By Susan Brinkmann, OCDS
Staff Journalist
Newly released records show that a statement supposedly written by the American College of Obstetricians and Gynecologists (ACOG) that was used as the basis for striking down Nebraska’s partial birth abortion ban in 2000, was not drafted by the medical community, but by then-Clinton advisor Elena Kagan.
Writing for National Review Online, attorney Shannen W. Coffin says documents from the Clinton White House “show Miss Kagan’s willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion.”
The ACOG statement, cited by the U.S. Supreme Court in striking down the Nebraska ban, which was supposedly written by a “select panel” of physicians, claimed 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 U.S. Supreme Court relied on this statement as a key example of medical opinion supporting the abortion method. The same statement was also relied upon during the debate over President Bush’s Partial Birth Abortion Ban of 2003.
“The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors,” Coffin writes. “Rather, it was inserted into ACOG’s policy statement at the suggestion of then–Clinton White House policy adviser Elena Kagan.”
Apparently, ACOG’s original draft, which was shared with the White House, 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.”
After receiving this statement, Kagan noted in an internal memorandum that ACOG’s position “would be a disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation.” She believed that any expression of doubt by a leading medical body about the efficacy of the procedure would severely undermine the case against the ban.
Coffin goes on to explain that Kagan solved the problem by drafting language that hedged ACOG’s position. On a document captioned “Suggested Options” which she faxed to the legislative director at ACOG, she suggested including the following language in their statement: “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,” Coffin writes, adding that 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.”
He concludes: “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.”
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