Bench Memos

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Kagan and ACOG, the (Continuing) Scandal of Politicized Science


Responding to the Elena Kagan’s partial-birth abortion scandal, Slate’s William Saletan emphasizes the amazing credulity of the courts when faced with obviously politicized “scientific” statements by organizations like ACOG.  He sums it up this way:

 Fourteen years ago, to protect President Clinton’s position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court. They understate the scandal. It isn’t Kagan we should worry about. It’s the whole judiciary.

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.

While I’m not sure that I agree that ACOG was the “real culprit,” it was certainly responsible for the wording of is own documents and is culpable for allowing a political operative to completely reframe its statement.  But ACOG (and organizations like it) only have power because judges give them power. We should be well past the time when many (if not most) scientific organizations are viewed by any savvy observer as unbiased communicators of scientific consensus.  They have become fabricators of consensus and advocates of political outcomes (see, for example, the Intergovernmental Panel on Climate Change and the East Anglia Climatic Research Unit).  

Trafficking on the goodwill created by many long years of less partisan existence, groups like ACOG are now expending their credibility for the fools’ gold of transient political outcomes.  Was it worth it for ACOG to win a temporary victory on partial-birth abortion when it is now tarred with the public knowledge that it allowed a political operative to rewrite its “scientific” statement?  Prestige gained over generations can be squandered in a single act of opportunism and deception.  

There is good science, and there is junk science.  The competing claims of scientists have to be evaluated on the merits, and courts can no longer rely on organizations like ACOG to “settle” scientific disputes.  If the very public Elena Kagan controversy can be a step in the direction of increased judicial scrutiny of politicized science, then at least something of value can be salvaged from what was a wholly absurd and disingenuous process.


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