Wednesday, July 07, 2010

Using supposedly neutral science in legal cases

William Saletan is no friend to conservative causes, but he takes up the story of Elena Kagan's interference in the American College of Obstetricians and Gynecologists' statement on partial birth abortion. While Saletan acknowledges that the final report kept in the original statement that decisions should be between a doctor and patient, he casts a very skeptical eye on Kagan's 2010 explanation of what she did. It's clear to everyone that she, a political appointee, got ACOG to insert a sentence that she'd written that was directly contradictory of the draft report and which then went on to influence judicial decisions that relied on her words.
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.
And that is the real problem ACOG's report, with Kagan's deceptive sentence inserted, went to form the basis of judges' decisions on partial birth abortion.
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....

Kagan's memos and testimony confirm that ACOG consulted the White House and altered its statement accordingly. As a result, the statement reframed ACOG's professional findings to support the policy views it shared with the White House.

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.
They'll be fooled when the spin from the scientists fits what they want to do in the first place. That's what we've learned from this whole episode. And we'd never have known about it if Kagan's nomination hadn't brought these memos to light.