For more than 10 years, the debate over the question of partial-birth abortion hinged on a public statement by the American College of Obstetricians and Gynecologists (ACOG): Partial-birth abortion, ACOG stated, “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.”
It was always believed that this had been a statement drafted by medical experts, so politicians and courts of law showed it deference. Little did anyone know that the experts at ACOG had not originally made such bold claims. Rather, this language had been drafted and then inserted into their far less assertive statement by a Clinton policy advisor, Elena Kagan, who is now President Obama’s nominee for the Supreme Court. These facts were first reported yesterday by NRO’s Shannen W.Coffin.
In 1996, ACOG’s experts had proposed a draft statement that was shared in advance with the White House stating simply that the group “could identify no circumstances under which [the partial-birth] procedure…would be the only option to save the life or preserve the health of the woman.” ACOG’s panel went on to say that they opposed the ban anyway, because “the potential exists that legislation prohibiting specific medical practices, such as [partial-birth abortion], may outlaw techniques that are critical to the lives and health of American women.”
When that language reached Kagan, she reacted immediately: “This, of course, would be a disaster,” she wrote in a Dec. 14, 1996 memo. She had likely seen this coming six months earlier, when she penned a memo on ACOG’s position after the group’s representatives met with the Clinton White House’s “abortion team” “[T]here just aren’t many [cases],” she wrote, “where the use of the partial-birth abortion is the least risky, let alone the ‘necessary,’ approach.”
In order to avoid having ACOG release a milquetoast statement defending partial-birth abortion, Kagan proposed an addition that contradicted the sense of ACOG’s original opinion: That partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”Weeks later, ACOG adopted Kagan’s now-famous language, which for years became an out for politicians and judges to allow the continued practice of partial-birth abortion despite legislation to the contrary.
When questioned today about this incident during her Senate Judicial Committee confirmation hearing by Sen. Orrin Hatch, R-Utah, she offered this explanation about her “disaster” memo: “The ‘disaster’ would be if the statement did not accurately reflect all of what ACOG thought.” This patently nonsensical answer throws into question her fairness and even her honesty, both qualities essential to a Supreme Court Justice of any ideological bent. The committee should ask Kagan for further clarification.
