Kagan Engaged in Falsification of Evidence to Defeat Partial Birth Abortion Ban

The late Daniel Patrick Moynihan, Democrat Senator from New York, was a pro-abort, but he voted to ban partial birth abortion, which he correctly described as “barely disguised infanticide”.  Many pro-aborts draw the line at this gruesome killing of an infant.  Not so Supreme Court nominee Elena Kagan apparently.  Shannen W. Coffin has written a fascinating article at National Review Online.  Coffin was the deputy attorney general in the Bush administration who defended the partial birth abortion ban law.  In this article he details how Kagan falsified evidence in an attempt to defeat a partial birth abortion ban in Congress during the Clinton administration:

When President Obama promised in his inaugural address to “restore science to its rightful place,” he never explained what that rightful place would be. Documents recently released in connection with the Supreme Court nomination of Solicitor General Elena Kagan suggest an answer: wherever it can best be used to skew political debate and judicial outcomes.

The documents involved date from the Clinton White House. They show Miss Kagan’s willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion. As such, they reflect poorly on both the author and the president who nominated her to the Supreme Court.

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Years later, when President Bush signed a federal partial-birth-abortion ban (something President Clinton had vetoed), the ACOG official policy statement was front and center in the attack on the legislation. U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.

Like the Supreme Court majority in the prior dispute over the Nebraska ban, Judge Kopf asserted that the ACOG policy statement was entitled to judicial deference because it was the result of an inscrutable collaborative process among expert medical professionals. “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.

In other words, what medical science has pronounced, let no court dare question. The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG’s policy statement at the suggestion of then–Clinton White House policy adviser Elena Kagan.

The task force’s initial draft statement did not include the statement that the controversial abortion procedure “might be” the best method “in a particular circumstance.” Instead, it said that the select ACOG 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.”

Notwithstanding its allegedly apolitical nature, ACOG shared this draft statement with the Clinton White House. 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 — 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.

Go here to read the rest.  Go here to read the Kagan memorandum of June 22, 1996,  here to read her memorandum of December 14, 1996, and here to read Kagan’s note where she spoonfed the language to the ACOG which she wished to substitute for their prior accurate statement.  Needless to say, I think Kagan’s support for partial birth abortion alone should be sufficient in any sane society to disqualify her from the Supreme Court.  However, even supporters of the “barely disguised infanticide” known as partial birth abortion, should be repelled at the idea of an officer of the court altering evidence presented to Congress by the ACOG.  Kagan lacks the ethics to be an attorney, let alone a justice of the Supreme Court.



12 Responses to Kagan Engaged in Falsification of Evidence to Defeat Partial Birth Abortion Ban

  1. Phillip says:

    So the most pro-abortion President has appointed the most pro-abortion Supreme Court nominee. How will Esau Catholics defend this?

  2. T. Shaw says:

    I’m shocked! Shocked!!!

    Ms. Kagan lied in a legalistical, federal (paid for by we the people) document dishonestly written to keep infanticide licit.

    No! Wait. It wasn’t a lie. She was protecting a woman’s right to choose!

    Ms. Sotomayor also lied when she gave sworn testimony in her confirmation hearings on her support for the Second Amendment and first chance voted the opposite.

    You will not get into Heaven if you vote democrat.

  3. Jay Anderson says:

    The Democrats believed the mild-mannered, highly qualified, and well-respected Samuel Alito to be so “extreme” that his nomination to the Supreme Court merited a filibuster.

    I believe the filibuster to be borderline unconstitutional when exercised in the case of judicial appointments, and believe it should have been “nuked” when the Republicans had a chance. But thanks to the Senator who just received a rare GOP primary endorsement from National Review, however, the filibuster is still available to defeat nominations to the judiciary.

    Working within the system we have, therefore, I now support a filibuster of Elena Kagan’s nomination to the Supreme Court. Her views on abortion are the very definition of extreme, but that’s hardly surprising coming from a Democrat-appointed nominee. But her falsifying a scientific report that was used as evidence in court to defeat legislative bans on one of the more brutal abortion procedures ever dreamed up shows her to be not only extreme, but unethical and untrustworthy and makes unfit to be an officer of the court, much less a life-tenured member of the highest Court in the land deciding the very issues on which she has manipulated evidence to affect the outcome.

  4. John Henry says:

    To me this seems to speak more to the duplicity of ACOG than Kagan. ACOG wanted to oppose the ban on partial-birth abortion; they consulted attorneys in the White House to assist them, and Kagan was working there at the time.

    Also, it seems to me that these statements are not in conflict:

    “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”

    “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.”

    “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

    Something can be the “best or most appropriate option” (awful terms, those) even if it wasn’t the only option; and something can be best in a ‘particular circumstance’ that isn’t necessary in the vast majority of circumstances. In other words, this isn’t, technically, a lie. There is clear and scandalous dishonesty by ACOG insofar as they presented their findings as the product of a ‘scientific’ panel rather than lawyerly advocacy, but I am not sure how much Kagan is to blame for ACOG’s deceit. Now, partial-birth abortion is an awful thing – and it reflects poorly on Kagan and Clinton that they supported it – but if her actions described above were on another issue, for instance, one I agreed with, then I don’t think I’d be that troubled by them. That said, ACOG’s conduct here is a disgrace.

  5. Phillip says:

    Perhaps to the extent that she authored the lie that ACOG used. So the fact that ACOG is more duplicitous that Kagan doesn’t mean she isn’t. Perhaps we can call them co-conspirators in the continued effort to expand the ability to murder innocents.

  6. Phillip says:

    And you wouldn’t be troubled by a lawyer blatantly lying about medical facts to influence court cases?

  7. John Henry says:


    The point is that the statements aren’t inconsistent. Kagan’s formulation: ‘may be most appropriate…in a particular circumstance’ is extremely broad wording; something that isn’t necessary in the “vast majority of circumstances” or that isn’t the “only option” still “may be most appropriate…in a particular circumstance.” The lie comes in on the packaging – this was being presented as a medical conclusion by a ‘non-partisan’ group of doctors, when it was really straight political advocacy (from the White House, no less), complete with wiggle room and squishy language that suggests more than it means. In other words, it’s the type of language lawyers use when they are arguing a case. I guess I agree that Kagan acted unethically insofar as she knew that this study would be presented as the work of ‘non-partisan’ scientists rather than Clinton-administration lawyers. ACOG’s actions here were shockingly fraudulent.

  8. Phillip says:

    I guess by that logic each are equally at fault. Both were seeking to provide the best justification possible through legal wording for a procedure that is the brutal murder of a child during birth.

  9. T. Shaw says:


    “Wiggle room” I got a visual of a baby’s legs flailing while a ‘doc’ plunged the blade through his/her skull.

    Do you have a conscience?

    Does all that sophistry ease your conscience for voting for mass murder?

  10. John Henry says:

    T. Shaw,


    Not sure I understand the question. If you mean voting for Bush meant that I was responsible for the Iraq War, I disagree. I never thought the war was justified. If you mean that not voting for Obama means that I signed off on his judicial nominations, I don’t know what to tell you. Even if I had voted for Obama, that vote wouldn’t necessarily connote support for Kagan, much less for her actions as an employee of the Clinton Administration.

  11. Phillip says:

    But at some point one had to know that this would be Obama’s type of appointment to the Court. At some point Catholics who voted for Obama would have to know that voting for him would (even if not directly supported) result in the most pro-abortion Supreme Court picks.

  12. T. Shaw says:

    Phillip makes my point.

    It seems I ate a ton of lead paint chips when I was a kid.

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