Kagan’s Influential Medical Opinion

Elena Kagan’s explanation of her involvement in editing ACOG’s statement of policy on the abortion method was that she was merely helping ACOG put into words what they had been expressing all along in meetings with the White House. As I’ve noted before, there are reasons to doubt that explanation. A more likely explanation is that she was suggesting to ACOG a softer stance that would serve the political agenda of both the organization’s governing board and the White House, and ACOG’s governing board was more than willing to play the patsy. Ultimately, the statement was adopted by ACOG’s governing board, so they are clearly the greater villains here — especially given the role that the statement played in later litigation regarding the constitutionality of the abortion bans.

But let’s take Elena Kagan at her word — she was merely channeling ACOG better than it could channel itself. The obvious question that arises from her account of the story is this: Why on earth is the White House assisting a medical association in formulating its statement of medical opinion in support of a policy position?

The June 2006 memorandum from Kagan regarding White House meetings with ACOG representatives (the former president and the then-current legislative director) indicates that ACOG was reluctant to meet with the White House, but was worn down by White House insistence (see here). As she noted, “For many months, the folks at ACOG had been unwilling to speak with us about the medical issues surrounding the partial birth ban, but Marilyn Yeager convinced them to do so, and this meeting was the result. It was something of a revelation.” So the Clinton White House reached out to bring the medical groups within their inner circle in order to drive the policy debate.

I am not naïve about the ways of politics and policy. As a statement of policy by a medical association, the ACOG statement would have been generally harmless. Indeed, that is how we tried to describe it to the courts in litigating the federal partial-birth case. And if all that Elena Kagan had done had been to suggest modifications to a statement of policy in order to clarify the outside group’s policy position, that would have been harmless enough as well. But this was definitely not viewed as mere statement of policy when it was later introduced to the courts — and ACOG did not present it as a mere statement of policy. It was wielded as evidence of medical opinion — to demonstrate that there were medical circumstances where the abortion method would be warranted.

Though the specially established ACOG task force could identify no circumstances in which the procedure was the only one available to save the life and health of the mother, and although ACOG had told the White House that, in Kagan’s words, “there just aren’t many [circumstances] where use of the partial-birth abortion is the least risky, let alone the ‘necessary,’ approach,” Kagan suggested revisions to ACOG that softened that stance as a matter of medical opinion. She proposed to ACOG that they state that the partial-birth abortion method (which she called “intact D&X”) “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” As I have noted, that statement had implications not simply as a policy statement, but as a suggestion that the specially formed ACOG task force had identified such circumstances. ACOG provided no medical support for that statement — no studies, no particular circumstances — although it later backfilled in amicus briefs filed with the Court. Nevertheless the statement became medical gospel.

Therein lies the problem with Kagan’s involvement. The White House clearly meddled in the deliberations of a supposedly (but clearly not) nonpartisan medical association on a key issue of medical fact. Whether or not ACOG had ever expressed the views that Kagan put into words — and there are reasons to question that assertion — the White House crossed a line in pushing the medical debate. It politicized science — a charge that is thrown around frequently by Democrats, and practice that is used more frequently by them.

Does any of this disqualify Kagan for the Supreme Court? Well, that’s a question that the Senate will have to answer, and if early returns are any indication, she’ll be confirmed. But it would be interesting to know what her reaction was when she saw the statement that she had helped draft become part of the medical and legal foundation for striking down Nebraska’s ban. And as I’ve noted before, the most interesting question that hasn’t been asked of her is: Knowing what you know about the creation of ACOG’s statement, could you have joined in the Stenberg opinion, which relied so heavily upon it? Could you have taken ACOG seriously at all?

An interesting post-script that a few people on the blogosphere have noted: When Kagan got the final ACOG statement, which included her language, she was ecstatic. She wrote to her boss, Bruce Reed: “Bruce — Here’s the final ACOG statement on partial birth. It turned out a ton better than expected.” Apart from noting that she used the term “partial birth,” forbidden in Democratic circles, it’s not clear entirely what to make of that note. She obviously thought “mission accomplished,” and that she had turned around the ACOG draft that she had previously deemed a “disaster.”

But perhaps more interesting was that she then apparently sent a memo to the president, telling him that medical associations backed his course of action. In that memo (attached here in draft form), she relied heavily on the modified ACOG statement [PDF]:

Perhaps the most reliable opinion is from the American College of Obstetricians and Gynceologists (ACOG), which issued a statement in January addressing the procedure, which it calls intact dilatation and extraction (intact D&X). According to the statement , “A select panel convened by 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.” (Emphasis in original.) The statement then went on: “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.” In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint.

We now know that the “most reliable opinion” was aided significantly by Kagan herself, and even the “emphasis added” that she notes in her memo [PDF] to the president was her own, since she recommended that emphasis to ACOG in her markup [PDF]. But none of that stopped her from touting the ACOG statement without qualification as a basis to support his veto. And she didn’t present it as a mere statement of policy: “Given the state of medical evidence on this subject, your longstanding position seems the appropriate one.”

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