The Corner

Questioning Elena Kagan

I don’t think we should overreact to my piece yesterday on Elena Kagan’s role in revising the American College of Obstetricians and Gynecologists (ACOG) statement to fit the Clinton White House’s political agenda on partial-birth abortion.

I don’t think you can accuse Kagan of tampering with “evidence,” for the simple reason that there were no judicial proceedings ongoing at the time. Leroy Carhart’s challenge to Nebraska’s partial-birth ban was not filed until sometime in mid-1997. Kagan’s role in revising the ACOG statement on partial-birth abortion occurred in December 1996, and the ACOG statement was released (with her revisions adopted by ACOG’s board) in January 1997. I think it is fair to say that Kagan’s proposed rewrite of the relevant passage of the ACOG statement was designed at the time to bolster the case for President Clinton’s veto of the bill. It may have been foreseeable at the time that the statement would later be used in judicial proceedings, but I don’t think we should attribute that sort of manipulative foresight to Kagan. As Jonathan properly notes in his discussion of the issue on Volokh, if there were any misstatements to the courts (and we would have to spend some time poring over a lot of deposition and trial transcripts to make that determination), they were made by ACOG or the abortion proponents who used its statement as evidence of a body of medical opinion against the ban.


That does not mean, however, that there are not legitimate questions for Solicitor General Kagan in her confirmation hearings. Senators can, and should, delve into her role as a White House policy staffer in proposing language for a hitherto prestigious medical association to include in an official statement regarding the medical efficacy and relative safety of an abortion procedure. First, we need to confirm that what appears to be the case is the actually the case. Senators should ask Kagan about what appear to be her handwritten notes, about how many contacts she or other White House staffers had with ACOG, and about whether the White House had similar contacts with the AMA and other medical groups. Kagan played an active role in the White House until her nomination to the D.C. Circuit in 1999. Did she play any role in formulating the U.S.’s position as amicus curiae in Stenberg v. Carhart, the Supreme Court case dealing with the Nebraska ban? Did she tell anyone at the Justice Department about her role in revising the ACOG statement, which ended up playing such a critical role in the Supreme Court’s decision? Did she not feel any obligation to come forward once she saw what a central role the ACOG statement played in the Supreme Court’s decision? While it is certainly not improper for the White House to have contact with outside groups that share their political objectives, isn’t there a proper line between science and politics that was crossed in this instance?


The abortion groups (and perhaps Kagan) will, of course, develop a narrative to explain what happened here. First, they’ll argue that, to the extent Kagan offered any language, it was merely to clarify what she had heard in her discussions with ACOG representatives, and it was ACOG that ultimately adopted the language. Of course it is correct that ACOG adopted anything that she offered. But the policy statement was sold to the courts as the work of a nonpartisan (and isolated) task force. Judge Kopf in Nebraska noted that the Kagan language was added by the ACOG board after the task force had forwarded the draft (without the Kagan language) to the board for approval, and Kopf ultimately concluded that the Kagan language was consistent with the deliberations of the board. But would the judges have approached the statement differently if they had known it had been the product of negotiation with the White House? (The answer is likely “no” for several members of the Supreme Court, who would have struck down the partial-birth abortion ban no matter what the evidence showed.) Doesn’t that taint the whole ACOG process as a merely political exercise?


Second, they’ll argue that the ACOG statement was not the only evidence offered by ACOG. Indeed, ACOG filed amicus briefs in opposition to the ban in both Stenberg and Gonzales (the later decision upholding the federal ban). The majority in Stenberg also cited the ACOG amicus brief in support of its conclusion that the procedure was medically justified. But there is little question that the January 1997 ACOG statement played a central role. And ACOG’s subsequent amicus brief would have had to have been viewed in the proper light — as a brief filed by politicized group.


That leads to the main questions that Kagan should be asked in this hearing: If you were a justice sitting in the Stenberg litigation, and you knew what you knew about how the ACOG statement was drafted, would you give it any weight whatsoever? And if so, why? Does this suggest that Courts should be wary about placing evidentiary value on statements made in amicus briefs or documents that aren’t subject to the rigorous testing of a judicial proceeding?

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