Former Surgeon General Koop Calls Kagan’s Alteration of ACOG’s Partial Birth Abortion Statement ‘Unethical’ and ‘Disgraceful’

July 23, 2010 - 1:17 PM
Former Surgeon General C. Everett Koop is urging senators to oppose Elena Kagan's Supreme Court nomination in light of her role in the alteration of a 1996 statement about partial-birth abortion from the American College of Obstetricians and Gynecologists.
Elena Kagan

Supreme Court nominee Elena Kagan testifies before the Senate Judiciary Committee on Tuesday, June 29, 2010. (AP Photo/Susan Walsh)

(CNSNews.com) In an open letter delivered last week, former Surgeon General C. Everett Koop is urging senators to vote against Elena Kagan’s nomination to the Supreme Court, in light of her role in the alteration of a medical statement about partial-birth abortion from the American College of Obstetricians and Gynecologists (ACOG).

“I was deeply disturbed to learn the Elena Kagan, the nominee for Supreme Court scheduled for a Senate committee vote next week, manipulated the medical policy statement on partial-birth abortion of a major medical organization, the American College of Obstetricians and Gynecologists (ACOG) in January 1997,” Koop wrote in his letter.

As CNSNews.com has reported, in 1996, when she was associate White House counsel in the Clinton White House, Kagan obtained a preliminary draft of ACOG’s “Statement on Intact Dilatation and Extraction.” (Intact Dilatation and Extraction, or “Intact D&X,” is a form of partial-birth abortion.) 

She wrote in a December 14, 1996, memo that “it would be disaster” if the statement were released or leaked because it stated that “[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.”

As Kagan admitted recently in her testimony in front of the Senate Judiciary Committee, that language she “suggested” -- that was eventually added to ACOG’s final statement -- was written in her handwriting and found in her Clinton Library files. The added language stated: “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.” 

This added language that partial-birth abortion “may be the best or most appropriate procedure” was later specifically quoted in the Supreme Court case Stenberg v. Carhart Opinion of the Court that struck down Nebraska’s ban on partial-birth abortion.

Americans United for Life (AUL) recently released a report that calls for an investigation of the matter. 

“The reason we pulled our report together was so people can see for themselves the difference between her testimony and what the record showed, " AUL President Charmaine Yoest told CNSNews.com.

"And the fact that the two don’t match up is why we called for an investigation to ask the question, that, if she says that she was just transcribing what she knew to be ACOG’s position – the timeline of her meetings with them and the production of their statements doesn’t match up with that description of her role.”

According to documents from her files in the Clinton Library, Kagan learned from a June 22, 1996 meeting between ACOG and representatives from the White House the “revelation” 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.”

Yoest added: “I think the record is very clear that she will be an agenda-driven Justice and that she has already prejudged this issue. She has a very clear track record as an advocate working pretty aggressively to advance an abortion agenda. That’s very very troubling for someone who has been nominated for a Judicial appointment.” 

“I think it is surprising,” said Yoest, “that someone has been nominated for a judicial appointment who has such a clear track record and, frankly, this woman through the hearings has been demonstrated to be almost single-handedly responsible for extending the duration of partial-birth abortion legality in this country for over a decade."

Koop, meanwhile, said he found the entire situation very troubling. 

“The problem for me, as a physician,” the former surgeon general wrote, “is that she was willing to replace a medical statement with a political statement that was not supported by any existing medical data. During the partial-birth abortion debate in the 1990s, medical evidence was of paramount importance.”

Koop said there "was, and is no reliable medical data" that partial-birth abortion is safe or safer than alternative medical procedures. 

“In my many decades of service as a medical doctor,” Koop added, “I have never known of a case where partial-birth abortion was necessary in place of a more humane and ethical alternative.”

Elena Kagan’s actions, therefore, should disqualify her for the Supreme Court, according to Koop

“Ms. Kagan's political language, a direct result of the amendment she made to ACOG's Policy Statement, made its way into American jurisprudence and misled federal courts for the next decade,” Koop said.

Her misrepresentation of science and of her role in the matter, Koop wrote, “is unethical, and it is disgraceful, especially for one who would be tasked with being a measured and fair-minded judge.”

Koop’s letter also directs readers to a report on Kagan’s actions published last week by American’s United for Life (AUL). This report points out that a court case in New York, National Abortion Federation v. Ashcroft, reveals that the ACOG statement itself was not voted on by the “select panel” that investigated the intact D&X procedure.

The case cites testimony from the chairwoman of the ethics committee at ACOG, Joanna Cain, in a footnote.

The footnote stated: “ACOG has an Executive Board with approximately twenty elected members who oversee ACOG’s activities and policies. (Tr. 179:11-180:25 (Cain).) In October 1996, the panel convened and submitted to the Executive Board a proposed policy statement which concluded that the panel could “identify no circumstances under which [D&X] would be the only option to save the life or preserve the life of the woman,” but that “notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor in consultation with the patient” based upon the woman’s particular circumstances. (Tr.155:3-19,157:22-158:4 (Cain.)

"The ACOG Executive Board edited the proposed policy statement to add, “[a]n 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.” (Tr. 155:20-156:7 (Cain).)"

The AUL report also supports Koop’s claim that no medical evidence existed to validate the claim that partial-birth abortion “may be the best or most appropriate procedure.” The report cited a Nebraska case in which an expert, Dr. Leroy Sprang, “’couldn’t come up with a single example where it would be . .  the best, most appropriate alternative to save the health of the mother.’ Carhart v. Ashcroft, 331 F. Supp.2d 805 (D. Neb. 2004) TR 1098-1102.”

“The record testimony,” states the report “in three federal cases (in Nebraska, New York, and San Francisco) challenging the Partial-Birth Abortion Ban Act of 2003 demonstrated that there was no reliable evidence that any maternal or fetal medical condition required the use of D&X, or that D&X was safer than existing procedures.”

The authors of the AUL report draw the conclusion that “Kagan’s disregard seriously compromised the integrity of the U.S. federal judicial process for more than a decade.”

Cathy Ruse, a lawyer and senior fellow for legal studies at the Family Research Council, who was embroiled in the issue and pored through the transcripts of the New York trial, told CNSNews.com that the Kagan amendment “was front and center” during the trial.

As the pro-life spokeswoman for the United States Conference of Catholic Bishops, Ruse said she and her team read through “every transcript in the partial-birth trials.”

“We posted them online, we analyzed them, we sent around excerpts. We were the only group doing that and I was heading that, so I know very well – I read every word of the New York trial, and her (Kagan's) statement was prominent in the trial,” Ruse said. 

Saying she worked on partial-birth abortion ban legislation as a staff counsel for the Constitution sub-committee in the House at the time the ACOG statement was released, Ruse maintains that Kagan’s addition did not just change the emphasis, as others have argued, but indeed “substantively changed [ACOG’s] position on this procedure.”

By not defining a circumstance where partial-birth abortion could possibly be the “best or most appropriate procedure,” Ruse said that Kagan “opened up the possibility by her language that undefined, hypothetical situation where partial-birth abortion would be the best method. And the judges latched on to that, and it was decisive in their ruling striking down the ban of this procedure. The ‘best’ language was central to those rulings.”

Kagan had other options, Ruse said. One can see through the “paper-trail” revealed in the Clinton Library files that Kagan discovered through her correspondence with ACOG that “this procedure is not necessary for any identified circumstance.”

“She could have advised President Clinton at this point, that, ‘Look, there don’t appear to be any circumstances where this is actually necessary. Let’s take another path. Let’s rethink this.’ But no, she’s a pro-abortion zealot, so she is going to change ACOG’s statement to affect the whole legal proceeding.”

Ruse added: “In a sense this is tampering with evidence. The ACOG statement was a key piece of scientific medical evidence that the judges reviewed at every level.”

In response to a question about whether Kagan could have foreseen the affect her changes would have on the courts, Ruse said that Kagan could not only foresee it, but she “intended” it to have such an affect. 

“She knew that ACOG’s view on partial-birth abortion was absolutely key in effort to strike down this law were it ever to be passed and to be signed into law. So I think she did it with a purpose,” Ruse told CNSNews.com.