Kagan: Abortion still protected when necessary to health of mother

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Karen Bleier/AFP/Getty Images

US Supreme Court nominee Elena Kagan testifies on the second day of her confirmation hearings on Capitol Hill on June 29, 2010 in Washington, DC.

Republicans on the Senate Judiciary Committee today asked U.S. Solicitor General Elena Kagan about her decision to keep military recruiters off the Harvard Law School campus. They also asked whether she considered herself a “legal progressive.” Democrat Dianne Feinstein questioned the Supreme Court nominee about abortion.

It was the first discussion of abortion at the confirmation hearing for Elena Kagan.

Senator Dianne Feinstein referenced 30 years of legal decisions on the topic, starting with Roe v. Wade. All contained language that would allow abortions that protect the life of the mother. The Democrat from California then referred to the most recent high court decision that does not contain that guarantee. "Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?"

Kagan said the 2007 Gonzales v. Carhart decision that upholds a ban on partial birth abortion is appropriate because of what she called “the medical uncertainty of the procedure.”

"Putting that procedure aside," she said, "I think that the continuing holdings of the court are that the woman's life and that the woman's health must be protected in any abortion regulation."

Feinstein also questioned Kagan about recent Supreme Court decisions to restrict local gun control laws. The solicitor general said that even if a judge thinks something is wrong, that’s not reason enough to throw out the law.

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