Did Kagan Manipulate Language To Protect Partial-Birth Abortions?

Joe Schoffstall | June 30, 2010
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On Elena Kagan’s second day of confirmation hearings, she stated the court’s rulings mandate that in any law regulating abortion, “the woman’s life and the woman’s health have to be protected.” However, according to recent allegations surfacing, this may be far from the case. It's being reported Kagan “willingly manipulated medical science to fit in the Democratic party’s political agenda on the hot-button issue of abortion”, according to Shannen Coffin, a former deputy attorney general during the Bush Administration. ( h/t PowerLine) In 2000, when the United State Supreme Court struck down Nebraska’s ban on partial birth abortion, the language purportedly came from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG). They declared the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life of preserve the health of a woman.” Sound familiar with Kagan’s statements above? Here’s the ironic part: the ACOG report, when it was initially drafted said nothing of the kind. In fact, it said exactly the opposite. At that point in time, the panel "could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman." Elena Kagan at the time the ACOG report was released was a deputy assistant for President Clinton on domestic policy. The following is a memo Kagan wrote to her superiors in the White House:

Todd Stern just discovered that the American College of Obstetricians and Gynecologists (ACOG) is thinking about issuing a statement (attached) that includes the following sentence: "[A] select panel convened by ACOG 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." This, of course, would be disaster -- not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.
This was language on abortion that was not music to Kagan’s ears, so she interjected herself into the situation. Coffin writes in his article on National Review Online:
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.)
This is an image of the “suggested options” note from Kagan: (click to enlarge) As Power Line shows, this does appear to be Kagan’s handwriting. To see a sample of it click here. They go on to say:
Unless there is some other interpretation of these documents that does not occur to me, it appears that Elena Kagan participated in a gigantic scientific deception. On behalf of the Clinton White House, she deliberately subverted what was supposed to be an objective scientific process. The ACOG report was certainly seen in that light by the federal courts. Federal Judge Richard Kopf was deeply impressed by the scientific integrity of the report; he wrote: "Before and during the task force meeting," he concluded, "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. This statement was obviously false. The federal courts were victimized by a gross deception and a perversion of both the scientific process and the judicial process, carried out, the evidence appears to show, by Elena Kagan.
Judges are not supposed to make new laws, they're supposed to interpret laws. Even though Kagan was not a judge at the time, as she has very little legal experience, her actions don't look very promising. Unless someone has a justification for these documents and accusations, Elena Kagan has no right to be sitting on the U.S. Supreme Court if she manipulated data to suit her own agenda. UPDATE: Coffin responds with a new post this morning: Questioning Elena Kagan.