Shannen Coffin at National Review Online:
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 ofmedical 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 expertmedical 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.
John Hinderaker at Powerline:
Here is the shocking part: the ACOG report, as originally drafted, said almost exactly the opposite. The initial draft said that the 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.” That language horrified the rabidly pro-abortion Elena Kagan, then a deputy assistant to President Clinton for domestic policy. This is what Kagan wrote in a memo to her superiors in the Clinton White House:
Todd Stern just discovered that the American College of Obstetricians and Gynecologists (ACOG) is thinking about issuing a statement (attached) that includes the following sentence: “[A] select panel convened by 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.” This, of course, would be disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.
So Kagan took matters into her own hands: incredibly, she herself appears to have written the key language that eventually appeared in the ACOG report. Coffin writes:
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.)
This is an image of Kagan’s “suggested options” note; click to enlarge:
The note does appear to be in Kagan’s handwriting; you can see a sample of her writing here.
Unless there is some other interpretation of these documents that does not occur to me, it appears that Elena Kagan participated in a gigantic scientific deception.
Yuval Levin at The Corner:
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. AWhite 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 BushWhite 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.
Jennifer Rubin at Commentary:
This, as Yuval points out, is not only a shocking “violation of the boundary between scientific expertise and politics”; it is also an outright deception that was subsequently used in litigation by partial-birth-abortion defenders. The former deputy attorney general who defended the partial-birth-abortion ban during the Bush administration, Shannen Coffin, brought the story to light. He reminds us: “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.” Had the judge known it was not the work of scientific gurus but that of a Clinton staffer (”nothing more than the political scrawling of a White House appointee”), one can imagine he wouldn’t have spent a sentence, let alone 15 pages, on it.
Some senator should have the wherewithal to take this on and require that Kagan explain herself. Not only is it, if accurate, a disqualifying episode for a Supreme Court justice; it is grounds for a solicitor general to step down. And her failure to advise the courts — which believed they were relying on neutral, expert testimony — constitutes a significant ethical breach.
Joseph Lawler at The American Spectator:
Given the memos Coffin provides in his article, it’s hard to see how Kagan could explain away her significant rewriting of the statement, which directly affected policy relating to partial-birth abortion. But maybe she can. A senator should give her the opportunity during the hearings.
Byron York at The Washington Examiner:
Before the Senate Judiciary Committee a short time ago, Supreme Court nominee Elena Kagan appeared reluctant to admit that she wrote a 1996 Clinton White House memo aimed at altering a key medical group’s opinion of whether partial birth abortion is medically necessary. The memo, reported yesterday by National Review, has caused a stir in conservative circles because it appeared that Kagan, then a White House policy aide, put words in the medical group’s mouth in order to soften its position on the controversial procedure. But when Republican Sen. Orrin Hatch brought the subject up with Kagan, he had a hard time getting her to admit that she did, in fact, write the document in question.
“Did you write that memo?” Hatch asked.
“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”
“Did you write that memo?”
“I’m sorry — the memo which is?”
“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”
“Yes, well, I’ve seen the document — ”
“But did you write it?”
“The document is certainly in my handwriting.”
Although Kagan later explained her thinking in the memo — she said she was only trying to help the medical group express its true opinion — and it was clear that she did write the memo, she looked slippery in her attempt to avoid openly admitting that she did so. That won’t sit well with skeptical senators.
UPDATE #2: Ross Douthat