American College of Obstetricians and Gynecologists Statement on Partial-Birth Abortion Included 'Suggested' Text Found in Kagan's White House Files

June 29, 2010 - 11:11 AM
After reviewing a draft statement from the American College of Obstetricians and Gynecologists in December 1996, then-Associate White House Counsel Elena Kagan wrote an internal White House memo declaring that the statement would be a "disaster" for the Clinton administration if it were publicly released.

Supreme Court nominee Elena Kagan smiles as she arrives on Capitol Hill in Washington, Monday, June 28,2010, for her confirmation hearing before the Senate Judiciary Committee. (AP Photo/Alex Brandon)

(CNSNews.com) - On Dec. 5, 1996, the government relations office of the American College of Obstetricians and Gynecologists (ACOG) privately provided the Clinton White House with the unreleased draft of a policy statement ACOG was preparing to put out on intact dilatation and extraction (D&X) abortion -- the procedure used in a partial-birth abortion.

Having reviewed the draft of the ACOG statement, then-Associate White House Counsel Elena Kagan wrote an internal White House memo declaring that the statement would be a “disaster” for the Clinton administration if it were publicly released. This was because the statement as drafted contradicted the argument President Clinton had been making to defend his opposition to a ban on partial-birth abortion.

Kagan wrote the memo  on Dec. 14, 1996, which was a Saturday. Just the day before, on Friday, Dec. 13, 1996, President Clinton had given a press conference in which he stressed that he opposed the ban on partial-birth abortion unless an exception for the health of the mother was added to it because, he insisted, “a few hundred women every year” who seek abortions would not be able to "preserve the ability to have further children unless the enormity -- the enormous size of the baby’s head is reduced before being extracted from their bodies.” That is, unless they had a partial-birth abortion.

The draft ACOG statement that Kagan feared would be a "disaster" for the administration said: “[A] select panel convened by ACOG could identify no circumstances under which this procedure [intact D&X abortion], as defined above, would be the only option to save the life or preserve the health of the woman.”

In her Saturday memo, addressed to White House Counsel Jack Quinn and White House Deputy Counsel Kathy Wallman, Kagan cut right to the point.

"Some news on the partial-birth abortion front (especially apropos in light of the President’s remarks on Friday),” Kagan started her memo. “1. 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. (The AMA last week decided to continue to take no position on the partial-birth issue.)”

Another one of Kagan’s White House files recently released by the Clinton Library also included a copy of ACOG’s "confidential" draft statement on intact dilatation and extraction abortion that Kagan had predicted would be a "disaster." This file included handwritten notes with “suggested options” for changing the wording of the ACOG statement. The handwritten notes also included the phone and fax number of ACOG’s associate director of government relations, who had faxed a copy of the draft statement to the White House on Dec. 5, 1996. There is no indication on the sheets that carry these handwritten notes who actually wrote the "suggested options."

President Barack Obama introduces Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House in Washington, Monday May 10, 2010. (AP Photo/Pablo Martinez Monsivais)

One of the “suggested options” said, “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 a doctor should be allowed to make this determination.” 

On Jan. 12, ACOG publicly released its statement on intact dilatation and extraction abortion. It included a passage that tracked -- verbatim -- the “suggested option” from the handwritten notes found in the Kagan file released by the Clinton Library.

The final ACOG statement included the words: “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…” These words had not been in the "confidential" ACOG draft reviewed by Kagan, but they were in the handwritten "suggested options" found in Kagan's White House files on the same sheet of paper that bore the fax and phone number of ACOG's associate director of government relations.

Three years after ACOG released its statement on partial-birth abortion -- that included verbatim the words that had been the handwritten notes in Kagan's White House files -- the Supreme Court issued its opinion in Stenberg v. Carhart, which declared Nebraska's ban on partial-birth abortion unconstitutional. Justice Stephen Breyer wrote the Court’s decision in the case, quoting verbatim the passage from the ACOG statement on intact dilatation and extraction abortion that had originally appeared in the handwritten notes in Elena Kagan’s files released by the Clinton Presidential Library.
 
Breyer wrote: “The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’”
 
“The picture that’s emerging,” says National Right to Life Legislative Director Douglas Johnson, reflecting on Kagan's Clinton White House files, is that “it appears that Kagan was perhaps the key strategist in blocking enactment of the partial-birth abortion ban act.” Johnson also said he believes that Kagan had “her hands on this from the beginning to the end.”

After the House of Representatives originally passed a federal ban on partial-birth abortion in November 1995, the White House released a statement saying “the administration would not support” the bill because it failed “to provide for consideration of the need to preserve the life and health of the mother.” 

The White House repeated this position a month later after the Senate passed its version of the legislation. Press Secretary Mike McCurry at that time responded to a question about the legislation saying the president was “disappointed” that the bill did not include language “that would make it clear that the life and health of the mother must be protected.”

William Jefferson

Johnson points to a memo sent to the president on Jan. 22, 1996, which laid out the rationale for a politically viable health-exception argument for opposing the ban on partial-birth abortion. This memo is officially from White House Counsel Jack Quinn, but a handwritten note on the memo suggests it was actually drafted by Kagan, argues Johnson. The note states, “Elena, This is a great job--Thank you!! POTUS [the President of the United States] liked it, and it helped a lot. Thanks, Jack” (emphasis is original).

The memo stated that there were “between 400 and 600 partial-birth abortions” per year. It continues, “One doctor who performs these abortions has said that up to 80% of his procedures are ‘elective,’ but this may mean only that they [sic] are non-emergency surgery; the procedures still may be necessary to protect the life or health of the woman.”

The memo goes on to explain, “Because of the procedure’s disturbing qualities, I do not recommend that you object to the Act on any grounds suggestive of the position that all regulation of the procedure is improper. I recommend that you instead object to the Act on the narrow ground that this particular regulation fails to protect sufficiently the health of the woman and indicate your willingness to sign a bill that includes such protection.”

A month later, on Feb. 28, 1996, Clinton sent a letter to several leaders in Congress saying there are “rare and tragic situations that can occur in a woman’s pregnancy in which, in a doctor's medical judgment, the use of this procedure may be necessary to save a woman's life or to preserve her health.” He went on to say that he wouldn’t support legislation banning partial-birth abortion unless it provides a provision allowing the procedure if the doctor decided it was "necessary to preserve the life of the woman or avert serious adverse consequences to her health."

On March 27, 1996, the House passed the Senate’s version of the legislation, and the final bill was finally sent to President Clinton’s desk.

President Bill Clinton vetoed the bill on April 10, 1996. He invited five women, all of whom had undergone late-term abortions claiming health reasons, to join him for a press conference afterward to tell their story. The president then pleaded for legislation that would make an exception for “serious, adverse health consequences to the mother,” such as losing “the possibility of future child-bearing,” or if they “could clearly be substantially injured forever.” These situations, he emphasized, affect “a few hundred Americans every year.”

However, two months later, on June 22, 1996, Kagan sent a memo to Jack Quinn describing a meeting of representatives from the White House with the former president and then-chief lobbyist of ACOG. Kagan said that the meeting had been “something of a revelation.” From this meeting she said she learned 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.”

Kagan goes on in the memo to specify that “there just aren’t many [circumstances] where use of the partial-birth abortion is the least risky, let alone ‘necessary,’ approach.” She also says that “of the five women who came to the White House [for the president's veto of the partial-birth abortion ban], only two can truly say (though they all apparently believe) that the partial-birth abortion procedure was the least risky of their alternatives…. [T]he other three--all of whom were carrying malformed fetuses in the third trimester – could have given birth, either through induction or through carrying the fetus to term, without serious risk to their health.”

Nevertheless, Kagan goes on to say in the June 22 memo, “none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used.”

However, on Dec. 5, 1996, then-Associate Director of Government Relations at ACOG, Kathy Bryant, sent a fax to Todd Stern at the White House that included the draft ACOG statement that said that an ACOG panel “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.”

On Friday, Dec.13, 1996, eight days after Stern received the ACOG draft statement saying the ACOG panel had found "no circumstances" in which an intact dilitation and extraction abortion was the only method of abortion that would preserve the life or health of the mother, President Clinton held the press conference in which he said that he could not support a ban on partial-birth abortion unless it included a health exception because “a few hundred women every year” whose children have “terrible deformities” and who want abortions “cannot preserve the ability to have further children unless the enormity--the enormous size of the baby’s head is reduced before being extracted from their bodies.”

Kagan noted in her memo written the next day -- Saturday -- that the subject matter was “especially apropos in light of the President's remarks on Friday.” She pointed to the draft ACOG statement secured by Stern and said it would be be a “disaster” if it were released or leaked. 
 
The Kagan files released from the Clinton Presidential Library to the public, in accordance with requests from the Senate Judiciary Committee, include the handwritten notes with “suggested options” for changing the draft ACOG statement. These "suggested options" include the words -- “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”-- that ended up in the statement that was actually released by ACOG. Two other variations suggested in the handwritten notes also included the language “best or most appropriate procedure.”

The U.S. Supreme Court, Washington, D.C.

Other handwritten edits on the draft itself (as found in Kagan's files released by the Clinton Library) were also reflected in the final, publicly released version of the ACOG statement. For instance, the word “however” is cut out, as the edits recommend. Also, a double underline under the word “only” suggest emphasizing the word in the line that reads, “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.” The word “only” is bolded in the final version ACOG released on January 12, 1997.

Notably, the “confidential” disclaimer was not crossed out on the copy of the draft ACOG statement that included the handwritten edits, as it had been on the version Stern received.

ACOG went on to release its final statement with these additions and edits on Jan. 12, 1997, one month after the White House had received the draft copy of the statement.

In April 1997, after the two houses of Congress again passed legislation banning partial-birth abortion, Kagan wrote a memo to the president--in response to his request for information about whether partial-birth abortion is ever necessary to save the life or preserve the health of the mother--in which she quoted the language added to the final ACOG statement.

The April 10, 1997, memo from Kagan and Quinn to President Bill Clinton quotes the passage from the ACOG statement that includes the words from the "suggested options" originally found in handwritten form in Kagan's own White House files. The memo to Clinton states: “According to the statement, ‘A select panel convened by ACOG could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman.’ (Emphasis in original.) The statement then went on: ‘An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or reserve 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.' In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint.’”

The “best or most appropriate” language found in Kagan’s files actually ended up being quoted by the nation’s highest court a few years later. When Nebraska’s law banning partial-birth abortion came up before the Supreme Court in 2000, the Court declared Nebraska’s law unconstitutional, in part because it did not give an exception to preserve the health of the mother. 

The opinion of the Court, written by Justice Stephen Breyer, actually quotes the exact language that was added to the final ACOG statement. The opinion reads, “The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman.’”
 
Partial-birth abortion remained legal until a ban was successfully signed into law by President George W. Bush in 2003. In 2007, Douglas Johnson of National Right to Life points out, “The ban was upheld by the Supreme Court,” despite Kagan’s suggestions in the Clinton Library documents that a federal ban would not withstand constitutional scrutiny.

Kagan served as Associate White House Counsel from 1995 to 1996 and as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997 to 1999.

National Right to Life’s Johnson said he believes that because of Kagan’s instrumental role in formulating the president’s argument and rhetoric on partial-birth abortion, she “deserves the blame” for delaying enactment of the partial-birth abortion ban. And, because of that, Johnson said, her “legacy” is that “many thousands of unborn babies were mostly born alive and stabbed through the head.”

The American College of Obstetricians and Gynecologists has not responded to numerous calls and e-mails from CNSNews.com seeking comment for this story. However, CNSNews.com was able to speak with Dr. Fredric Frigoletto, who was president of ACOG from 1996 to 1997. 

Dr. Frigoletto said that he “didn’t know” why the ACOG draft statement was sent to the White House in December 1996. 

“I personally never met with anyone at the White House,” Frigoletto told CNSNews.com. 

“I don’t think I ever received a communication from the White House regarding that statement that I recall. I think that statement evolved over a moderately long length of time within the college and I’m sure that there were staff people at the college who may have been -- had some contact with people at the White House. I’m not sure, but it wouldn’t surprise me,” he said.

When asked why the “best or most appropriate” language was included in the final statement, Frigoletto told CNSNews.com her risks that were considerably less if she had what was called a dilatation and extraction: “I think that at that point in time, as I recall, the alternative--there were two alternatives--one would be essentially at that stage of pregnancy if a termination had to be completed, if you didn’t do it vaginally, then you had to do a hysterotomy, which is the equivalent of a Caesarian Section--and in a very sick woman, a pregnant woman, whose pregnancy needed to be terminated to save her life--to impose on her the equivalent of a Caesarian Section, was imposing on her risks that were considerably less if she had what was called a dilatation and extraction.”
 
However, Frigoletto told American Medical News on March 3, 1997 that "There are no data to say that one of the procedures is safer than the other."
 
When CNSNews.com asked about this quote, Frigoletto told CNSNews.com in an e-mail: “With respect to the statement that there are no data to say that one of the procedures is safer than the other, it applies to ‘the more than one of the vaginal approaches.’ However, there is no doubt in the minds of most clinicians that in certain circumstances hysterotomy is less safe for the mother than one of these vaginal approaches.” (Editor’s Note: hysterotomy is a form of Caesarian section used for abortion).
 
Moreover, the 1997 American Medical News story reported: “When asked why the statement said the procedure ‘may be the best’ in some cases, Dr. Frigoletto answered, ‘or it may not be.’”
 
Neither Kathy Bryant nor Todd Stern would respond to questions for the story. CNSNews.com also attempted to reach Elena Kagan and Jack Quinn for comment, but neither responded.