Shannen Coffin’s National Review Online article yesterday described how Elena Kagan, while working in the Clinton White House, intervened to edit a supposedly scientific evaluation of the partial-birth abortion procedure that became the policy statement of the American College of Obstetricians and Gynecologists (ACOG) — and was later relied upon by a federal court to strike down the Bush administration’s federal partial-birth abortion ban.
As Coffin explained, in December 1996, Kagan received a draft statement by an ACOG “select panel,” which said that ACOG “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” Kagan drafted an amendment which said that the procedure “however, may be the best or most appropriate in a particular circumstance to save the life or preserve the health of a woman.”
Under questioning by Sen. Orrin Hatch this morning, Kagan admitted, “The document is certainly in my handwriting.”
In effect, Kagan wrote into the ACOG policy statement the “health” exception language from Doe v. Bolton, which — Kagan told Sen. Feinstein yesterday — required that any regulation must provide an exception for the “health” of women seeking abortion. Doe defined “health” as emotional well-being. Risk is simply “exposure to the chance of injury or loss.” Thus, “health risk” in abortion law means the potential for exposure to the chance of a loss of “well-being.”
Note how slippery Kagan’s amendment was: “may be the best or most appropriate in a particular circumstance to save the life or preserve the health of a woman.”
A federal judge in Nebraska relied on the ACOG policy statement to strike down the federal prohibition. Coffin related how the judge emphasized the “integrity of the process that led to” the statement, writing that, “neither ACOG nor the task force members conversed with other individuals or organizations . . . concerning the topics addressed.” Coffin, who defended the federal ban as a Justice Department attorney, recounted that, “Kagan’s role was never disclosed to the courts.”
Kagan seems to claim, and her supporters do claim, that Kagan was simply a scribe for changes coming from ACOG. But if Kagan met in June or July 1996 with ACOG representatives, and the ideas came from ACOG, why did the draft statement that Kagan got in December 1996 not have the language that Kagan then added?
Americans United for Life filed briefs in the Supreme Court in 2006 that recounted how the records in the three federal court challenges were devoid of any peer-reviewed medical evidence showing the safety and efficacy of the procedure or any increased risk to any woman from prohibiting the procedure. There was no substantial, reliable evidence that any maternal or fetal condition required the use of partial-birth abortion. Kagan altered the language, but ACOG never provided any peer-reviewed scientific data to support that language. The ACOG panel did not identify or examine any studies regarding the safety of partial-birth abortion and other abortion methods. Without consulting the panel, the ACOG executive board unilaterally added Kagan’s amendment.
The Supreme Court in 2007 upheld the federal prohibition. But the Court, based on abortion advocates’ claims of serious risks to women, held the door open to “as-applied,” or individualized, claims that a particular woman’s medical condition required a partial-birth abortion.
More than three years later, not one individualized claim by any woman claiming to need the partial-birth abortion procedure has been filed in state or federal court.
– Clarke Forsythe is senior counsel for Americans United for Life.