Fourteen years ago, to protect President Clinton's position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court. They understate the scandal. It isn't Kagan we should worry about. It's the whole judiciary.
Kagan, who was then an associate White House counsel, was doing her job: advancing the president's interests. The real culprit was ACOG, which adopted Kagan's spin without acknowledgment. But the larger problem is the credence subsequently given to ACOG's statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.
The Kagan story appeared Tuesday in National Review and CNSNews.com. You can read the underlying papers at the Media Research Center. There are three crucial documents. The first is a memo from Kagan on June 22, 1996, describing a meeting with ACOG's chief lobbyist and its former president. The main takeaway from the meeting, Kagan wrote, was that "there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated," i.e., abortions in which the partial-birth technique was necessary to protect a woman's life or health. She explained:
In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman's health; another option—whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term—is equally safe.
The second document is a draft ACOG statement on "intact D&X" (aka partial-birth) abortions, faxed by ACOG to the White House on Dec. 5, 1996. The statement said that
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. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women.
The third document is a set of undated notes in Kagan's handwriting, offering "suggested options" for editing the ACOG statement. They included this sentence: "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." This sentence was added verbatim to the final ACOG statement released on Jan. 12, 1997, which read in part:
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. 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.
The basic story is pretty clear: Kagan, with ACOG's consent, edited the statement to say that intact D&X "may be the best or most appropriate procedure" in some cases. Conservatives have pounced on this, claiming that Kagan "fudged the results of [ACOG's] study," "made up 'scientific facts,' " and "participated in a gigantic scientific deception." These charges are exaggerated. The sentence Kagan added was hypothetical. It didn't assert, alter, or conceal any data. Nor did it "override a scientific finding," as National Review alleges, or "trump" ACOG's conclusions, as Sen. Orrin Hatch, R-Utah, contends. Even Power Line, a respected conservative blog, acknowledges that ACOG's draft and Kagan's edit "are not technically inconsistent." Kagan didn't override ACOG's scientific judgments. She reframed them.
But Kagan's defense is bogus, too. On Wednesday, at her confirmation hearing, Hatch pressed Kagan about this episode. She replied that she had just been "clarifying the second aspect of what [ACOG] thought." Progressive blogs picked up this spin, claiming that she merely "clarified" ACOG's findings and made its position "more clear" so that its "intent was correctly understood." Come on. Kagan didn't just "clarify" ACOG's position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.
At the hearing, Kagan said ACOG had told her that intact D&X "was in some circumstances the medically best procedure." But that doesn't quite match her 1996 memo about her meeting with ACOG. In the memo, she wrote that
we went through every circumstance imaginable—post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc.—and there just aren't many where use of the partial-birth abortion is the least risky, let alone the "necessary," approach. No one should worry about being able to drive a truck through the President's proposed exception; the real issue is whether anything at all can get through it.
The language in this memo—"imaginable," "let alone," the quotes around "necessary"—depicts a conversation in which nobody could think of a real case where intact D&X was, as Kagan's revision would later put it, "the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." Indeed, the participants doubted whether "anything at all" could meet Clinton's standard—namely, a case in which intact D&X would be "necessary to preserve the life of the woman or avert serious adverse consequences to her health." So Kagan's statement at her hearing—that ACOG had said intact D&X "was in some circumstances the medically best procedure"—considerably stretches the truth as she recorded it. It implies, contrary to her contemporaneous notes, that ACOG had affirmed a specific need for the procedure.
Kagan's critics see her political meddling as a violation of science. The revised ACOG statement "was a political document, intended to bolster the case for partial-birth abortion, under the false flag of scientific objectivity," says Power Line. National Review agrees: "Language purporting to be the judgment of an independent body of medical experts" was "nothing more than the political scrawling of a White House appointee." These complaints are overboard. Science and politics aren't mutually exclusive. The ACOG statement was largely scientific, and even Kagan's insertion was more than political scrawling: It reframed but obeyed the constraints of ACOG's objective beliefs.
But if conservatives are being naive about the relationship between science and politics, Kagan is being cynical about it. "There was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians, to get it to change its medical views," she told senators on Wednesday. With this clever phrasing, she obscured the truth: By reframing ACOG's judgments, she altered their political effect as surely as if she had changed them.
She also altered their legal effect. And this is the scandal's real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.
National Review, CNSNews, and Power Line make a damning case that courts mistook the ACOG statement for pure fact. In 2000, when the U.S. Supreme Court struck down Nebraska's ban on partial-birth abortions, it cited ACOG: "The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that 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.'" That sentence, we now know, was written by Kagan.
Four years later, when U.S. district judge Richard Kopf ruled against the federal partial-birth ban, he wrote:
I have summarized only the statements of the two leading national medical associations—that is, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG)—regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry. I did not summarize the policy views of these or other associations.
Kopf explained why he trusted the ACOG statement:
In forming the task force's proposed ACOG Statement on Intact Dilation and Extraction, the members relied on their own education and expertise, obstetrics and gynecology textbooks, CDC information, published information on the safety of D&E and the D&X subset of D&E, and information about the safety of available alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview or receive testimony from doctors, and did not draft and circulate individual position papers or statements for review and comment by other task force members. … Before and during the task force meeting, neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed in the ACOG Statement on Intact Dilation and Extraction.
Kopf, like the rest of us, was apparently unaware that after the ACOG task force formulated its proposed statement, the statement was politically vetted and edited. Kagan's memos and testimony confirm that ACOG consulted the White House and altered its statement accordingly. As a result, the statement reframed ACOG's professional findings to support the policy views it shared with the White House.
All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation's highest judges. As one of them, she had better make sure they aren't fooled again.