Elena Kagan's partial-birth abortion scandal.

Science, technology, and life.
July 3 2010 2:12 PM

When Kagan Played Doctor

Elena Kagan's partial-birth abortion scandal.

Elena Kagan. Click image to expand.

Fourteen years ago, to protect President Clinton's position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court. They understate the scandal. It isn't Kagan we should worry about. It's the whole judiciary.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right. Follow him on Twitter.

Kagan, who was then an associate White House counsel, was doing her job: advancing the president's interests. The real culprit was ACOG, which adopted Kagan's spin without acknowledgment. But the larger problem is the credence subsequently given to ACOG's statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.

The Kagan story appeared Tuesday in National Review and CNSNews.com. You can read the underlying papers at the Media Research Center. There are three crucial documents. The first is a memo from Kagan on June 22, 1996, describing a meeting with ACOG's chief lobbyist and its former president. The main takeaway from the meeting, Kagan wrote, was that "there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated," i.e., abortions in which the partial-birth technique was necessary to protect a woman's life or health. She explained:

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; another option—whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term—is equally safe.

The second document is a draft ACOG statement on "intact D&X" (aka partial-birth) abortions, faxed by ACOG to the White House on Dec. 5, 1996. The statement said that

a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women.

The third document is a set of undated notes in Kagan's handwriting, offering "suggested options" for editing the ACOG statement. They included this sentence: "An intact D+X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination." This sentence was added verbatim to the final ACOG statement released on Jan. 12, 1997, which read in part:

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A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision.

The basic story is pretty clear: Kagan, with ACOG's consent, edited the statement to say that intact D&X "may be the best or most appropriate procedure" in some cases. Conservatives have pounced on this, claiming that Kagan "fudged the results of [ACOG's] study," "made up 'scientific facts,'  " and "participated in a gigantic scientific deception." These charges are exaggerated. The sentence Kagan added was hypothetical. It didn't assert, alter, or conceal any data. Nor did it "override a scientific finding," as National Review alleges, or "trump" ACOG's conclusions, as Sen. Orrin Hatch, R-Utah, contends. Even Power Line, a respected conservative blog, acknowledges that ACOG's draft and Kagan's edit "are not technically inconsistent." Kagan didn't override ACOG's scientific judgments. She reframed them.

But Kagan's defense is bogus, too. On Wednesday, at her confirmation hearing, Hatch pressed Kagan about this episode. She replied that she had just been "clarifying the second aspect of what [ACOG] thought." Progressive blogs picked up this spin, claiming that she merely "clarified" ACOG's findings and made its position "more clear" so that its "intent was correctly understood." Come on. Kagan didn't just "clarify" ACOG's position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.

At the hearing, Kagan said ACOG had told her that intact D&X "was in some circumstances the medically best procedure." But that doesn't quite match her 1996 memo about her meeting with ACOG. In the memo, she wrote that

we went through every circumstance imaginable—post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc.—and there just aren't many where use of the partial-birth abortion is the least risky, let alone the "necessary," approach. No one should worry about being able to drive a truck through the President's proposed exception; the real issue is whether anything at all can get through it.