Legal Commentary

Saletan on Kagan, ACOG, and the Partial-Birth Abortion Ban

By Jonathan H. Adler

Slate?s William Saletan, author of Bearing Right, writes on ?Elena Kagan?s partial-birth abortion scandal,? concluding (as I did) that the events uncovered impugn the American College of Obstetricians and Gynecologists more than Kagan.  But he also thinks there is a broader lesson to be learned here.  He writes:

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.

As Saletan details, Kagan?s suggested revisions did more than ?clarify? the ACOG statement; they altered its emphasis, and the changes had their desired effect.  The revised statement was treated as an authoritative medical statement by in court.  Writes Saletan:

By reframing ACOG?s judgments, she altered their political effect as surely as if she had changed them.She also altered their legal effect. And this is the scandal?s real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.

He concludes:

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation?s highest judges. As one of them, she had better make sure they aren?t fooled again.

Full post as published by The Volokh Conspiracy on July 04, 2010 (boomark / email).