Supreme Court nominee Elena Kagan’s interference with the drafting of the 1997 policy statement of the American College of Obstetricians and Gynecologists (ACOG) first surfaced during her confirmation hearings a couple weeks ago. In a nutshell, the story is this: in late 1996 Kagan was serving as a legal and policy advisor in the Clinton White House. Congress was attempting to pass a ban on partial-birth abortions, President Clinton had already vetoed one bill, and another bill was under consideration.

During this process, ACOG produced a draft medical policy statement on partial-birth abortion which stated that its “select 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.” Kagan received the draft of this policy directly from ACOG and informed her White House superiors that the policy draft was a “disaster.” She drafted an extra sentence that ACOG thereafter added verbatim to the final policy statement: “An intact D & X (the partial-birth abortion procedure), however, may be the best or most appropriate procedure to save the life or preserve the health of a woman.” Kagan reported to her boss that the ACOG statement “turned out a ton better than expected. I’ll let you know in person what happened.”

This one sentence, drafted not by the ACOG medical group but by Elena Kagan, a policy advisor in the Clinton White House, went on to have a major impact in the partial birth abortion controversy, and played a major role in several federal court decisions.

Americans United for Life (AUL), which first examined Kagan’s involvement with the Clinton administration in frustrating Congress’s attempt to ban the procedure, has issued a report that ties all of the various pieces of the story together. The pertinent factual issues are these:

“No empirical data existed at the time of the Kagan Amendment, at the time of the Supreme Court’s decision in Stenberg v. Carhart, or at the time of the Supreme Court’s decision in Gonzales v. Carhart in 2007, showing that D&X [ the partial birth abortion procedure] was safe, or safer than existing alternative methods of abortion.”

and this:

“Kagan’s Amendment seriously misled the federal courts, including the justices of the U.S. Supreme Court, about the relative safety of the partial-birth abortion procedure between 1997 and 2007.”

AUL draws the obvious conclusions:

“Elena Kagan’s willingness to amend and politicize an impartial medical report by a major medical organization to affect legal and judicial events at the highest level of the American judicial system, relating to a major piece of Congressional legislation, clearly demonstrates her disregard for the integrity of the legal and judicial process.”

and

“Because of the lack of reliable scientific data, the ACOG Policy Statement, as Kagan amended it, was relied on by federal courts to invalidate the laws of 30 states and an act of Congress. Kagan’s disregard seriously compromised the integrity of the U.S. federal judicial process for more than a decade.”

To me, the fact that the Kagan Amendment impacted (was even quoted in, actually) two Supreme Court decisions and numerous related lower court decisions between 1997 and 2007, clearly demonstrates the validity of AUL’s conclusions. Although this episode is also an indictment of the judiciary’s unquestioning reliance on so-called “scientific” expert testimony, it absolutely reflects an unabashed manipulation of science to accomplish a political objective, and it ought to disqualify Kagan from any court appointment, let alone a lifetime appointment to the Supreme Court.

AUL’s website: http://www.aul.org/

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