Kagan Admits She Wrote Language Used in Partial-Birth Abortion Statement

June 30, 2010 - 6:52 PM
Solicitor General Elena Kagan said under oath Wednesday that she wrote the notes containing "suggested options" for a 1996 statement on partial-birth abortion issued by the American College of Obstetricians and Gynecologists (ACOG).
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 the third day of her Supreme Court confirmation hearings, Solicitor General Elena Kagan admitted to Sen. Orrin Hatch (R-Utah) that she wrote the notes of “suggested options” for a statement on partial-birth abortion that ended up being used in the final statement issued by the American College of Obstetricians and Gynecologists (ACOG).
 
Regarding the handwritten “suggested options,” Kagan said that “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.”
 
Kagan, however, tried to distance herself from the idea that she altered ACOG’s medical opinion, saying she wanted to give President Clinton “the best medical evidence on this subject as possible" and that "we knew that ACOG thought both” that partial-birth abortion was not the only procedure that could be used and that it could be “the best or most appropriate procedure in certain circumstances.”
 
CNSNews.com reported Tuesday that handwritten notes in the Kagan files released by the Clinton Presidential Library suggested language that was identical to ACOG’s draft statement and that which was ultimately used in the Supreme Court case of Stenberg v. Carhart, striking down Nebraska’s ban on partial-birth abortion.
 
During questioning, Wednesday, Hatch inquired about a Dec. 14, 1996 memo in which Kagan said that it would be a “disaster” if ACOG released its statement saying that its expert panel could not find a circumstance where partial-birth abortion would be the would be the “only option to save the life or preserve the health of the woman.”
 
“So you drafted alternative language,” the Utah senator told Kagan, “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.’ Now that’s a very different spin and obviously a more politically useful spin.”
 
Hatch went on to say, “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.”
 
Kagan objected to his conclusion, saying “Senator, with respect, I don’t think that that’s what happened here.”
 
“We tried to get [President Clinton] absolutely the best medical evidence on this subject possible,” she explained. “And it was not easy, because as everybody in Congress knows, different people said different things about this.”
 
Kagan admitted that she had contact with the physicians’ group.
 
“We did indeed speak with ACOG,” Kagan said.
 
However, she said, she simply helped the organization say what it already thought.
 
“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.” 

Sen. Orrin Hatch (R-Utah)

Under questioning from Hatch, Kagan said she could not remember the details of her consultations with ACOG.
 
“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,” she explained.
 
“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.”
 
When Kagan finished her explanation, Sen, Hatch expressed disappointment in her actions, saying, “That bothers me that you intervened in that particular area in that way.”
 
Kagan defended her actions, saying, “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 medial views on the question.”
 
Sen. Hatch, however, said he was unconvinced, saying 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.” He went on to say he was “troubled” by her actions.
 
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Transcript of exchange:
 
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 ACOG (American College of Obstetricians and Gynecologists), or ACOG as they call it, is a natural source of medical opinion on this subject. 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, “(T)his of course would be disaster.”
 
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.”
 
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 (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. Did you write that memo?
 
Solicitor Gen. Elena Kagan: Senator, with respect, I don’t think that that’s what happened here.
 
Hatch: I’m happy to have you clarify it. That’s my question – did you write that memo?
 
Kagan: The memo which is?
 
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.
 
Kagan: Yes I’ve seen the document, and the document is…
 
Hatch: but did you write it?
 
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. 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.
 
Kagan: 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. 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.
 
Hatch: Let me just ask that question again. Did you write, “this of course would be disaster?”
 
Kagan: The uh --
 
Hatch: You didn’t get that from --
 
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.
 
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.
 
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 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. 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
 
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.