As Elena Kagan attempts to sail through a confirmation process to take her first job as a judge on the nation’s highest court, National Review’s Shannen Coffin discovers one of the reasons why the Clinton Library seemed determined to keep records of her previous work quiet. The issue of partial-birth abortion had raged during the Clinton years, with the President ultimately vetoing a measure by Congress to ban the procedure, but Nebraska banned it on their own. In order to defeat that law, Kagan manipulated a report by a panel from the American College of Obstetricians and Gynecologists to fool the Supreme Court into thinking that doctors had supported the idea that it was a medically necessary procedure, when in fact ACOG couldn’t specify a single set of circumstances where it would save the life of the mother:
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.”
In fact, Kagan noted that ACOG’s draft response would be disastrous to the Clinton administration’s efforts to fight the Nebraska law. Instead, Kagan advised them to add language that seriously misrepresented their initial consensus, which was that the partial-birth abortion procedure wasn’t medically necessary anyway. Kagan asked them to insert the language that the Supreme Court ruled was so dispositive:
“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.”
In other words, that conclusion did not come from the doctors, or from scientific analysis. It was a political position that ACOG agreed to quietly adopt, and which the Clinton administration misrepresented to the Supreme Court. And Kagan was the author of that strategy, both literally and figuratively.
Should the Senate confirm the nomination of a potential justice to the Supreme Court when she was a party to this kind of manipulation and deception? Shouldn’t we expect a higher standard of ethics from nominees to lifetime positions at the highest levels of authority?