Kagan, Partial-Birth Abortion, and the “Proper Place” of Science

The big story surrounding Obama’s Supreme Court nominee, Elena Kagan, is that while she was working for the Clinton White House, she secretly drafted a “scientific opinion” for the American College of Obstetricians and Gynecologists claiming that partial-birth abortions were necessary. In other words:

  1. Kagan’s boss, President Bill Clinton, wanted partial-birth abortion to remain legal.
  2. The medical groups (ACOG and the AMA) admitted that there were no known cases of a partial-birth abortion being the only option.
  3. Kagan fixed this by telling these groups what they should say instead. In other words, she lied about the science, and got medical groups to do the same.
  4. ACOG’s brief was taken by the Supreme Court as medical expertise (unaware that it was written by a Clinton political appointee with no scientific expertise whatsoever).
  5. This brief was one of the reasons cited by the Court for striking down the partial-birth abortion ban.

James Taranto of the Wall Street Journal explains:

Shannen Coffin, who served as a deputy assistant attorney general in George W. Bush’s administration, has a revelation about Kagan that is something of a blockbuster. When the U.S. Supreme Court overturned Nebraska’s ban on partial-birth abortion in 2000, it relied in part on the scientific opinion of “a ‘select panel’ of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group” 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.”

It turns out the “scientist” who wrote these words was one Elena Kagan, a political aide in the Clinton White House.

In 1996, Kagan and others in the White House were strategizing about how to uphold President Clinton’s veto of a federal bill that would have banned partial-birth abortion. The ACOG told the White House that its task force on the subject had reported 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.” Here’s what happened next:

Upon receiving the task force’s draft statement, Kagan noted in another internal memorandum 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 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.

The ACOG’s behavior here is similar to that of climate scientists who corrupt the scientific method in order to advance political goals. Coffin notes that President Obama “promised in his inaugural address to ‘restore science to its rightful place’ “–by which he seems to have meant handmaiden to left-wing politicians.

It’s one thing to be pro-choice. It’s quite another to think it’s morally acceptable to suck the brains out of a baby while he is being delivered by his mother. And it’s another thing, perhaps even more vile, to be so rabidly in favor of this that you’re willing to purposely skew the scientific evidence to make sure it stays legal.

Consider that. The actual groups with medical knowledge on this issue – groups which aren’t remotely pro-life – didn’t find partial-birth abortion necessary. Given that, what possible excuse could there be for Kagan’s conduct?

This behavior is simply stunning.

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