Megyn Kelly gets it wrong on Kagan's abortion rights record

Fox News' Megyn Kelly falsely claimed that the health exception to a ban on late-term abortions that Supreme Court nominee Elena Kagan advised President Clinton to endorse “essentially” would have allowed women to “get an abortion in the third trimester” because of “a headache.” In fact, Kagan advised Clinton to endorse a proposal banning late-term abortions that included a much narrower health exception.

Kelly falsely claims Kagan advised Clinton to veto “partial-birth” abortion ban over lack of broad health exception

Kelly: Kagan advised Clinton to veto ban because “it needed a health exception,” which could allow “a headache” to justify partial birth abortion. Discussing issues Republicans were likely to use to attack Kagan during her Supreme Court confirmation hearing, Kelly distorted Kagan's record on abortion. From the June 29 edition of America's Newsroom:

KELLY: And secondly, abortion, partial-birth abortion in particular. She was one of the people who persuaded President Clinton to veto a ban -- to not allow a ban on partial-birth abortion because she said it needed a health exception, and President Clinton followed that advice. And it took until George Bush got into office to re-institute that ban.

And critics of partial-birth abortion, a gruesome procedure, say you put a health exception into that ban and women -- women can go in essentially who abuse the law for a headache, and get an abortion in the third trimester in a way that's very gruesome. So she'll be cross-examined on that by the pro-lifers on the GOP side.

REALITY: Kagan advised Clinton to endorse ban with narrow health exception that would apply only with physician-certified risk of “grievous injury” to pregnant woman's health. In a May 1997 memo, Kagan and her boss, Bruce Reed, advised Clinton to endorse a proposal that would ban abortions after the fetus has become viable with a narrowly drawn health exception that would apply only if a physician “certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health.” From the memo:

As you know, the Senate is taking up the Partial Birth Abortion Act (HR 1122) this afternoon. We expect Senator Daschle and Senator Feinstein to offer substitute amendments during the course of the debate. We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals.


Most critically, both amendments contain a health exception, though of different kinds. The Feinstein legislation would exempt an abortion if, “in the medical judgment of the attending physician, the abortion is necessary to ... avert serious adverse health consequences to the woman.” This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician “certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health.” “Grievous injury” is then defined as “a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition.”



We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto. You have spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined, health exception -- as you said in a letter to the Cardinals, not a health exception that “could be stretched to cover most anything,” but a health exception that “takes effect only where a woman faces real, serious adverse health consequences.”

* Text corrected.