More on Kagan and Partial-Birth Abortion

by Shannen W. Coffin

One of the defenses of Kagan’s revisions to the ACOG statement is that they really were just editorial, that they didn’t change the thrust of the statement. Let’s look at that argument.

The statement, prior to Kagan’s edits, reads in relevant part as follows: “However, a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.” Kagan did not delete that sentence (and I never suggested she did). It remained in ACOG’s final statement. What she changed was the following sentence, which had read: “Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based on the woman’s particular circumstances.” That innocuous statement is little more than a statement of policy; ACOG was simply saying that, notwithstanding their inability to find any medical circumstances in which the procedure would be the only appropriate procedure, the medical association’s board concluded that the doctor should still have medical discretion to use the procedure, and a legislature shouldn’t get involved. Fair enough.

What Kagan did was insert a statement of medical opinion into that sentence. Her full suggested edit was: “An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination.” ACOG’s final statement adopted the first half of that sentence in toto. The final sentence read: “An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision.”

There is little question that Kagan’s edit changed the substance of the ACOG statement, not merely its policy implications. Previously, the draft had read that there were no such medical circumstances in which it was the only method to save the health or life of a woman; Kagan inserted language to water down or hedge that medical opinion, asserting — notwithstanding what her notes had shown regarding the lack of evidence regarding such circumstances — that the procedure still “may be the best or most appropriate procedure in particular circumstances.” That is not a statement of policy; it is a statement of medical opinion.

Any attempt to downplay the significance of these revisions misses the mark. Remember that it was Kagan’s specific language the Supreme Court seized upon in striking down the Nebraska ban. As that opinion concluded, “Casey’s words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion — differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here.” The Court relied on ACOG’s policy statement (which ACOG expanded on in its amicus brief) to find a division of medical opinion:

For another thing, the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue. Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary. Rather, the uncertainty means a significant likelihood that those who believe that D&X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply turn out to have been unnecessary.

Again, in Gonzales v. Carhart (the later case upholding the federal ban), Justice Ginsburg’s dissent cited ACOG more than half a dozen times. The first citation, in the introduction to her opinion, decried the majority for disregarding ACOG’s opinion: “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).”

There is little question that ACOG was going to say whatever it took to get the ban struck down. Its amicus brief did its best to identify circumstances where the method was the best or most appropriate — although those allegations were never tested in the Stenberg litigation, which raises serious questions about the creation of “evidence” in amicus briefs. But there is also little question that the involvement of a White House policy staffer in the process tainted the reliability of ACOG’s supposedly nonpartisan medical opinion. Kagan’s edits were designed to assert a medical opinion that was completely at odds with the draft she had been given. She recognized that the draft statement would be a “disaster” – so, in her own view, her edits were necessary to avert that disaster.

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