Wash. Times falsely suggests Kagan convinced ACOG to change their position on partial-birth abortion

Wash. Times: Kagan was “so ideologically committed to keeping partial-birth abortions legal that she didn't want the full medical truth released,” and “her nomination should be terminated by the Senate.” From the June 30 Washington Times editorial:

Documents from Ms. Kagan's service in Bill Clinton's administration show her saying it would be a “disaster” if word got out that the American College of Obstetricians and Gynecologists (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.” She was so ideologically committed to keeping partial-birth abortions legal that she didn't want the full medical truth released without accompanying language that diluted the impact of the facts.

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Ms. Kagan's career repeatedly has involved efforts to use the courts for political ends. Her work on partial-birth abortion is a perfect, and perfectly egregious, example. Her nomination should be terminated by the Senate.

In fact, ACOG's position on banning the procedure was consistent

June 1996: ACOG told Clinton White House officials that the procedure was rarely, if ever, necessary, but could in some circumstances be the best option. In a June 22, 1996 memo, Kagan detailed a task force meeting White House officials 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 was that there should be an exception to a partial birth abortion ban to allow for consideration of the health of the mother.

ACOG later issued a draft statement saying they “could identify no circumstances under which this procedure...would be the only option,” but that the decision should be “based upon the woman's particular circumstances.” Months after the June meeting, ACOG released a statement on legislation that would ban the so-called “partial-birth abortion,” which they refer to as “intact D & X.” The statement said in part:

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.

Kagan expressed concern about the statement's wording and suggested edits to make ACOG's position more clear. 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,” which suggested a way to make clear that ACOG's position was 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.

ACOG's final statement made clear that ACOG was unaware of a situation in which the procedure was the “only option,” but that it could be the best option and this is not a decision that should be made by politicians. ACOG's 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.

Kagan: “I recall generally...talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them.” During her confirmation hearing, Sen. Orrin Hatch (R-UT) asked Kagan about her memo in which she said it would be a “disaster” if ACOG issued their draft statement. Kagan explained that “the disaster would be, if the statement did not accurately reflect all of what ACOG thought. Both, I mean, that there were two parts of what ACOG thought. And, I recall generally, not with any great specificity, but recall generally talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them--that it was both, not the only procedure, but also that it was in some circumstances the medically best procedure. And in their final statement that sentence, that it was not the only procedure, of course, remained because that is what they thought. But, we did have some discussions about clarifying the second aspect of what they also thought, which was that it was in some circumstances the medically most appropriate procedure.” [starts at about 203:00]

Kagan: “There was no way I could have or would have intervened with ACOG to get it to change its medical views on the question.” After Hatch claimed that it “bother[ed]” him that Kagan “intervened in that particular area in that way,” Kagan said: “Senator Hatch, 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 on the question. The only question that we were talking about was whether this statement that they were going to issue accurately reflected the views that they had expressed to the President, to the President's staff, to Congress, and to the American public.”

Washington Times ignores that ACOG opposed legislation that would ban “partial-birth abortion.” At no point in its editorial did the Washington Times note that ACOG consistently opposed legislation that would ban “partial-birth abortions,” without at minimal, a health exception. ACOG maintained that “The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.”

Wash. Times falsely suggests Kagan opposed any type of “partial-birth abortion” ban

Wash. Times: Kagan an “apologist” for “legalized partial-birth abortion” and was “ideologically committed to keeping partial birth abortions legal.” The Washington Times obscured Kagan's position on legislation that would ban partial birth abortions by repeatedly falsely suggesting that she completely opposed any ban. From the editorial:

Elena Kagan has failed the ethical standards necessary for service on the Supreme Court. She also has shown herself to be an apologist not just for legalized abortion, but for legalized partial-birth abortion - a gruesome form of infanticide opposed by up to 75 percent of the American public. In yesterday's Senate Judiciary Committee hearings, Ms. Kagan utterly failed in her attempts to explain away her unethical actions on behalf of an immoral policy. After these revelations, no senator claiming to be a moderate should be able to support Ms. Kagan.

Documents from Ms. Kagan's service in Bill Clinton's administration show her saying it would be a “disaster” if word got out that the American College of Obstetricians and Gynecologists (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.” She was so ideologically committed to keeping partial-birth abortions legal that she didn't want the full medical truth released without accompanying language that diluted the impact of the facts. In another memo, Ms. Kagan laments that it was “a problem” that Mr. Clinton might want to restrict such abortions to a greater degree than she did.

In fact, Kagan advised Clinton to endorse ban with narrow health exception that would apply only with physician-certified risk of “grievous injury” to pregnant woman's health. In a May 1997 memo, Kagan and her boss, Bruce Reed, advised Clinton to endorse a proposal that would ban abortions after the fetus has become viable with a narrowly drawn health exception that would apply only if a physician “certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health.” From the memo:

As you know, the Senate is taking up the Partial Birth Abortion Act (HR 1122) this afternoon. We expect Senator Daschle and Senator Feinstein to offer substitute amendments during the course of the debate. We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals.

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Most critically, both amendments contain a health exception, though of different kinds. The Feinstein legislation would exempt an abortion if, “in the medical judgment of the attending physician, the abortion is necessary to ... avert serious adverse health consequences to the woman.” This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician “certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health.” “Grievous injury” is then defined as “a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition.”

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Recommendation

We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto. You have spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined, health exception -- as you said in a letter to the Cardinals, not a health exception that “could be stretched to cover most anything,” but a health exception that “takes effect only where a woman faces real, serious adverse health consequences.”