Elena Kagan, under questioning from Sen. Orrin Hatch, admitted that while serving as an adviser to President Clinton, she wrote a memo that has generated controversy because it suggests she lead an effort to politicize the science that was at the center of the partial-birth abortion debate.
Yesterday, National Review ran an article by Bush administration lawyer Shannen Coffin, disclosing documents which show that Kagan intervened to make sure that a supposedly non-partisan scientific statement on partial-birth abortion by the American College of Obstetricians and Gynecologists (ACOG) was more favorable to the Clinton administration’s point of view.
An earlier draft of the ACOG statement, Kagan warned at the time, would be a “disaster” – but the final draft adopted language that she suggested, and went on to play a crucial role in legal battles over the procedure.
Under questioning from Hatch, Kagan owned up to writing the memo, but denied that she intervened to pressure ACOG into changing its medical conclusions. She argued that in talks with ACOG, the group expressed two opinions on the procedure.
“What ACOG thought was that on the one hand, they couldn’t think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case,” Kagan explained. “But second, on the other hand, that they could think of circumstances in which it was the medically best, or medically most appropriate, procedure.”
She insisted that all she wanted to do was make sure that the ACOG’s views were, “accurately conveyed to the American public.” And responding to what she meant by calling the initial statement a “disaster,” she claimed, “the disaster would be if the statement did not accurately reflect all of what ACOG thought.”
Hatch told her that the matter “bothers me a lot.”
A transcript of today’s exchange, which picks up after Hatch asks her if she authored the memo, after the jump.
KAGAN: Well, I’ve seen the document, and the document and the document is…
HATCH: But did you write it? Is that your memo?
KAGAN: The document is certainly in my handwriting. I don’t know whether the document is a product of a conversation I had with them. If I could just go back Sen. 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 course of the period of time when this 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 absolutely 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 women’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 when we saw a draft statement that stated the first of these things which we knew ACOG to believe, but not the second, which we also knew ACOG to believe. And I had some discussions with ACOG about that graph.
HATCH: Let me just ask that question again. Did you write, “this of course would be a disaster”? It’s in your handwriting. You didn’t get that from the…
KAGAN: No, no, no, you’re exactly right, I didn’t realize that you were referring …No, yes, that’s exactly right. And the disaster would be if the statement did not accurately reflect all of what ACOG thought. Both, that there were two parts to what ACOG thought. And I recall generally, not with any great specificity, but recall generally, talking to ACOG about that statement, and about whether that statement was consistent with the views 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 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 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: Mr. Chairman, I just have one or two sentences I’d like to say. I tell you, this bothers me a lot, because I know there were plenty of doctors in ACOG who did not believe that partial birth abortion was an essential procedure, who believed that it was really a brutal procedure. And it was a constant conflict there. And as you know, many in Congress came to the conclusion that it was a brutal procedure too. It really was unjustified. That bothers me that you intervened in that particular area in that way. That’s all I’ll say about it, but I just want you to be aware that that bothers me.
KAGAN: 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. The only question 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 in any other statements we were aware of to make sure that that information was accurately conveyed to the American public.