A Little Red Meat For The Base: Right Falsely Accuses Kagan On Abortion

Seeing their brilliant strategy of attacking Thurgood Marshall shockingly not find a resonant audience, the Right has trotted out a new line of attack. It seems that when Elena Kagan was in the Clinton White House, she provided some wording advice on how to state their view on a late term abortion procedure to the American College of Obstetricians and Gyncecologists (ACOG). This, it appears, is scandalous behavior. It will be interesting to see if the GOP Senators pick up this point, and whether any of the GOP's witnesses are asked if they submitted their statements for review by the GOP staff of the Judiciary Committee.

In any event, when you get to the actual allegation, it is nonexistent. Here's the description at NRO by a conservative DC lawyer who worked in the Bush Justice Department of Kagan's horrible sin:

Miss Kagan, then a deputy assistant to the president for domestic policy, already knew ACOG’s stance as a result of a July 1996 meeting at the White House, at which ACOG representatives told administration officials — according to a Kagan memorandum [PDF] — that “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.”

Upon receiving the task force’s draft statement, Kagan noted in another internal memorandum [PDF] that the draft ACOG formulation “would be a disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation.” Any expression of doubt by a leading medical body about the efficacy of the procedure would severely undermine the case against the ban.

So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document [PDF] captioned “Suggested Options” — which she apparently faxed to the legislative director at ACOG — Kagan proposed that ACOG include the following language: “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.) The judicial battles that followed led to two Supreme Court opinions, several trials, and countless felled trees. Now we learn that language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children was, in the end, nothing more than the political scrawling of a White House appointee.

Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.

(Emphasis supplied.) Surely an educated person who speaks the English language could not possibly believe this claptrap. And indeed, there is much that is dishonest about the piece. But let's address the main point - that the additional language Kagan suggested constituted "overriding a scientific finding." Um, what? Let's look at the original language:

[I]n the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health.”

(Emphasis supplied.) "Vast majority" suggests a "non-vast minority of cases [where] selection of the partial birth procedure is necessary to avert serious adverser consequences to a woman's health." Or, in other words, that "[a]n intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Now this statement may seem implicit to reasonably intelligent people. But as the Right Wing Fauxrage demonstrates, some reasonably intelligent people are not beyond pretending not to understand English.

Kagan knew from whence she wrote back in 1996. ACOG needed to add that sentence so that their intent was correctly understood. This, I submit, demonstrates Kagan's sound understanding of politics, policy, law and the English language.

Speaking for me only

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    Wouldn't "an educated person ... (5.00 / 1) (#1)
    by Peter G on Wed Jun 30, 2010 at 09:37:44 AM EST
    ... who speaks the English language" actually think that Kagan's formula understates the prior ACOG draft?  In other words, if "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," and if in some cases that "serious adverse consequence" can be death, then it is necessarily true, not just that "in some cases" an intact D&X "may be" the "best or most appropriate procedure ...to save the life or preserve the health of a woman," but that in such cases it will be the best and most appropriate procedure.

    And of course, when a lawyer suggests to a doctor that the doctor's proposed formulation of the doctor's medical opinion would be more clear (and/or persuasive) if reworded in some way, or if another sentence were added, the lawyer is not trying to "override" the scientific finding.  The final decision of whether to revise the statement of the doctor's opinion rests with the doctor.  Any decent lawyer (myself included, when I am in this situation) will always emphasize to the doctor that if the lawyer's suggestion is erroneous, or makes the statement of opinion inaccurate, then the revision should not be made.  Only if, in the end, the statement truly reflects the doctor's own professional opinion -- and the doctor is willing to stand behind it under oath and cross-examination if necessary -- should (or will, in my cases) the doctor adopt it and sign off on it.

    I'm not sure one even needs to have (none / 0) (#3)
    by Anne on Wed Jun 30, 2010 at 10:35:42 AM EST
    that much education to understand this, but we all also know that when one is attempting to further a particular agenda and fire up the troops, these are the little details that get twisted and shaped accordingly.

    Some people will believe anything if they think it helps their arguments.


    Agreed. (none / 0) (#4)
    by Yes2Truth on Wed Jun 30, 2010 at 01:42:53 PM EST

    If K won't vote to overturn Roe, that means she's
    a liberal, and we should support her as well as future O nominations.  I think he's maybe finally
    going to prove he's the progressive we all voted
    for. Anyone who supports Roe probably also supports
    progressive positions on other issues, and everything like that, uh huh.

    In what way... (none / 0) (#5)
    by Romberry on Wed Jun 30, 2010 at 01:49:25 PM EST
    ...are Republican attacks "red meat" for the base? Red meat for the base would be Kagan actually staking out some progressive/liberal positions. Republican attacks are just attacks. They mean squat to me.

    Kagan remains an unknown. If I were in the senate, barring some answers from this nominee that were honest and forthcoming on her views of the issues, I'd not vote to confirm. So far, Kagan has mostly said a bunch of nothing...outside of her agreement that the "war on a verb" is a war without end, and all the world's a battlefield, and even if you're nowhere near or actually active in any hostilities, the United States would be "within its rights" to target you and imprison you until the war without end...ends.

    I'm not saying that Kagan would be more conservative than retiring traditional conservative Justice Stevens. I'm saying that I don't know what Kagan would be...and that Republican attacks are not red meat for the base...and that without having some really firm idea of what Kagan believes and what kind of justice she would be, I would not vote to confirm and in fact hope that absent the aforementioned forthcoming and honest answer that she is not confirmed.

    Yeah...I know. Fat chance. This whole show is kabuki. She's in like Flynn.

    Red meat for the GOP base (none / 0) (#8)
    by Big Tent Democrat on Wed Jun 30, 2010 at 02:09:19 PM EST
    Oh. In my best Emily Litella voice... (none / 0) (#11)
    by Romberry on Wed Jun 30, 2010 at 07:37:11 PM EST
    They also are upset because she doesn't (none / 0) (#6)
    by Farmboy on Wed Jun 30, 2010 at 02:02:28 PM EST
    celebrate Christmas. I mean, really. Just because she's Jewish shouldn't matter...

    There should be a gong hanging in each chamber of Congress. When a senator or congresscritter spout something stupid, a citizen from his or her state could strike the gong and signal a 1 hour time-out penalty for wasting everyone's time. Either they'd learn, or they'd all be sitting silently. Both would be an improvement.

    Well (none / 0) (#9)
    by squeaky on Wed Jun 30, 2010 at 02:13:26 PM EST
    Imagine if she were a muslim...  

    This liberal (none / 0) (#7)
    by cawaltz on Wed Jun 30, 2010 at 02:04:41 PM EST
    could care less what Kagan's opinion of Roe is. Hades will freeze over before I vote for the guy who put Stupak into health care and basically made the conscience clause where some person who sees me for a 15 minute appointment has the same say over my health care as myself(who actually gets to bear the consequences of decisions made).

    I'm absolutely peeing  my pants laughing at the idea that anyone would think Obama is absolved because the person he  nominated pointed out that perhaps the person who actually bears the responsibility for bearing a fetus is a living being deserving of life and having the means to have her health and welfare looked upon to.

    ephemera (none / 0) (#10)
    by cpinva on Wed Jun 30, 2010 at 02:29:03 PM EST
    for the masses. not to be confused with pap, which is at least tangible.