By Julian Pecquet - 06/24/10 06:45 PM EDT
1) How would Kagan rule in cases involving states that prohibit health insurance plans from participating in their insurance exchange if they cover abortions?
The healthcare reform law allows states to adopt such "opt out" legislation — Arizona, Mississippi and Tennessee have already enacted it — but AUL says Kagan argued against the 1991 Supreme Court decision that underpins their right to do so. In Rust v. Sullivan the court wrote that Congress’ decision not to fund abortion “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.” Kagan "extensively criticized" the decision, AUL says.
That was almost 20 years ago when she was on the faculty of the University of Chicago Law School, however; as a Supreme Court Justice, Kagan would be bound — to some extent — to respect the court's precedent.
2) How would she interpret President Barack Obama's executive order barring federal funds from being used to pay for abortions?
The healthcare reform law provides $9.5 billion for Community Health Centers, to which the executive order applies. But, the memo states, federal courts have "implied congressional intent to require abortion funding" when there is no statutory prohibition (there is no such prohibition in the healthcare reform law). Furthermore, AUL writes, "the Supreme Court has repeatedly affirmed that statutes cannot be 'extended' beyond their express terms by executive orders."
The AUL memo however does not provide any indication of Kagan's possible thinking on the executive order issue. And the same question could be asked of any sitting member of the court — including conservatives.
"If Kagan is confirmed to the Supreme Court," the memo concludes, "will she vote to strike down opt-out state laws per her criticism of Rust that the government may not favor child-bearing over abortion? Will she strike down the restrictions on abortion placed by the executive order on (Community Health Centers) as going beyond the words of the health care law? Senators need to ask, and America deserves an answer."