Does Elena Kagan believe the Constitution permits states to generally ban late-term abortions? That's what the man who appointed her said he believed in 2008 while campaigning for the presidency, but the Supreme Court has said otherwise for nearly four decades.

Barack Obama told a Christian magazine in 2008: "I have repeatedly said that I think it's entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don't think that 'mental distress' qualifies as the health of the mother."

As Jan Crawford Greenburg noted at the time, there was a problem with Obama's position: "The Court's insistence that laws banning abortions after the fetus is viable (now about 22 weeks) contain an exception to allow doctors to perform them if necessary to protect a pregnant woman's mental health." Indeed, Roe v. Wade held that states could ban abortions after the stage of "viability" "except" when the "life or health of the mother" was at stake, and Roe's companion case, Doe v. Bolton, defined "health" as "all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient." Later rulings did nothing to curtail the court's expansive definition of health.

So, the question for Kagan: Does the Constitution allow states to limit the health exception for late-term abortions to "serious physical issues"? If she says no, she would expose Obama's position in favor of a ban as a sham.

Of course, Kagan will probably try to dodge the question, but she'll have a tough time arguing that she hasn't considered the issue in before. She addressed it in a 1996 email about a potential partial-birth abortion ban to the White House counsel:

If I were the Republicans (and I wanted a bill, rather than an issue), I would respond to the President's letter by providing an exception for serious health consequences and then defining serious to exclude all psychological, mental, e~otional [sic] etc. health issues. This will lead to a very serious Walter problem -- mucn [sic] more serious than the mere use of the word "serious" -- because there is at least one SCt case (and probably more) that explicitly says that mental health is a facet of health just like any other. I just thought I'd warn you.

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