Kagan, ACOG and the Partial-Birth Abortion Ban

Was “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” actually “nothing more than the political scrawling” of then Clinton White House staffer Elena Kagan?  That’s the charge made by former deputy Assistant Attorney General Shannen Coffin in this NRO essay.  Specifically, Coffin charges that recently released documents show that Kagan suggested the insertion of language into a statement on “partial-birth abortion” issued by the American College of Obstetricians and Gynecologists (ACOG) to help justify the Clinton Administration’s opposition to a federal ban.  This language was relied upon by the Supreme Court in striking down Nebraska’s PBA ban in Stenberg v. Carhart and highlighted by those seeking to challenge the federal PBA ban once it was adopted.

According to Coffin, Kagan worked to alter the ACOG statement’s language so that it would provide stronger cover for opposing a federal PBA ban.

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.s:

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.”

Powerline’s John Hinderaker thinks this is a “smoking gun” and Kagan “has a great deal of explaining to do.”  Glenn Reynolds thinks this is “at least” a scandal for ACOG, if not Kagan herself. If the allegations are true, it’s a clear example of the politicization of science by a Democratic administration (and further evidence that there are no clean hands on science politicization).

I expect we’ll hear more about this at tomorrow’s hearings, and I will be interested to see if there’s more to the story. If the allegations are true, I am sure we’ll hear that this sort of thing happens all the time in the White House, but does it really?  Are statements by purportedly neutral and apolitical professional organizations re-written by White House staff for political advantage?   Real “scandal” or not, this will fire up Kagan’s opponents and the GOP base, particularly social conservatives.

ADDENDUM: Assuming the allegations are true and do not omit key details, is this really a scandal?   I think it is, but not necessarily for Kagan.  Kagan was a White House staffer, so we would expect her to encourage outside groups to adopt positions that were amenable to Administration policy.  That’s not a scandal.  Encouraging a reputed professional organization to alter its factual claim in an official statement (e.g. whether the relevant procedure was ever the “most appropriate procedure available”) is a closer call, but probably not scandalous when done by a policy staffer for political purposes.  So this could be embarrassing for Kagan, and make abortion a larger issue in her confirmation, but it’s not the sort of thing that will stop her from being confirmed.

ACOG, on the other hand, comes out looking much worse.  If it actually let a White House rewrite an official statement of the organization on the necessity of a given medical procedure, its credibility will take a hit.  If ACOG categorically opposed any and all legislative impositions, that’s fine.  If it issued a specific statement based upon a White House staffer’s judgment of what was politically expedient, as opposed to what was true about the necessity or advisability of a given procedure, then it perpetrated a fraud and let itself be used for political purposes.

As a final note, there could also be interesting ethical issues if attorneys involved in any of the PBA suits were aware of the provenance of the relevant language in the ACOG statement.  This statement was presented to multiple courts as a definitive statement of a professional medical organization about whether a given medical procedure was ever necessary or at least the best available option for certain women seeking abortions.  If Coffin’s allegations are correct, however, it was a piece of political advocacy, not a statement of medical authority, and should not have been presented to courts as such.

MORNING UPDATE: A commenter below points to the full ACOG statement, suggesting that the changes to its wording were less consequential than Coffin’s account suggests.  I am not sure this fully clears ACOG, but it certainly lessens the gravity of the charge.

ADDITIONAL UPDATE: Shannen Coffin responds at The Corner, and suggests some questions Senators may wish to ask Kagan at her hearing.

YET ANOTHER UPDATE: More from Shannen Coffin, and a summary of Senator Hatch’s questioning of Kagan on this issue. (And a post questioning Coffin post here.)