeed in the Senate.
(3)
In defending D & X abortions in the pre-viability period (when most such
abortions are by other methods), you may be placed in the position of defending a particular
procedure that is publicly controversial. If, however, you initially decide not to defend previability D & X abortions, you may encounter greater difficulties later on. The bill may well
be amended to protect the woman's health. You would then face the question whether to
object to the pre-viability bar or, if you did not object, whether to sign a bill that might well
be unconstitutional. It would be more difficult to raise the pre-viability objection at this later
point if you have not even mentioned it in an initial statement:
(4)
We think it is not advisable to address separately the issue of fetal deformity
abortions. Adding a health exception !o the Canady bill should permit some abortions where
fetal deformities clearly jeopardize maternal health. While the bill's criminal penalties will
doubtless have a chilling ~ffect on doctors' medical judgments in such cases, that is unlikely
to be alleviated by the Schroeder amendment (or other similar language). The chilling effect
probably can only be eliminated by adding a further exception to the bill that would
�4
expressly permit abortions for certain fetal deformities. Such a proposal would cloud the bill
with a further controversy and, if adopted, could even authorize abortions in circumstances
that you would find unacceptable.
Given all of these considerations, we recommend issuing a statement along the lines indicated
in the second paragraph immediately above (option #3, below).
1.
2.
3.
4.
Take no position on. the bill
Oppose bill solely because it lacks a health exception
Oppose bill because it lacks both a health exception and an exception for pre-viability
abortions when the D & X method is the safest.
Let's discuss
�0\,!:'''pt /v{~
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�THE WHITE HOUSE
WASHINGTON
October 27, 1995
MEMORANDUM FOR CAROL RASCO AND ALICE RIVLIN
FROM:
Jeremy Ben-Ami
Nancy-Ann Min
Debbie Fine
SUBJECf:
The Partial Birth Abortion Bill
This memorandum provides brief background on the pending "Partial Birth Abortion Ban Act
of 1995," identifies options for administration action, and provides some assessment of the
pros and cons of those options.
I.
Background
Description of the bill
The bill bans "abortion in which the person performing the abortion partially vaginally
delivers a living fetus before killing the fetus and completing the delivery."
It imposes criminal penalties on "whoever knowingly performs a partial birth abortion,
thereby killing a human fetus" and subjects them to civil suit as well. To avoid criminal
liability, a physician must prove affirmatively that 'partial birth abortion' was necessary to
save the life (not health) of the mother and that no other procedure would suffice for that
purpose. The woman cannot be prosecuted.
It is critical to note that "partial birth abortion" is not a medical term. Many feel that at a
minimum it describes a procedure called Dilation and Extraction (D&X), a type of Dilation
and Elimination(D&E). D&X is a rare procedure used for late term abortions, estimated at
no more than 600 per year, while D&E is somewhat more commonly practiced. Late term
abortions are very rare, occurring when a woman's health or life is threatened or when a fetus
is diagnosed with severe abnormalities. These are usually families that have planned and
wanted pregnancies, but that face a life-threatening medical condition for the mother or a
severe fetal abnormality.
Current Status on the Hill
Earlier this summer, the Bill was passed by the House Judiciary Committee and is expected
to be taken up on the House floor at some point in the next few weeks; the Senate timeline is
not as clear. The Judiciary Committee reported out by a party-line vote, with 3 Democrats
absent.
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The prospects for passage in both Houses are very good, according to those who follow
choice issues on the Hill. It is estimated that there may be approximately 140-150 votes
against it in the House and approximately 40 in the Senate.
Profile of the Medical Community Views
American Medical Association: Legislative Council voted twice to support the legislation;
the Board did not accept this recommendation and will not take a position on this bill.
California Medical Association: Strongly opposes this bill as an intrusion into the
physician-patient relationship and as a burden on families.
American College of Obstetricians and Gynecologists: They have not taken a position, and
do not plan to.
American Medical Women's Association: They oppose this bill because it makes a medical
judgement, and have tried to convince the AMA and ACOG to at best oppose and in the least
stay neutral.
American Academy of Family Physicians: They do not plan to take a position because this
is not a priority for them, however, they felt that if they were to take a position it would be
to oppose the bill.
The medical community seems unified in their opposition to the government legislating
medical procedures; however, the strength of that opposition is not sufficient at this point to
cause the national organizations or their memberships to work together to oppose it.
This is largely for several reasons:
•
'Partial birth abortion' is not a medical term so there is not'unanimity about what
precise procedure this language describes. This seems to cause some to feel stronger
about the need to oppose the bill because it could be interpreted to ban much more
commonly used medical procedures, while it causes others to hesitate.
•
The D&X procedure that is ostensibly described is extremely rare, and only 2 or 3
doctors in the country perform it. As a result, there is not necessarily a large natural
base of doctors to respond to this ban.
•
Some in and out of the medical community identify this as the safest method for the
mother under certain circumstances for several reasons; however, there does not seem
to be consensus about this because there are so few doctors who perform it and so few
women who undergo it.
•
The bill is not yet widely known about around the country to those who do not
normally follow choice issues closely.
•
People are afraid of the politics of this issue.
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';'
Profile of Women and Pro-Choice Group Views
The women's and pro-choice groups feel that this is an assault on the right to choose and on
the availability of safe abortion to women in this country. They feel it is unconstitutional
because it imposes an undue burden; that it is an attempt to ban all abortions because of the
broad language used which could be interpreted to include other procedures or situations; that
doctors will be afraid to perform abortions because they will fear conviction; and that doctors
will no longer consider the health of the mother their primary responsibility (particularly
because they may need to second-guess what fits this vague definition) -- rather they will
weigh it against their fear of conviction. (Note the bill states that the only exception is the
life of the mother, not the health of the mother as stated in the constitution.) They are
extremely hopeful that we will oppose this legislation.
II.
OPTIONS
1. Express No Opinion: The administration can remain silent during the coming House floor
debate. There is no requirement that we send up a SAP, and we could wait to see how the
debate plays out in the Senate.
2. Express Opposition: The administration could express its opposition to the bill in a SAP
to the House. If this option is chosen, we recommend basing opposition on the following: (1)
It is unconstitutional because of it fails to include an exception for situations when certain
procedures are necessary in order to protect the health or life of the woman, and because it
poses an undue burden on women seeking an abortion by criminalizing the use of abortion
methods that may best protect them and their child bearing capacity; and (2) It is not the
.
business of Congress to regulate medical procedures.
3. Veto Threat: The President could choose to make it clear from the start that he would veto
this bill. This would be an unusually strong statement, but it has been used more in recent
times than earlier in the administration.
III.
ANALYSIS
•
This is a bad bill, the passage of which would be a setback for women's right to
choose in this country and potentially creating a situation where women are forced to
make decisions that are not the safest or healthiest for them.
•
The politics are incredibly tough: on the one hand, this is a critical issue for the
women's community and those who believe in choice, yet, on the other, no one is
comfortable with affirmatively supporting a procedure that can be so graphically
misrepresented by pro-lifers. It is important to note here that the right-to-lifers are
already engaging in a campaign that effectively depicts this procedure in an extremely
graphic and gruesome way -- and it is safe to assume that they will intensify this
effort when the bill comes up.
{
�A.
•
If we were to remain neutral, the women's groups would be extremely disappointed.
They would likely see neutrality as a signal that we are willing to compromise on
choice despite our otherwise strong record. We would also be allowing a clear victory
for the right-to-lifers without a fight.
•
If we oppose, with or without a veto threat, we will have the strong and active support
of the women's community. At the same time, there is no guarantee that we will be
able to mobilize opposition and or even find strong support in the medical community.
•
If we take a strong position on this issue, it will be critical -- yet very difficult -- to
it
define this debate on our terms; i.e. Challeng~'ng constitutionality and its
. inappropriate intervention in medical practice
is clear that we cannot win if we
argue this in terms of the credibility or safet of the procedure itself.
IV.
(
RECOMMENDATION
We recommend opposing the bill without a veto threat for now. This bill poses a significant
threat to the Constitutional protection of a woman's right to choose. It is the first time
Congress has gotten into the business of regulating particular procedures. No abortion
procedure is particularly pleasant, and it will always be politically difficult to defend any
particular procedure. But if Congress begins to criminalize abortion procedures one by one, it
will gradually erode the right it has been unable to eliminate by other legislative means.
At this point, for the House vote, it seems sufficient to state our strong opposition without a
veto threat. It is unclear when or in what form this legislation will come to the Senate so we
may want to wait until a later point to make a decision on vetoing the bill.
cc:
Abner Mikva
James Castello .
Martha FOle y/
Elena Kagen'
George Stephanopoulos
Pat Griffin
Barbara Chow
Alexis Herman
Betsy Myers
Karen Hancox
Chuck Kieffer
Barbara Woolley
Judy Gold
/
/
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Elena Kagan
Description
An account of the resource
<div>
<p>Elena Kagan worked as Associate White House Counsel from 1995-1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999.</p>
<p>During her work at the White House Justice Kagan worked on many topics including, but not limited to: AIDS, budget appropriations, campaign finance reform, education, health, labor, race, tobacco, Native Americans, and welfare.</p>
<p>In 1999 President Clinton nominated Kagan to the U.S. District Court of Appeals, no hearing was ever scheduled and she was thereby never confirmed.</p>
<p>Note: These records were made available in response to a <a href="http://clinton.presidentiallibraries.us/freedom-of-information-act-requests">Freedom of Information Act (FOIA)</a> request, FOIA 2009-1006-F. This collection contains both records created by Elena Kagan and records concerning Elena Kagan. </p>
<p><strong>Descriptions of the Sub Collections:</strong></p>
<ul><li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+White+House+Counsel+Files&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">White House Counsel Files</a></strong><br /> These records consist of files created and received by Elena Kagan when she served as Associate Counsel to President Clinton from 1995 to 1996. The files include but are not limited to records concerning Amtrak, campaign finance reform, gaming/gambling (especially as it relates to Native Americans), timber, regulatory reform, and welfare. The records include memoranda, notes, correspondence, articles, reports, executive orders, bills, and directives.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+Domestic+Policy+Council+Files&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Domestic Policy Council Files</a></strong><br />These records contain files created and received by Elena Kagan when she served as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999. The files include records concerning domestic policy topics such as AIDS, budget appropriations, campaign finance reform, education, health, labor, race, tobacco, and welfare. The records include memoranda, correspondence, articles, and reports.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=White+House+Staff+%26+Office+Files+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">White House Staff Files re Elena Kagan</a></strong><br />These records are compiled from a variety of staff office files including the Chief of Staff, Personnel, Office of First Lady, Counsel, and DPC and include correspondence, memorandum, forms, and reports all concerning or having to do with Elena Kagan.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=White+House+Office+of+Records+Management+Files+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">White House Office of Records Management Files (WHORM)</a></strong><br />These records are from the White House Office of Records Management (WHORM) subject file series. The Clinton Presidential Library inherited a document-level index maintained by WHORM during the Clinton Administration which tracked some incoming correspondence and other documents as they were circulated throughout the White House and filed by WHORM. The records contain files created and received by Elena Kagan that were tracked by the WHORM Subject File index. The files include records related to a variety of topics such as memoranda, correspondence, and Domestic Policy Council weekly reports. The records are tracked by an alpha/numeric code, and are listed as such.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+1999+Nomination+to+U.S.+Court+of+Appeals&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Elena Kagan's 1999 Nomination to U.S. Court of Appeals</a></strong><br />After serving as the Deputy Director of the Domestic Policy Council, Elena Kagan was nominated to serve on the U.S. Appeals Court for the District of Columbia (D.C. Circuit) in1999. Her nomination expired in 2000 without Senate action. The files in this opening contain records from the White House Staff and Office Files, Counsel’s Office and Presidential Personnel, concerning her nomination. The records consist of Senate Judiciary Committee questionnaires, correspondence, law review files, news articles, briefs, and press briefings.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Email+Received+by+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Email Received by Elena Kagan</a></strong><br />These records consist of email received by Elena Kagan during her time as Associate White House Counsel from 1995-1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999. In addition to the email proper, these messages include forwards, reply chains, and attachments. The attached documents include notes, memorandum, articles, reports, executive orders, bills, and directives. These email concern a myriad of topics including but not limited to Amtrak, campaign finance reform, gaming/gambling (especially as it relates to Native Americans), timber, regulatory reform, welfare and domestic policy topics such as AIDS, budget appropriations, education, health, labor, race, and tobacco.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Email+Sent+by+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Email Sent by Elena Kagan</a></strong><br />These records consist of email sent by Elena Kagan during her time as Associate White House Counsel from 1995-1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997-1999. In addition to the email proper, these messages include forwards, reply chains, and attachments. The attached documents include notes, memorandum, articles, reports, executive orders, bills, and directives. These email concern a myriad of topics including but not limited to Amtrak, campaign finance reform, gaming/gambling (especially as it relates to Native Americans), timber, regulatory reform, welfare and domestic policy topics such as AIDS, budget appropriations, education, health, labor, race, and tobacco.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Elena+Kagan%27s+Records+re+Native+Americans&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Elena Kagan's Records re Native Americans</a></strong><br />These records were created or received by Elena Kagan during her service as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). These ten folders were previously opened as part of a Freedom of Information Act request related to Native Americans (FOIA case <a href="http://www.clintonlibrary.gov/Documents/Finding-Aids/2006/2006-0197-F%28seg%203%29.pdf" target="_blank">2006-0197-F</a>).These records consist of memoranda, emails, reports, notes, and clippings.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Additional+Materials+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Additional Materials re Elena Kagan</a></strong><br />These records were taken from the files of Elena Kagan. They include memos to, from, and relating to Elena Kagan’s work on Domestic Policy issues. The records include some memos from Elena Kagan to President Clinton.</li>
<li><strong><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=70&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Federal+Email+re+Elena+Kagan&range=&collection=&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">Federal Email re Elena Kagan</a></strong><br />The federal email re: Elena Kagan consists of 114 email messages that were part of the Federal side of the Clinton White House. The email generally consists of summaries of meetings or telephone conversations in which Elena Kagan was a participant.</li>
</ul></div>
Identifier
An unambiguous reference to the resource within a given context
2009-1006-F
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Clinton Presidential Records: Automated Records Management System
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Creator
An entity primarily responsible for making the resource
Office of the Counsel to the President
Domestic Policy Council
First Lady's Office
White House Office of Records Management
Chief of Staff
White House Office for Women's Initiative and Outreach
Automated Records Management System
Tape Restoration Project
Security Office
Presidential Personnel
Date
A point or period of time associated with an event in the lifecycle of the resource
1995-1999
Extent
The size or duration of the resource.
2945 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Original Format
The type of object, such as painting, sculpture, paper, photo, and additional data
Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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Counsels Office - Memos to POTUS etc.
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Elena Kagan
Identifier
An unambiguous reference to the resource within a given context
2009-1006-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Elena Kagan's Domestic Policy Council Files
<a href="http://catalog.archives.gov/id/612954" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
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Adobe Acrobat Document
Publisher
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Clinton Presidential Library & Museum
Medium
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Reproduction-Reference
Date Created
Date of creation of the resource.
6/4/2010
Source
A related resource from which the described resource is derived
DPC - Box 069 - Folder 008
612954