Elena Kagan and Partial-Birth Abortion

Here is an eye-opening article at National Review Online, written by Shannen Coffin on Supreme Court nominee (and undoubtedly future Justice) Elena Kagan and her crucial role in coming up with (dishonest) language to defend partial-birth abortion.
In judicial rulings on partial-birth abortion, one of the most important documents was produced by a “select panel” of the American College of Obstetricians and Gynecologists (ACOG). The Supreme Court used this document as a key example of medical opinion on partial-birth abortion, as it said that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” This language was used extensively in defeating partial-birth-abortion bans.
But in point of fact, the select panel of the AOG actually wrote in their initial draft that they “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”
Mr. Coffin writes:

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 Miss Kagan sought to solve 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.

Yuval Levin writes:

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. A White House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded? You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the Bush White House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.
Apparently scientific integrity only matters as long as it doesn’t somehow infringe on abortion. That, of course, was always the lesson of the stem-cell debate in the Bush years anyhow. But clearly it started earlier. It’s good to know where Kagan’s priorities are. Let’s hope senators are paying attention.

Justin Taylor