Kagan Admits Language from Her Handwritten WH Notes Ended up in American College of Obstetricians & Gynecologists' Statement on Partial Birth Abortion, Insists Idea Was ACOG's

July 6, 2010 - 8:44 PM
Supreme Court nominee Elena Kagan would not confirm suggestions by two top Republican senators that, as a lawyer in the Clinton White House, she influenced the language of a 1996 public policy statement on partial-birth abortion issued by the American College of Obstetricians and Gynecologists.

Elena Kagan, during confirmation hearings on her nomination to the Supreme Court. (AP photo/Alex Brandon)

(CNSNews.com) - Under questioning last week in the Senate Judiciary Committee, Supreme Court nominee Elena Kagan admitted that "suggested" language from notes found in her Clinton White House files that ended up verbatim in a policy statement on partial-birth abortion from the American College of Obstetricians & Gynecologists (ACOG) was in her handwriting, but insisted the idea in the "suggested" language came from ACOG.

The language from Kagan's handwritten notes that made it into ACOG's statement on partial-birth abortion--also ended up being quoted verbatim--as a definitive medical authority on the issue--in the U.S. Supreme Court decision that later overturned Nebraska's ban on partial-birth abortion.

Kagan was questioned during her confirmation hearings last week by Sens. Orrin Hatch (R-Utah) and Lindsey Graham (R-S.C.) about the handwritten notes from 1996 were found in her Clinton White House files.  In 1996, Kagan as an associate counsel in the White House Counsel's office.



“When Congress debated the ban on partial-birth abortion, one issue was whether this particularly gruesome abortion method was medically necessary,” Hatch said to Kagan during day three of her Senate confirmation hearing.
 
“The American College of Obstetricians and Gynecologists, or ACOG as they call it, is a natural source of medical opinion on this subject,” Hatch explained. “According to the documents we (the Senate Judiciary Committee) received, you wrote a memo to your superiors in the Clinton White House about this, that the ACOG was considering a statement that its experts’ panel found no circumstances under which partial-birth abortion was the only option for saving the life or preserving the health of the woman. You wrote, “This of course would be disaster.”
 
The documents Hatch referenced were had been released by the Clinton Presidential Library, and covered Kagans times as an assistant counsel and domestic policy adviser in the Clinton White House.
 
As CNSNews.com has reported, those files reveal: 
 
-- That on Dec. 5, 1996, the White House obtained a draft copy of a proposed statement that ACOG was preparing to release on intact dilatation and extraction (D&X) abortion -- the procedure used in a partial-birth abortion -- that an expert panel “could identify no circumstances under which this [partial-birth abortion] procedure, as defined above, would be the only option to save the life or preserve the health of the woman.”
 
-- A Dec. 14, 1996 memo, in which Kagan wrote that it would be a “disaster” if ACOG released its statement as written in draft form because it contradicted President Clinton's argument that he opposed the ban on partial birth abortion because it did not  include language that would allow a woman to undergo the partial-birth procedure for health reasons. In a press conference on Dec. 13, 1996, the day before Kagan wrote the memo, Clinton had stressed this very point.  
 
--Notes from late 1996 in Kagan's handwriting which presented “suggested options” for changes to the ACOG statement, including one saying that a partial-birth abortion, “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.”
 
-- Documents that show that the “suggested option” found in Kagan's files in her handwriting was inserted verbatim into the final “Statement on Intact Dilitation and Extraction” ACOG released on January 12, 1997, and was ultimately quoted in the Supreme Court majority opinion in the case of Stenberg vs. Carhart, striking down Nebraska’s ban on partial-birth abortion.

Hatch asked Kagan if she wrote the Dec. 14 memo, and suggested to her that the “disaster” she feared would happen was political in nature.
 
“It would be a disaster, you wrote, because ACOG opposed the ban on partial-birth abortion; if anyone ever found out--you wrote that it could leak, (if) ACOG officially released its original statement -- it could have negative political consequences,” Hatch said.
 
“So you drafted alternative language that would say that partial birth abortion ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman,’ ” he added.
 
The Utah senator also suggested that the final statement that was released by ACOG contained the language from Kagan’s handwritten notes because of, not despite, Kagan’s efforts.
 
“The ACOG executive board copied your language verbatim into its final statement. Your language played an enormous role in both legal and political fights for banning partial-birth abortion,” Hatch said. “The (Supreme Court) relied on it when striking down the Nebraska ban in Stenberg vs. Carhart. I’m really stunned by what appears to be a real politicalization of science. The political objective of keeping partial-birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry and that they had concluded.”
 
But Kagan, the current solicitor general of the United States and former dean of Harvard Law School, immediately rejected Hatch’s conclusion.

“Senator, with respect, I don’t think that that’s what happened here,” Kagan began the exchange.
 
Sen. Hatch: I’m happy to have you clarify it. That’s my question – did you write that memo?
 
Miss Kagan: The memo which is?
 
Sen. Hatch: I’m sorry -- The memo that caused the -- to go back to the language of “medically necessary” -- that was the big issue to begin with.
 
Miss Kagan: Yes I’ve seen the document, and the document is --
 
Sen. Hatch: But did you write it?
 
Miss Kagan: The document is certainly in my handwriting. I don’t know whether the document was a product of a conversation that I had with them.
 
(A full transcript of the exchange is attached at the end of this story)
 
Kagan explained that President Clinton already had strong views on partial-birth abortion and that she and the White House were trying to obtain the best advice and information available.
 
“We tried over the course of the period of time when the statute was being considered – actually twice – to get [President Clinton] absolutely the best medical evidence on this subject possible. And it was not easy, because as everybody in Congress knows, different people said different things about this.”
 
But when Hatch asked again whether she had written (in the Dec. 14 memo) -- “This of course would be disaster” -- should the draft ACOG statement be released, Kagan suggested that she was only stating what ACOG itself expressly believed.
 
“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,” Kagan told Hatch.
 
Kagan admitted that the White House had indeed had discussions with ACOG about its statement, but said she could not remember details of her consultations with ACOG.
 
“I recall generally, not with any great specificity,” she said, “but 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 – 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 -- 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.”
 
Kagan, however, denied that she was the specific source of the language.
 
“What ACOG thought and always conveyed to us was two things: what ACOG thought was that, on the one hand, they couldn’t think of a circumstance in which this procedure was the absolute only procedure that could be used in a given case,” Kagan told the senator. “But second, on the other hand, that they could think of circumstances in which it was the medically best or medically most appropriate procedure, that it was the procedure with the least risk attached to it in terms of preventing harm to the woman’s health.”
 
When Kagan finished her explanation, Hatch said he was troubled by her actions, saying, “That bothers me that you intervened in that particular area in that way.”
 
Kagan, however, defended herself.
 
“Sen. 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,” she said.
 
Hatch, unconvinced, said that, in his experience working with OB-GYNs, he “hardly ever met anybody who thought that [partial-birth abortion] was a fair or good procedure.” 
 
Kagan, meanwhile, was also questioned by Sen. Lindsey Graham (R-S.C.) regarding her efforts to add language to ACOG’s statement.
 
Graham asked Kagan: “Was that because you were worried that if you didn’t get what you wanted in place, the [Supreme] Court might seize upon that statement and make a different ruling, based on science?”
 
Kagan replied: “No sir, it was not.”
 
Graham, however, told Kagan that he was “shocked” by her answer.
 
“(I)f I believed the way you do, that’s exactly what I would want,” Graham said. “If I really did believe that (the) partial-birth abortion (ban), as being proposed, was too restrictive -- and I think you honestly believe that you wanted to have the broadest definition possible when it came to partial-birth abortion to allow more cases rather than less – then I would have been motivated to get the language most favorable to me. Are you saying you weren’t motivated to do that?
 
Kagan responded: “Senator, I was working for a president who had clear views on this subject.”
 
But Graham, a former military prosecutor, pointed Kagan to a June 22, 1996 memo also released by the Clinton Library, which described a meeting between representatives from both ACOG and the Clinton White House as “something of a revelation.” 
 
From the meeting, Kagan wrote, she had learned that “there just aren’t many [circumstances] where use of the partial-birth abortion is the least risky, let alone ‘necessary,’ approach.” However, she continued later in the 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.”
 
Graham told Kagan: “(Y)ou were trying to take [President Clinton] to an area where he even felt a bit uncomfortable. You were advocating – from what I can tell – a broader view of how partial-birth abortion would be interpreted.”
 
Referring specifically to the meeting discussed in the June 22 memo, the senator said, “When you met with the professional community of doctors, they informed you early on in a private meeting – according to the record we have – that there would be very few cases where an abortion would be allowed under the way this thing [partial-birth abortion ban] was written.”
 
Graham added: “And [for] somebody with your background and your view of this issue, to me, this would seem disturbing and you were trying to change that and broaden it, is that not true?”
 
In response, Kagan denied this, saying, “With respect, senator, it’s not true. I had no agenda with respect to this issue.”
 
ACOG has not responded to numerous requests from CNSNews.com for comment on this subject.
 
-------------------------------
Transcript of Exchange between Sen. Hatch and Solicitor General Kagan
 
Sen. Orrin Hatch (R-Utah): Well let me switch topics again, this time to abortion. When Congress debated the ban on partial birth abortion, one issue was whether this particularly gruesome abortion method was medically necessary. The American College of Obstetricians and Gynecologists, or ACOG as they call it, is a natural source of medical opinion on this subject.
 
Sen. Hatch: According to the documents we received, you wrote a memo to your superiors in the Clinton White House about this, that the ACOG was considering a statement that its experts panel found no circumstances under which partial birth abortion was the only option for saving the life or preserving the health of the woman. You wrote, “This of course would be disaster.”
 
Sen. Hatch: That is something that does bother me. It would be a disaster, you wrote, because ACOG opposed the ban on partial-birth abortion – if anyone ever found out, you wrote that it could leak, ACOG officially released its original statement, it could have negative political consequences. So you drafted alternative language that would say that partial birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman.”
 
Sen. Hatch: Now that’s a very different spin and obviously a more politically useful spin. The ACOG executive board copied your language verbatim into its final statement. Your language played an enormous role in both legal and political fights for banning partial birth abortion. The SC relied on it when striking down the Nebraska ban in Stenberg vs. Carhart. I’m really stunned by what appears to be a real politicalization of science.
 
Sen. Hatch: The political objective of keeping partial birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry and that they had concluded. Did you write that memo?
 
Solicitor General Elena Kagan: Senator, with respect, I don’t think that that’s what happened here.
 
Sen. Hatch: I’m happy to have you clarify it. That’s my question – did you write that memo?
 
Miss Kagan: The memo which is?
 
Sen. Hatch: I’m sorry -- The memo that caused the -- to go back to the language of “medically necessary” -- that was the big issue to begin with.
 
Miss Kagan: Yes I’ve seen the document, and the document is…
 
Sen. Hatch: But did you write it?
 
Miss Kagan: The document is certainly in my handwriting. I don’t know whether the document was a product of a conversation that I had with them.
 
Miss Kagan:  If I could just go back Senator Hatch, this was an incredibly difficult issue for everybody who was associated with it for obvious reasons. President Clinton had strong views on this issue. And what he thought was that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman. And those were always his principles. And we tried over the course of the period of time when the statute was being considered – actually twice – to get him absolutely the best medical evidence on this subject possible. And it was not easy, because as everybody in Congress knows, different people said different things about this. There was conflicting evidence. And we tried to do our best to bring all the evidence – all the conflicting views to his attention. In the course of that, we did indeed speak with ACOG. ACOG had an interest in this statute, and ACOG had views about this statute. What ACOG thought and always conveyed to us was two things: what ACOG thought was that on the one hand, they couldn’t think of a circumstance in which this procedure was the absolute only procedure that could be used in a given case. But second, on the other hand, that they could think of circumstances in which it was the medically best or medically most appropriate procedure, that it was the procedure with the least risk attached to it in terms of preventing harm to the woman’s health.
 
Miss Kagan: And so we knew that ACOG thought both of these things, we informed the president, President Clinton, of that fact. There did come a time where we saw a draft statement that stated the first of these things that ACOG to believe, but not the second, which we also knew ACOG to believe. And I had some discussions with ACOG about that draft.
 
Sen. Hatch: Let me just ask that question again. Did you write, “this of course would be disaster?”
 
Miss Kagan: The uh --
 
Sen. Hatch: You didn’t get that from --
 
Miss Kagan (interrupting): No, no, no, you’re exactly right, I’m sorry. I didn’t realize you were referring – Yes, that’s exactly right, and 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 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 – 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 -- 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. And so I think that this was all done in order to present both to the president and to congress the most accurate understanding of what this important organization of doctors believed with respect to this issue.
 
Sen. Hatch: Well, I’ll tell you this bothers me a lot because I know that there were plenty of doctors at ACOG that did not believe that partial birth abortion was an essential procedure, and who believe that it was really a brutal procedure and it was a custom conflict there, and as you know, many in congress came to the conclusion that it was a brutal procedure too and that it was really unjustified. That bothers me that you intervened in that particular area in that way. And that’s all I’ll say about it, but I just want you to be aware that that bothered me
 
Miss Kagan: 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 medial 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. I do agree with you, this was an enormously hard issue. And President Clinton found it so and thought that the procedure should not be used except in cases where it was necessary for life or health purposes. And we tried to get him the best information we could about the medical need for this procedure, something that was not always easy, and tried in all the statements that he made to make sure – and any other statements that we were made aware of – to make sure that that information was accurately conveyed to the American public
 
Sen. Hatch: One of the things I did as an attorney is represent doctors, including some obstetricians and gynecologists – I’ve had a lot of experience with them. I hardly ever met anybody who thought that was a fair or good procedure. But be that as it may, I just want you to know that I’m troubled by it. And even though I care a great deal for you and respect you.
 
------------------------------------------------
Transcript of the exchange between Sen. Graham and Solicitor General Elena Kagan
 
Sen. Lindsey Graham (R-S.C.): There’s a memo that we have here that talks about if certain phrases were used by the, what was the group, ACOG, what was the acronym?
 
Solicitor General Elena Kagan: The American College of Obstetricians and Gynecologists.
 
Sen. Graham: As I understand it, they were going to issue a statement that you thought would be a ‘disaster’ and you wanted to get the full statement into place. Was that because you were worried that if you didn’t get what you wanted in place, the [Supreme] Court might seize upon that statement and make a different ruling, based on science?
 
Miss Kagan: No sir, it was not.
 
Sen. Graham: Well, Ms. Kagan, I’m shocked that you say that because if I believed the way you do, that’s exactly what I would want. If I really did believe that partial-birth abortion as being proposed was too restrictive -- and I think you honestly believe that you wanted to have the broadest definition possible when it came to partial-birth abortion to allow more cases rather than less – then I would have been motivated to get the language most favorable to me.
 
Sen. Graham: Are you saying you weren’t motivated to do that?
 
Miss Kagan: Senator, I was working for a president who had clear views on this subject.
 
Sen. Graham: But you were trying to take him to an area where he even felt a bit uncomfortable. You were advocating – from what I can tell – a broader view of how partial-birth abortion would be interpreted. When you met with the professional community of doctors they informed you early on in a private meeting – according to the record we have – that there would be very few cases where an abortion would be allowed under the way this thing [partial-birth abortion ban] was written.
 
Sen. Graham: And [for] somebody with your background and your view of this issue, to me, this would seem disturbing and you were trying to change that and broaden it, is that not true?
 
Miss Kagan: With respect, senator, it’s not true. I had no agenda with respect to this issue.
 
Sen. Graham: Wait, wait. I certainly have an agenda when it comes to an abortion. I respect the courts but I’m trying to push the rights of the unborn in a respectful way. You can be pro-choice and be just as patriotic as I am. You can be just as religious as anybody I know. But that’s the point here. It is okay, as an advocate, to have an agenda.
 
Sen. Graham: I think [Justices] Alito and Roberts had an agenda. They were working for a conservative president who was putting conservative policies [in place]. So it just is a bit disturbing that you, quite frankly, say you don’t have an agenda when you should have had. If I’m going to hire you to be my lawyer I want you to have an agenda [and] I want it to be my agenda.
 
Miss Kagan: I was trying to implement the agenda of the United States president, whom I worked for.
 
Sen. Graham: Did you have a personal belief that [the] partial-birth abortion [ban], as it was being proposed, was too restrictive on a woman’s right to choose?
 
Miss Kagan: I was, at all times, trying to ensure that President Clinton’s views and objectives with respect to this issue were carried forward. President Clinton had strong views –
 
Sen. Graham: Here’s the difference between being a lawyer and a policy person in a political shop. I just wanna’ try the best that I can -- it’s okay if you did [have an agenda]. I expect that presidents are going to hire talented, intellectually gifted people who think like they do [and] that will push the envelope when it comes to the law. And the record is replete here, on this issue and others: you were pushing the envelope in terms of the left side of the aisle. I think the record was replete with Alito and Roberts that they were pushing the envelope on the other side. And that may make you feel uncomfortable. I hope it doesn’t. I just believe it to be true. And you don’t agree with me there?
 
Miss Kagan: Sen. Graham, the two of us have agreed on many things over the course of this hearing, but we don’t agree on this. What I tried to do was to implement the objectives of the president on this issue. At the same time, to provide the president with the best legal advice – straight, objective – as I could. And, when I became a policy person, to enforce and to ensure that his policy views were carried out.
 
Sen. Graham: I just, quite frankly, am surprised to hear that, because if I believed the way you did and I had the opportunity to serve at that level, I’d do everything I could to push the law in my direction in a way that was ethical. And I didn’t see anything you did that was unethical. I did see an effort on your part to push the law in the direction consistent I think with the Clinton administration and your political beliefs, which is absolutely fine.