In recent days, right-wing media figures and outlets have attempted to make hay over Clinton-era documents which they falsely claim demonstrate Elena Kagan's "willingness to manipulate medical science" for political purposes. In fact, Kagan did no such thing. The documents in question center around the drawn out debate concerning late-'90s legislation which would have banned, under most circumstances, so-called "partial birth" abortions. The Clinton administration's position was that the ban would be acceptable, provided there was a narrowly-drawn exception to preserve the health of the pregnant woman. The Clinton administration also endorsed a ban on late-term abortions that also had a narrowly-drawn health exception.
Kagan served as a legal advisor to Clinton at the time and was involved in providing policy recommendations to the administration on the issue.
The right has seized on several documents and memos related to the Clinton administration's talks with the American College of Obstetricians and Gynecologists (ACOG) about an abortion procedure referred to as intact D&X (which ACOG determined was the likely target of the "partial birth" abortion proposals), and its necessity. In particular, they are highlighting a draft ACOG statement on pending legislation that would ban the procedure, in which the ACOG stated:
Terminating a pregnancy is indicated in some circumstances to save the life or preserve the health of the mother. Intact D&X is one of the methods available in some of these situations. However, 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 decision 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 intervention of legislative bodies into medical decision making is inappropriate, ill advised, and potentially dangerous.
In a December 14, 1996, memo, Kagan wrote that it would be a "disaster" if the ACOG issued this draft statement as its final statement. Kagan's files also include handwritten notes titled "suggested options," and those notes include language that mirrors ACOG's publicly released final statement on the "partial birth" abortion bill.
The right-wing blogs are screaming that this is evidence that Kagan interfered with "medical science" to advance the Clinton administration's politics. But Kagan did no such thing. ACOG's final statement is perfectly consistent with the draft statement and with ACOG's medical panel's assessment that it "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." Indeed, the panel's assessment was still included in ACOG's final statement on the issue.
And none of the right-wing media attacks have even plausibly suggested a way in which ACOG's draft statement and its final statement conflict.
Let's break this down:
In handwritten notes, Kagan wrote down some "suggested options" regarding the ACOG statement, as you can see here:
The language in these notes clearly suggests a way to flesh out the implicit suggestion contained in ACOG's draft statement -- that while intact D&X procedure isn't the only procedure that could be used to terminate late-term pregnancies, in some cases, it could be the best option and this decision should be left up to the doctor and patient, not politicians.
This is hardly a "distortion" of ACOG's position; in fact, it is completely consistent with past meetings ACOG officials had with White House officials on the issue. For instance, in a June 22, 1996 memo, Kagan detailed a task force meeting she had with an ACOG representative. She discussed "two important points" that "emerged form the meeting," the first of which being that "there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated. 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...is equally safe." The memo added, that "we went through every circumstance imaginable...and there just aren't many where use of the partial-birth abortion is least risky, let alone the 'necessary,' approach." Kagan concluded that the consensus from the meeting was that the administration had no need "to change the standard the President has articulated or the rhetoric he has used," which, again, was that there should be an exception to a partial birth abortion ban to allow for consideration of the health of the mother.
Got that? ACOG told Kagan that the need for an intact D&X procedure was extremely rare, but could be the best available option in certain cases. Their initial January 1997 draft statement on proposals to ban the procedure didn't make this position as clear as they could have. Kagan recognized this was a problem, and her handwritten notes include language to make ACOG's position more clear. ACOG apparently agreed with the modification, and its final statement said:
Terminating a pregnancy is performed in some circumstances to save the life or preserve the health of the mother. Intact D&X is one of the methods available in some of these situations. 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 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 intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.
Once again, the right finds itself grasping at straws in its ongoing attempts to derail Kagan's nomination. Indeed, even one of the originators of this smear has cautioned other conservatives that they are "overreact[ing]" to the smear.