KAGAN’S ABORTION DISTORTION
How the Supreme Court nominee manipulated the statement of a medical organization to protect partial-birth abortion.
by Shannen W. Coffin
NATIONAL REVIEW ONLINE
June 29, 2010
When President Obama promised in his inaugural address to “restore science to its rightful place,” he never explained what that rightful place would be. Documents recently released in connection with the Supreme Court nomination of Solicitor General Elena Kagan suggest an answer: wherever it can best be used to skew political debate and judicial outcomes.
The documents involved date from the Clinton White House. They show Miss Kagan’s willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion. As such, they reflect poorly on both the author and the president who nominated her to the Supreme Court.
There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.
Years later, when President Bush signed a federal partial-birth-abortion ban (something President Clinton had vetoed), the ACOG official policy statement was front and center in the attack on the legislation. U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.
Like the Supreme Court majority in the prior dispute over the Nebraska ban, Judge Kopf asserted that the ACOG policy statement was entitled to judicial deference because it was the result of an inscrutable collaborative process among expert medical professionals. “Before and during the task force meeting,” he concluded, “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.
In other words, what medical science has pronounced, let no court dare question. The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG’s policy statement at the suggestion of then–Clinton White House policy adviser Elena Kagan.
The task force’s initial draft statement did not include the statement that the controversial abortion procedure “might be” the best method “in a particular circumstance.” Instead, it said that the select ACOG panel “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”
Notwithstanding its allegedly apolitical nature, ACOG shared this draft statement with the Clinton White House. Miss Kagan, then a deputy assistant to the president for domestic policy, already knew ACOG’s stance as a result of a July 1996 meeting at the White House, at which ACOG representatives told administration officials — according to a Kagan memorandum [PDF] — that “in the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health.”
Upon receiving the task force’s draft statement, Kagan noted in another internal memorandum [PDF] that the draft ACOG formulation “would be a disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation.” Any expression of doubt by a leading medical body about the efficacy of the procedure would severely undermine the case against the ban.
So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document [PDF] captioned “Suggested Options” — which she apparently faxed to the legislative director at ACOG — Kagan proposed that ACOG include the following language: “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.”
Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.) The judicial battles that followed led to two Supreme Court opinions, several trials, and countless felled trees. Now we learn that language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children was, in the end, nothing more than the political scrawling of a White House appointee.
Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.
— Shannen W. Coffin, an attorney in Washington, D.C., was the deputy assistant attorney general in charge of the defense of the federal Partial-Birth Abortion Ban Act during the Bush administration.
EDITORIAL: Kagan’s partial-birth extremism
Nominee’s radical abortion intervention abetted legalized infanticide
Wednesday, June 30, 2010
Elena Kagan has failed the ethical standards necessary for service on the Supreme Court. She also has shown herself to be an apologist not just for legalized abortion, but for legalized partial-birth abortion – a gruesome form of infanticide opposed by up to 75 percent of the American public. In yesterday’s Senate Judiciary Committee hearings, Ms. Kagan utterly failed in her attempts to explain away her unethical actions on behalf of an immoral policy. After these revelations, no senator claiming to be a moderate should be able to support Ms. Kagan.
Documents from Ms. Kagan’s service in Bill Clinton’s administration show her saying it would be a “disaster” if word got out that the American College of Obstetricians and Gynecologists (ACOG) “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.” She was so ideologically committed to keeping partial-birth abortions legal that she didn’t want the full medical truth released without accompanying language that diluted the impact of the facts. In another memo, Ms. Kagan laments that it was “a problem” that Mr. Clinton might want to restrict such abortions to a greater degree than she did.
Ms. Kagan took it upon herself to draft language for ACOG to insert into its findings, and then she had the gall to present the amended statement to the president without acknowledging that it had been altered, for political reasons, at her direction. Ms. Kagan drafted language stating that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance.” This later became the linchpin of lower court fact-finding and the Supreme Court’s decision (largely reversed a decade later) that a ban on partial-birth abortions was unconstitutional. Without the language, those particularly inhumane abortions would have been banned a decade earlier.
As Jennifer Rosen noted yesterday on Commentary magazine’s Contentions blog, Ms. Kagan’s duty as a lawyer for the president, while the case advanced through the courts, was to have the administration correct the court’s misimpression that “they were relying on neutral, expert testimony.” Ms. Rosen, herself a lawyer, calls Ms. Kagan’s silence “a significant ethical breach.”
Indeed, Rule 3.3 of the American Bar Association’s Model Rules of Professional Conduct requires that if “a lawyer comes to know of [the] falsity [of evidence or testimony], the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
Ms. Kagan’s career repeatedly has involved efforts to use the courts for political ends. Her work on partial-birth abortion is a perfect, and perfectly egregious, example. Her nomination should be terminated by the Senate.
UPDATE, THURSDAY, 01 JULY 10
Kagan on the ‘Right’ to Suction Someone’s Brains
Thursday, July 01, 2010
By Terence P. Jeffrey
Listen to Commentary Podcasts
Elena Kagan was not only to the left of President Bill Clinton on partial-birth abortion, but a fair reading of a memo she wrote in 1996 indicates she believed Clinton was a little squishy on the issue.
The memo, recently released by the Clinton Presidential Library, demonstrates Kagan was intent on preserving an absolute right to kill “pre-viable” babies—even if it had to be done by sucking out a baby’s brains.
In a partial-birth abortion, a doctor pulls a baby feet-first from the womb until only the head remains inside. Then the doctor puncture’s the baby’s skull and suctions out his brains.
The moment of “viability” in pregnancy simply means the point at which a baby’s life can be preserved outside the womb. It is no way linked to the God-given rights of the baby. When a machine can sustain an embryo from conception, conception and “viability” will be simultaneous.
Yet, Kagan wanted to maintain this movable moment as an absolute barrier to state restrictions on abortion—even if the restriction simply said: Don’t suction the baby’s brain.
By early 1996, both the House and Senate had passed versions of the partial-birth abortion ban, and neither version included a “health” exception. The omission was intentional. Federal judges had interpreted “health” to mean virtually anything a doctor says it means. A partial-birth abortion ban with a “health” exception would have been no ban at all.
Inside the Clinton administration, there was a discussion: What kind of partial-birth abortion ban should Clinton be ready to sign? What kind should he be ready to veto?
The White House Counsel’s office—where Kagan worked as an associate counsel—and the Justice Department’s Office of Legal Counsel (OLC) had a slight difference of opinion.
This difference was explained in a Feb. 2, 1996, memo to Clinton signed by then-White House Chief of Staff Leon Panetta, then-White House Counsel Jack Quinn, then-senior White House adviser George Stephanopoulos and Nancy-Ann Min (now Nancy-Ann DeParle), who then served as associate director for health in the Office of Management and Budget and who now serves as director of the Office for Health Reform in President Obama’s White House.
The memo detailed four possible amendments to the partial-birth abortion ban. The first would ban these abortions both before and after viability with exceptions for the life of the mother and to “avert serious adverse health consequences to the women.” The second would treat post-viable partial-birth abortions just like the first, but it would allow the partial-birth abortion of pre-viable babies for non-health reasons if—once the woman elected to have an abortion she did not need to spare her life or her health—it was determined that “the use of the partial-birth abortion procedure (as opposed to other abortion procedures) is necessary to avert a threat to the life or the serious health interests of the mother.”
The third and fourth options allowed partial-birth abortions on pre-viable babies for any reason, with the third allowing them on post-viable babies for life and “serious” health reasons and the fourth dropping the adjective “serious” from the health exception.
The memo from Panetta et al. to Clinton noted that the OLC thought only the fourth option was constitutional. The White House Counsel’s office believed options two, three and four were constitutional.
Despite this advice, President Clinton decided that he did not want to make any distinction between pre-viable and post-viable babies in a partial-birth abortion ban. Kagan was incredulous.
“As you recall, Leon (Panetta) suggested to you a few days ago that the President does not want to distinguish at all between the pre-viability and post-viability stages of pregnancy in regulating partial-birth abortions,” she wrote in a Feb. 15, 1996, memo to White House Counsel Quinn. “I am not sure why the President would resist this distinction; he, the public, and the Court all have accepted the meaningfulness of the distinction in a wide variety of contexts.”
Kagan argued that only option one fit Clinton’s view—and that was not only unconstitutional but at odds with the views of pro-abortion groups.
“First,” said Kagan, “it is unconstitutional, because it prohibits use of the partial-birth abortion procedure in any pre-viability case in which the woman desires the abortion for non-health related reasons, even if the partial birth abortion procedure (as compared to other procedures) is necessary to protect her from serious adverse health consequences. Second, the groups will go crazy, exactly because the approach effects this broadscale pre-viability prohibition.”
As Jane McGrath of CNSNews.com has reported, handwritten “suggested” language for a draft American College of Obstetricians and Gynecologists (ACOG) statement on partial-birth abortion found in Kagan’s 1996 White House files—that claimed it “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman”—somehow ended up verbatim in ACOG’s final statement on the issue. The language was then quoted in the Supreme Court decision throwing out Nebraska’s ban on partial-birth abortion.
Kagan has no respect for the God-given right to life. Before Obama nominated her to the court, her greatest impact on American life was in the fight to preserve—thankfully, only temporarily—the “right” of a mother to hire a doctor to suction out her baby’s brains.