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Media Matters suggests that no discrepancies exist between Elena Kagan’s involvement with the American College of Obstetricians & Gynecologists’ (ACOG) statement on “partial-birth abortion” during her time in the Clinton White House and Kagan’s testimony before the Senate Judiciary Committee last month.  The following addresses Media Matters’ claims and points out Kagan’s misrepresentation of her involvement in this debate and the need for further investigation into Kagan’s involvement with ACOG and its “medical” opinion.

1. Media Matters claims: “In reality, documents back up Kagan’s testimony that ACOG said procedure was sometimes ‘the medically best’ one”

The document which could be argued to “support” Kagan’s testimony is ACOG’s final statement, which was released only after Kagan determined ACOG’s initial draft to be “a disaster,” and drafted an amendment to say partial-birth abortion may be “the best.”  ACOG’s original language in its draft statement did not state that partial-birth abortion is sometimes “the medically best” procedure.  On the contrary, ACOG’s “select panel” drafted a medical report which stated that they “could identify no circumstances under which [an intact dilation and extraction] would be the only option to save the life or preserve the health of the woman.”  Thus, it was only after Kagan interfered with the medical opinion of ACOG that a final draft was released containing Kagan’s suggested language that the procedure may be “medically best.”

2. Media Matters claims: “According to sworn testimony, ACOG’s task force on ‘partial-birth abortion’ had evidence that, in some circumstances, the procedure was ‘clearly the best choice.’”

Media Matters cites the testimony of Dr. Joanna Cain during litigation over the Partial-Birth Abortion Ban as “evidence” to support its claim that partial-birth abortion is, in some circumstances, “clearly the best choice.”  However, the testimony by Dr. Cain, the President of ACOG and a select panel member, is evasive.  She testified abstractly that she was “aware of….circumstances” that “an expert panel could identify…”  Dr. Cain never says–and could not say–that the ACOG panel in October 1996 did in fact identify any circumstances where the procedure was the best choice because, as AUL’s Report reveals, the panel in Oct 1996 never identified such a circumstance.

Without consulting the panel, the ACOG executive board unilaterally added the statement—which we now know was drafted by Kagan—that D&X “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman….”  The statement was never approved by the select panel or voted upon by ACOG’s membership.  In the Nebraska partial-birth abortion case, Dr Sprang testified that ACOG “couldn’t come up with a single example where it would be…the best, most appropriate alternative to save the health of the mother.”[1]

Eight years later in retrospect, Dr. Cain could only say in the abstract that “a” panel “could” identify such a circumstance.  She admits that no data was available to support the Panel in 1996, and that no data existed eight years later to back her statement in 2004.  Dr. Cain could not honestly say that “the other options led to a higher likelihood of death or recurrence of disease” because no studies existed in 1996 or 2004 that compared D&X and any other “option” like D&E.

Dr. Cain relied on guess or intuition, but not medical fact.

Thus, AUL’s original assertion is still correct:  the ACOG Task Force had no data to support such a statement and no data supported Kagan’s political amendment to the ACOG Policy Statement in December 1996-January 1997.

3. Media Matters claims: “ACOG’s final statement on the “partial-birth abortion” bill does not conflict with its draft statement or the findings of its medical panel.”

First, it should be noted that ACOG’s “select panel” of medical experts was not even consulted prior to the ACOG’s release of its final draft which added Kagan’s amendment.

Second, as William Saletan pointed out in a July 3, 2010 article appearing in Slate, Kagan “reframed” the ACOG conclusion and “changed its emphasis.”[2] It was not a mere clarification.  As Saletan noted, Kagan altered both the political and the legal effects of ACOG’s statement: “With this clever phrasing, she obscured the truth: By reframing ACOG’s judgments, she altered their political effect as surely as if she had changed them.”[3]

By virtue of Kagan’s amendment, ACOG’s policy was significantly changed from D&X being not a necessary procedure to D&X possibly being necessary for “health” reasons.  “No circumstances” under which partial-birth abortion “would be the only option to…preserve the health” was circumvented by “may be the best or most appropriate in a particular circumstance to…preserve the health of a woman.”  This is a contradiction, not a mere addition.

4. Media Matters claims: “Kagan advocated for a middle position on ‘partial birth’ and late-term abortions.”

In a 1997 memo to President Clinton that Media Matters cites as proof of Kagan’s “middle position,” Elena Kagan does not suggest the President support the partial-birth abortion ban.  Instead, she suggests the President support the amendment offered by Senator Daschle – a “ban” that was rendered meaningless by its exceptions.  No single abortion, partial-birth or otherwise, would have been prohibited by Daschle’s amendment.

Furthermore, Kagan’s memo implies she believed even this phony ban was unconstitutional.  After citing a Department of Justice opinion that the Daschle language would be unconstitutional (without offering any advice to the contrary), she urges the President to support it, her rationale being that his support would offer political cover.[4]

In fact, prior to advocating for this pragmatic approach, Kagan recommended that President Clinton support an approach that would allow a woman to have a partial-birth abortion under a “health exception” that extended beyond what the Court required in Roe and Doe (at the time, President Clinton was inclined to support a ban that would extend to the entire pregnancy, but contain a Doe-modeled health exception.)[5] Under Kagan’s “health exception,” however, a woman could have a partial-birth abortion simply because an abortionist thought it was the preferable type of abortion for her health, regardless of whether she actually “needed” an abortion for health reasons at all.  In other words, her “ban” was not really a ban under any sense of the word.[6]

Media Matters also cites the Stenberg v. Carhart decision of 2000 that struck down a “more restrictive abortion law than the one Kagan advocated.”  Though not spelled out, Media Matters is presumably arguing that Kagan was a moderate because she supported the Daschle amendment which fell somewhere in the middle of the Supreme Court ruling and the law it struck down.

What Media Matters neglects to mention is that in Stenberg the Supreme Court relied on the very language that Kagan wrote to strike down a partial-birth abortion ban.

It is also worth repeating that Kagan only “advocated” the Daschle amendment for political cover and did not support the amendment as constitutional.

Put in context, Media Matters’ argument becomes, “In 2000, the Supreme Court relied on Elena Kagan’s amendment to the ACOG statement to rule that a more restrictive abortion law than the one Kagan advocated (President Clinton support of an amendment for political cover) was unconstitutional.”

Thus, the only thing this argument shows is that Elena Kagan holds extreme views on partial-birth abortion, and her political advocacy impacted case law at the highest level.

Importantly, in 2007 the Supreme Court upheld the Partial Birth Abortion Ban of 2003 (which does not include an exception for “health” and applies to the entire pregnancy) in Gonzales v. Carhart, over ten years after Kagan advised President Clinton that his much weaker “ban” was unconstitutional because it applied to the entire pregnancy[7]

Elena Kagan never advocated a “middle position” on partial-birth abortion.  What Kagan’s memos show is a consistent effort to render any ban on the barbaric procedure meaningless and her belief that any true restriction on the procedure would be unconstitutional.

Conclusion

In conclusion, it is clear that Kagan was intricately involved with distorting a medical statement relied upon by President Clinton and numerous courts and advocating against an effective partial-birth abortion ban.  During her Senate Judiciary Committee hearing, she defended herself as a mere scribe for ACOG and a lawyer serving the President.  However, if Kagan knew from other sources that ACOG held the view she expressed in her amendment, why did she pronounce their draft statement, which did not include that view, a “disaster”?  Her pronouncement that it was a disaster reflected the desperation that she felt for a medical fig leaf – without medical support for the continued legality of partial-birth abortion, the President had no basis for vetoing the ban. The complete timeline and context, outlined in AUL’s Report, demonstrates that Kagan was not merely a scribe, but was so involved with ACOG’s statement that she drafted an amendment with no medical evidence to support her political agenda.

[2] See William Saletan, When Kagan Played Doctor: Elena Kagan’s Partial-Birth Abortion Scandal, July 3, 2010, at http://www.slate.com/id/2259495/pagenum/all/#p2.

[3] Id.

[4] See AUL’s memo for a more in depth analysis of Kagan’s advice to President Clinton.

[5]See Memorandum from Elena Kagan to Jack Quinn (Feb. 15, 1996), http://www.clintonlibrary.gov/KAGAN%20DPC%201/DOMESTIC%20POLICY%20COUNCIL%20BOXES%2069-70.pdf, 179-180.

[6] See id.

[7] See the written testimony of Dr. Charmaine Yoest, page 21.