Kagan made up “science” to support partial birth abortion?

Well, that’s sure how it looks. Let’s hope someone holds her feet to the fire for an explanation of this very damning paper trail.

Read all of Shannen Coffin’s NRO piece. Excerpts:

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.”

Partial birth abortion is never needed to save the life of the mother, and Kagan and the ACOG knew it. But that finding was not acceptable. Unlimited abortion is the goal. So, it appears, Kagan took pen in hand to adjust the science:

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.

Bottom line:

Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.

John Hinderaker:

This statement was obviously false. The federal courts were victimized by a gross deception and a perversion of both the scientific process and the judicial process, carried out, the evidence appears to show, by Elena Kagan.

Ms. Kagan has a great deal of explaining to do. Unless she can come up with an innocent explanation for these documents, she should not be confirmed.

So simpatico with her president, with whom she shares a penchant for partial birth abortions and an unscrupulous ends-justify-the-means approach to using the courts to push a radical, and radically unpopular, social agenda.

Thanks in great part to Kagan’s apparent fabrication, all state laws banning partial birth abortions were struck down in 2000. No one knows how many children might be alive now if it weren’t for Kagan’s alleged falsification. Accurate data on partial birth abortions is hard to come by; there are many reasons why a doctor might not want to own up to performing this diabolical “procedure.” But low estimates put the number of victims at somewhere between 650 and 2200 babies terminated annually before the ban. I don’t know how many were killed in states that had a ban in place before the 2000 decision. But would it be going too far to say, if these charges are true, Kagan lied, babies died?

And let’s not forget to give some credit to the American College of Obstetricians and Gynecologists for selling their souls on this one. Truly despicable.

Someone needs to thoroughly interrogate Kagan on these documents and the part she played in legalizing and expanding the practice of partial birth abortion.

ETA: Yuval Levin:

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. A White House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded?  You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the Bush White House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.

Cross-posted at P&P.