Legal Commentary

A Little Red Meat For The Base: Right Falsely Accuses Kagan On Abortion

By Big Tent Democrat

Seeing their brilliant strategy of attacking Thurgood Marshall shockingly not find a resonant audience, the Right has trotted out a new line of attack. It seems that when Elena Kagan was in the Clinton White House, she provided some wording advice on how to state their view on a late term abortion procedure to the American College of Obstetricians and Gyncecologists (ACOG). This, it appears, is scandalous behavior. It will be interesting to see if the GOP Senators pick up this point, and whether any of the GOP's witnesses are asked if they submitted their statements for review by the GOP staff of the Judiciary Committee.

In any event, when you get to the actual allegation, it is nonexistent. Here's the description at NRO by a conservative DC lawyer who worked in the Bush Justice Department of Kagan's horrible sin:

Miss Kagan, then a deputy assistant to the president for domestic policy, already knew ACOG’s stance as a result of a July 1996 meeting at the White House, at which ACOG representatives told administration officials — according to a Kagan memorandum [PDF] — 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.”

Upon receiving the task force’s draft statement, Kagan noted in another internal memorandum [PDF] 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 [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.) The judicial battles that followed led to two Supreme Court opinions, several trials, and countless felled trees. Now we learn that language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children was, in the end, nothing more than the political scrawling of a White House appointee.

Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.

(Emphasis supplied.) Surely an educated person who speaks the English language could not possibly believe this claptrap. And indeed, there is much that is dishonest about the piece. But let's address the main point - that the additional language Kagan suggested constituted "overriding a scientific finding." Um, what? Let's look at the original language:

“[I]n the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health.”

(Emphasis supplied.) "Vast majority" suggests a "non-vast minority of cases [where] selection of the partial birth procedure is necessary to avert serious adverser consequences to a woman's health." Or, in other words, that "[a]n 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.”

Now this statement may seem implicit to reasonably intelligent people. But as the Right Wing Fauxrage demonstrates, some reasonably intelligent people are not beyond pretending not to understand English.

Kagan knew from whence she wrote back in 1996. ACOG needed to add that sentence so that their intent was correctly understood. This, I submit, demonstrates Kagan's sound understanding of politics, policy, law and the English language.

Speaking for me only

Full post as published by TalkLeft on June 30, 2010 (boomark / email).