Wednesday, June 30, 2010

How Elena Kagan manipulated science for ideological reasons

The Senate hearings on Supreme Court nominations have become a kabuki theater. We all know that Elena Kagan will be confirmed. The only question is how many Republican votes she'll get. I suspect that, even if the Republicans controlled the Senate, she would still get confirmed. The GOP doesn't have the stomach to filibuster a presidential judicial nominee. Or they have ideals that a president's nominees should be confirmed as long as they were moderately qualified.

So we get the spectacle of Sonia Sotomayor and Elena Kagan pretending to be more open-minded and moderate than we all know they are. Sotomayor said in her hearings that she wouldn't defer to foreign law for decisions and then signed on to an opinion that cited foreign law considering whether a juvenile could get a life sentence instead of writing a separate opinion citing other reasoning beyond foreign law.

Liberals contend that Roberts and Alito violated their testimony for respecting precedent by their Citizens United ruling. Conservatives will disagree, but the point is that there is a script that all nominees know they must follow in how to answer questions.

There is nothing that will happen in the Senate hearings that will change any senator's vote or the final determination. The only thing that could block a nominee is what he or she had done prior to the nomination. That is why this story by Shannen Coffin on what Kagan did to manipulate the language used by a committee of obstetricians on the possible need for a partial birth abortion is so distressing and deserves to be a major subject of discussion. Coffin went through Kagan's time in the Clinton White House to look at her actions when the GOP Congress passed a law banning partial birth abortions and found that she crucially edited the language of the obstetricians' report and that her language was then cited by a federal judge in originally striking down the federal ban on partial birth abortion that Bush had signed.
There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Years later, when President Bush signed a federal partial-birth-abortion ban (something President Clinton had vetoed), the ACOG official policy statement was front and center in the attack on the legislation. U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.

Like the Supreme Court majority in the prior dispute over the Nebraska ban, Judge Kopf asserted that the ACOG policy statement was entitled to judicial deference because it was the result of an inscrutable collaborative process among expert medical professionals. “Before and during the task force meeting,” he concluded, “neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed” in the ACOG statement.

In other words, what medical science has pronounced, let no court dare question. The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG’s policy statement at the suggestion of then–Clinton White House policy adviser Elena Kagan.
So what was Kagan's role?
The task force’s initial draft statement did not include the statement that the controversial abortion procedure “might be” the best method “in a particular circumstance.” Instead, it said that the select ACOG 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.”


Notwithstanding its allegedly apolitical nature, ACOG shared this draft statement with the Clinton White House. 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. (Links in the original)
Think of this: there was a doctors' opinion that said that partial birth abortion was not necessary and she, with no medical background at all, drafted a statement that said the exact opposite and that statement became part of the final report. Of course, blame lies with the executive board of the American College of Obstetricians and Gynecologists for adopting her switcheroo, but her role was apparently key since they used her language.

This story is parallel to how the Obama administration manipulated the report on deep-water drilling in order to institute their moratorium. And this isn't even getting to the whole climategate scandal. Yet liberals like to thump their chests and talk about how they're the ones who respect science unlike those neanderthal Republicans. Ha!

UPDATE: Go here for Shannen Coffin's explanation of why we should have doubts about Kagan's response when asked about this issue today in the hearing.

1 comment:

Kevin T. Keith said...

Leaving aside the silly suggestion that Kagan "manipulate[d] the language used by a committee of obstetricians" - how exactly did she force them to endorse something they did not believe?; why did they then officially reiterate that exact language three more times thereafter, including in 2003, years after Clinton had left the White House? - your basic comprehension of the text itself is incompetent.

ACOG's original draft statement did not say "partial birth abortion was not necessary", and Kagan's suggested addition did not say "the exact opposite". In fact, both statements are completely compatible not contradictory, and both were retained in the final ACOG policy statement; they also do not say what you think they say.

ACOG's statement noted that their review panel "could identify no circumstances under which intact D&X would be the only option to save the life or preserve the health of the woman"; it was clarified to note that intact D&X "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman". (Emphases added.) The former does not state that ID&X is "not necessary" - only that it is not the only option. The latter does not state "the exact opposite"; it merely notes that, among the various options available, ID&X is sometimes the best one. This clarifies why ACOG was opposed to banning the procedure: it removes what is sometimes the best option, even if there are other options available. The two statements do not conflict: the fact that something is not a sole option does not imply that it is a bad option, and that is entirely compatible with the fact that it may even be the best option.

Kagan's language helped clarify both why ACOG opposed the dangerous, misogynist, and politically motivated ban on using the best available option for women's care when it was needed, and also emphasized that that option was not merely justifiable but sometimes preferable. It is certainly not a reversale of ACOG's original position, and in fact ACOG included both statements in its final policy and continued to assert them repeatedly over the years. Your understanding of either of these statements, and their logical relationship, let alone their bearing on the political issues of women's health or Supreme Court confirmations, is simply untenable.