Kagan on Partial-Birth Abortion, Take Two

I wrote here about Elena Kagan’s role as point person for the Clinton administration on partial-birth abortion, and the fact that she collaborated in twisting a report by the American College of Obstetrics and Gynecology in a more pro-partial-birth abortion direction. None of what follows will make much sense unless you have read last night’s post, so if you haven’t, please do, and then return here.
Kagan was asked about these events today by Orrin Hatch. In order to provide full context for our readers, I will quote the exchange in its entirety:

HATCH: OK. Well, let me switch topics again, this time to abortion. When Congress debated the ban on partial-birth abortion, one issue was whether this particularly gruesome abortion method was medically necessary. The American College of Obstetricians and Gynecologists, or ACOG, they call it, is a natural source of medical opinion on this subject.
According to the documents we received, you wrote a memo to your superiors in the Clinton White House about this. You noted that the American College of Obstetricians and Gynecologists were considering a statement that its experts panel found no circumstances under which partial-birth abortion was the only option for saving the life or preserving the health of the woman.
You wrote, quote, “This, of course, would be a disaster,” unquote. That’s something that — that does bother me, because it would be a disaster, you wrote, because ACOG opposed the ban on partial-birth abortion, if anyone ever found out — and you wrote that it could leak — even if ACOG did not officially release its original statement, it could have negative political consequences.
So you drafted alternative language that would say that partial-birth abortion, quote, “may be the best and most appropriate procedure in particular circumstances to save the life or preserve the health of the woman,” unquote.
Now, that’s a very different spin and obviously a more politically useful spin. The ACOG executive board copied your language verbatim into its final statement. Your language played an enormous role in both legal and political fights over banning partial-birth abortion.
The Supreme Court relied on it when — when striking down the Nebraska ban in Stenberg v. Carhart. And I’m really stunned by what appears to be a real politicalization of science. The political objective of keeping partial-birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry and that they had — and they had concluded.
Did you write that memo?
KAGAN: Senator, with respect, I — I don’t think that that’s what happened here.
HATCH: Well, I’m happy to have you clarify it. I don’t — that’s my question. Did you write that memo?
KAGAN: I’m sorry, the memo which is…
HATCH: The memo that basically caused them to — to go back to the language of medically necessary that was the big issue to begin with.
KAGAN: Yes, well, I’ve — I’ve seen the document. And the document is…
HATCH: But did you write it, that — your memo?
KAGAN: The document is certainly in my handwriting. I don’t know whether the document was a product of a conversation that I had had with them.
KAGAN: If I could just go back, Senator Hatch.
KAGAN: This was an incredibly difficult issue for everybody who was associated with it, for obvious reasons. President Clinton had strong views on this issue. And what he thought was that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman. And those were always his principles.
And we tried over the course of the people of time when this statute was being considered actually twice to get him absolutely the best medical evidence on this subject possible. And it was not easy, because as everybody in Congress knows, different people said different things about this, there was conflicting evidence, and we tried to do our best to bring all the evidence, all the conflicting views to his attention.
In the course of that, we did indeed speak with ACOG. ACOG had an interest in this statute, and ACOG had views about the statute.
What ACOG thought and always conveyed to us was two things. What ACOG thought was that, on the one hand, they couldn’t think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case, but, second, on the other hand, that they could think of circumstances in which it was the medically best or medically most appropriate procedure, that it was the procedure with the least risk attached to it, in terms of preventing harm to the women’s health.
And so we knew that ACOG thought both of these things. We informed the president, President Clinton, of that fact. There did come a time when we saw a draft statement that stated the first of these things which we knew ACOG to believe, but not the second, which we also knew ACOG to believe. And I had some discussions with ACOG about that draft.
HATCH: My time is about up. Let me just ask that question again. Did you write, quote, “This, of course, would be a disaster,” unquote?
HATCH: … handwriting. You didn’t get that from the…
KAGAN: No, no, no. You’re exactly right. I’m sorry. I didn’t realize what you were referring…
HATCH: That’s what I wanted to know.
KAGAN: Yes, yes. No, that’s exactly right. And — and the disaster would be if the statement did not accurately reflect all of what ACOG thought, both — I mean, that there were two parts of what ACOG thought.
And I recall generally, not with any great specificity, but recall generally talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them, that there was both not the only procedure, but also that it was in some circumstances the medically best procedure.
And in their final statement, that — that sentence, that it was — it was not the only procedure, of course, remained, because that is what they thought. But we did have some discussions about clarifying the second aspect of what they also thought, which was that it was in some circumstances the medically most appropriate procedure.
And so I think that this was all done in order to present both to president — both to the president and to Congress the most accurate understanding of what this important organization of doctors believed with respect to this issue.
HATCH: Mr. Chairman, I just have one or two sentences I’d like to say, and then I’ll…
LEAHY: I’ll give you extra time.
HATCH: Thank you, Mr. Chairman. Well, I’ll tell you this bothers me a lot, because I know that there are plenty of doctors in ACOG who did not believe that partial- birth abortion was an essential procedure and who believed that it was really a brutal procedure, and it was a constant conflict there.
And — and, as you know, many in Congress came to the conclusion it was a brutal procedure, too, that really was unjustified. That bothers me that you — that you intervened in that particular area in that way. Well, that is all I’ll say about it, but I just wanted you to be aware of that that bothers me.
KAGAN: Senator Hatch, there was no way in which I would have or could have intervened with ACOG, which is a respected bodies of physicians, to get it to change its medical views on the question. The only question that we were talking about was whether this statement that they were going to issue accurately reflected the views that they had expressed to the president, to the president’s staff, to Congress and to the American public.
I do agree with you. This was an enormously hard issue. And President Clinton found it so, and — and thought that the procedure should not be used except in cases where it was necessary for life or health purposes. And we tried to get him the best information we could about the medical need for this procedure, something that was not always easy, and tried in all of the statements that he made to make sure — and — and any statements, other statements that we were aware of to make sure that that information was accurately conveyed to the American public.

Let’s break that down. First, Kagan was a vigorous advocate for partial-birth abortion. Her memo to her superiors in the Clinton administration said that it “would be disaster” if the ACOG report came out in its original form, saying that the panel “could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” Today, Kagan tried to spin that statement, but her attempt was disingenuous. In her memo, she obviously referred to the political consequences if this respected physicians’ group were to acknowledge that partial-birth abortion is never medically necessary–that was the “disaster” that she tried to avert.
Second, in my post yesterday, I misunderstood one fact. I thought that Kagan’s “suggested option,” “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” was substituted for the ACOG panel’s original language, “[we] could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” That was not correct; rather, as Kagan said, both of those sentences were included in the final version of the report. While they certainly point in opposite directions, they are not technically inconsistent.
Third, Kagan’s responses failed to deny the essence of the scandal. On the contrary, she admitted that on behalf of the Clinton administration, she worked behind the scenes to influence the supposedly “scientific” verdict of the ACOG so as to make it more friendly to partial-birth abortion. Her claim that she was merely trying to “clarify” or remind ACOG of what that group really thought is a classic lawyer’s dodge. It stands unrebutted that Kagan drafted pro-partial-birth abortion language and sent it to an ACOG political operative, with the result that Kagan’s language was included in the final version of the panel’s report, even though Kagan is not an obstetrician or gynecologist, and has no expertise in any relevant field. Rather, Kagan was acting as a political representative of the Clinton administration.
This is tremendously important. The ACOG report played a vital role both in public opinion about the partial-birth abortion issue, and in the federal courts’ approach to that issue. That can be seen in the district court opinion by federal judge Richard Kopf in Carhart, et al. v. Ashcroft, in which Kopf found the federal law banning partial-birth abortion unconstitutional. (That holding was ultimately reversed by the United States Supreme Court.) Judge Kopf accorded the ACOG panel report, with its most vital language drafted by Elena Kagan, a privileged status:

I did not consider certain portions of the record sufficiently helpful or trustworthy so as to warrant inclusion in the summary. … Furthermore, I have summarized only the statements of the two leading national medical associations–that is, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG)–regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry.

Further, Judge Kopf made it clear that he accorded this elevated status to the ACOG report because of what he understood to be its pristine origins:

In forming the task force’s proposed ACOG Statement on Intact Dilation and Extraction, the members relied on their own education and expertise, obstetrics and gynecology textbooks, CDC information, published information on the safety of D&E and the D&X subset of D&E, and information about the safety of available alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview or receive testimony from doctors, and did not draft and circulate individual position papers or statements for review and comment by other task force members. (Ex. 115, Test. Dr. Cain 143-47, 149-50, 171-73.) Before and during the task force meeting, neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed in the ACOG Statement on Intact Dilation and Extraction. (Ex. 115, Test. Dr. Cain 151-55.)

Judge Kopf evidently did not know that the ACOG panel’s report was co-written by a Clinton administration political operative, Elena Kagan. This misrepresentation of the ACOG report as a pure scientific product, entitled to privileged status by the courts, strikes me as a fraud of major proportions. In fact, it was a political document, intended to bolster the case for partial-birth abortion, under the false flag of scientific objectivity. And it was Elena Kagan who helped to perpetrate this fraud on behalf of the Clinton administration.
Does this disqualify her from service on the Supreme Court? That is certainly a judgment call, and must be evaluated in the context of other issues, including her attempt, as dean of the Harvard Law School, to circumvent federal law with respect to military recruiting. For the moment, I would say this: Ms. Kagan’s career appears to be that of a left-wing political operative, not that of a lawyer or legal scholar devoted to an objective application of the laws.

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