Jonah, I agree with Ramesh that Will Saletan’s analysis is generally spot on, with one exception. Saletan contends that Kagan did nothing more than change the “emphasis” of the ACOG statement. But she did much more than that. The prior draft of the statement had said that the ACOG select panel had found no circumstances where the partial-birth-abortion method was the only method to save the life or health of the mother. (Actually, in this minor respect, Kagan did change the emphasis, since she recommended that ACOG emphasize “only,” which it did.) From that prior formulation, it is possible to conclude that there might be some unidentified circumstances where it may be the best or safest method (the language that Kagan suggested), but that conclusion does not necessarily follow. It might be that the reason that ACOG could identify no circumstances where it was the only method was that there were no circumstances where it was the best or safest method. So by supplying the language that she did, Kagan did much more than change the emphasis. She filled in a gap and changed the content. So I agree with Ramesh that he let Kagan off the hook a bit. But he certainly didn’t let her off the hook entirely. He rightly condemned her action as interfering with the opinion of an outside medical group, even if he came up short of concluding that she changed the substance of that opinion.
Saletan is absolutely correct that much of the blame here lies with ACOG, its pro-abortion allies that were parties to the partial-birth cases, and the courts. ACOG and its allies in the abortion-rights movement allowed a partisan policy statement to be passed off as scientific/medical evidence, and the courts (at least until the Supreme Court’s Gonzales decision) bought it hook, line, and sinker. I give credit to the late (great) Judge Richard Conway Casey for treating the ACOG statement with appropriate skepticism in the New York trial of the partial-birth case, even as he invalidated the ban. But other judges, such as Richard Kopf in Nebraska, treated the statement as gospel. I would be curious to know what their reaction to the news of Kagan’s participation is.
In any event, there is plenty of blame to go around here, and Kagan is certainly responsible for her conduct. Saletan should be given credit for seeing the significance of the politicization of science in this instance.