Patterico's Pontifications


Is This the Kagan Smoking Gun?

Filed under: Abortion,Judiciary,Politics — DRJ @ 7:32 pm

[Guest post by DRJ]

NRO’s Shannen W. Coffin has a major story that impacts the Kagan confirmation hearings, and PowerLine’s John Hinderaker summarizes it: While working in the Clinton White House, Elena Kagan was apparently responsible for getting the American College of Obstetricians and Gynecologists (ACOG) — “a supposedly nonpartisan physicians’ organization” — to replace its initial statement on partial birth abortion:

[ACOG] “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”

With the following statement:

[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.”

Read both links for the details of Kagan’s role in producing the ACOG statement, a role that Hinderaker says could be a “gigantic scientific deception:”

“Unless there is some other interpretation of these documents that does not occur to me, it appears that Elena Kagan participated in a gigantic scientific deception. On behalf of the Clinton White House, she deliberately subverted what was supposed to be an objective scientific process. The ACOG report was certainly seen in that light by the federal courts. Federal Judge Richard Kopf was deeply impressed by the scientific integrity of the report; he wrote:

“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.

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.”

Hopefully Senator Lindsey Graham and his Republican colleagues on the Judiciary Committee are reading and listening.


40 Responses to “Is This the Kagan Smoking Gun?”

  1. There is at least one question that Kagan can truthfully protest she can’t answer: When does a legal, rights-endowed, human life begin?

    She is vile.

    Ed from SFV (a70e6f)

  2. It’s outrageous to me, but it may not serve as an actual smoking gun, for a couple of reasons.

    1) Kagan’s amendment did not actually substitute explicit falsehood for truth. The original version said, basically, “PBA has never been found to be the only and thus necessary option.” Kagan’s version says, “[But] It may sometimes be the best or most appropriate.” The two statements do not technically contradict each other, even if the impressions they give are entirely opposed (and the latter, I think, fundamentally misleading).

    2) Kagan, a mere deputy assistant, was in no position to make this change compulsory; if the ACOG panel hadn’t considered her suggestion acceptable they wouldn’t have included it. Unless further documentation can be produced showing that the panel was somehow coerced, or that the change was made covertly (after their submission but before presentation to the courts), Kagan is “guilty” only of making a “helpful” suggestion.

    3) It truly does not seem very likely that the courts of the time would have ruled differently if that one change, in the entirety of the panel’s report, hadn’t been made. The argument that one suggestion therefore subverted either the science or the justice of the process may not be technically proveable.

    Under any other Congress I’d agree, this would be enough to torpedo any hope of confirmation right there. But this is the most hyperpartisan and majority-powerful Congress in twenty years, and unless evidence of an actual crime can be produced, I very much doubt this will be enough (much as I personally dearly wish it was).

    Stephen J. (82dce3)

  3. Democrats and scientific deception!?! Say it ain’t so. Could they be lying about Anthropogenic Global Warming just to get an energy tax??

    iconoclast (fb10de)

  4. Gee, didn’t we just see another science report modified.

    You know the one about the 6 month moritorium in drilling. Let me guess Kagan again???

    Arthur K (4f4739)

  5. It’s funny how if you love science and expect it to follow the scientific method before reaching conclusions such as Kagan’s overtly made up political crap, you’re the ‘enemy of science’.

    And how dare anyone oppose science… just look at all the things it accomplished in the face of religious oppressors of ages past who acted just like Kagan and Gore do now?

    Dustin (b54cdc)

  6. It’s a scandal for ACOG, not for Kagan. She tried to get an organization to go along with her and her employers point of view. Where’s the scandal there?

    XBradTC (3d2322)

  7. She faked a report from a scientific association. They adopted it but those groups, in my own experience, are run by hacks with little recent experience in the specialty. They are medical politicians and I know them well. There is no medical reason for a D&X. None. It is all politics.

    Mike K (82f374)

  8. Via Instapundit:

    Reader Aric Giddens emails: “I am an Ob/Gyn and while I am pro-choice, I do respect the position of those who are against abortion. I said at the time, however, that the ACOG statement was not true and and no basis in medical fact. It was clearly a political statement. A so called ‘partial-birth abortion’ is almost never performed and doesn’t have to be to save the life of or protect the life of the mother. I thought President Clinton was pandering to his base to opposed such a ban. I have never seen a medical need for such a procedure in 20 years in my field. Such a ban would not have endanger any woman’s life or health. While I am opposed to the government dictating what medical procedure may or may not be performed, there was not science behind the ACOG statement.”

    Dana (1e5ad4)

  9. What Stephen J. said. As much as I’d like to see this b-tch get a boot in the ass this “smoking gun” only seems to be a suggestion….

    Interesting how 2 yrs ago 60% of the Senate said Kagan wasn’t fit to argue cases before the Supreme Court but now she’s “qualified” to be a Supreme Court Justice?

    Impeach Obama (7c54dc)

  10. Re comments 6 and 7
    The scandal is all ACOG. They adopted her language, and then pretended no one outside ACOG had been involved. The responsibility for the bad science and the pretence of no outside involvement was theirs, not Kagans. ACOG faked, not Kagan. She simply asked them to insert a vaguely worded rather ambivalent passage into their report, a request which, upon the information we have now, they were free to accept or reject.

    kishnevi (3721d8)

  11. Dana – You just want to oppress womyn with mistakes.

    JD (959071)

  12. kishnevi,

    She was aware of and participated in making the change. Politicians may be able to use the defense that it wasn’t their fault or problem, but lawyers are officers of the court and they have a higher duty.

    DRJ (d43dcd)

  13. This is legitimate insight into how she will vote. Some of y’all sure seem willing to give her a pass on this one. No way!

    WASHINGTON (AP) — Supreme Court nominee Elena Kagan is calling the Constitution a living document, saying it’s framers wrote it to last through ever-changing circumstances.

    Her remarks in an exchange with Sen. Patrick Leahy on the second day of confirmation hearings touched on suggestions by Republican critics that she would legislate from the bench.

    Kagan said the Constitution’s authors laid out both specific rules and broad concepts. She noted they declared 30 the minimum age to be a U.S. senator but didn’t elaborate on the Fourth Amendment’s “unreasonable search and seizure.” Kagan said they could have been more specific, but couldn’t have known about bomb-sniffing dogs and computers.

    “Either way,” she said, “we apply what they meant to do, so in that sense we’re all originalists.”

    — That’s right. “Intent”; as opposed to what the COTUS actually says.

    Icy Texan (b865a5)

  14. The scandal is all ACOG.

    There was nothing particularly beyond the pale of a political operative out of the West Wing doing what she did.

    However, the “smoking gun” here will relate to what responses she may have given to written questions in her confirmations for SG and now for SCOTUS. I will bet anything she was asked for any reflections she would have that relate her involvement in any abortion cases. I will further bet more than anything that she did not include anything about this episode in response to such questions. Dumping these documents does not constitute a response to direct questions in a confirmation.

    Ed from SFV (a70e6f)

  15. She is a participant in defrauding the Court, before the fact.
    She knew, or should have known, exactly what she was doing, and advocating; and as an officer of the court, she needs to be sanctioned.
    Which in this case, should be a return ticket to Cambridge – if they’ll have her.
    It’s all about what the meaning of is, is.

    AD - RtR/OS! (f22b48)

  16. “Where’s the scandal there?”

    XBradTC – Using the weight of the White House to persuade a professional organization to materially change a medical conclusion purely for political reasons and to deceive a court? No scandal at all. None.

    daleyrocks (1d0d98)

  17. When I trained as an EMT a potential “breach birth” in the field (i.e. baby presenting feet first) was considered one of the most dangerous, life threatening, medical emergencies. The techniques we were taught to use in these cases I will not go into here.
    I have often wondered how deliberately inducing a breach birth solely for the purpose of terminating a baby with the “moral fiction” “the birth has not been completed” could in any case be considered an ethical action for a physician.

    Have Blue (854a6e)

  18. The missing link here seems to be, “How did ACOG come to accept a revision that was completely at odds with its initial statement?” Kagan’s behavior was completely reprehensible. She deliberately distorted the weight of professional opinion in order to serve her policy agenda. But the commenters who protest that the scandal lies with ACOG have a valid point. Perhaps the “scandal” could best be expressed, “She lied and they swore to it.” The question she needs to answer is, “Why was that agenda so important that you felt you had to reverse it?”

    Old Bull (8b0130)

  19. @ 18: the statements are consistent w/ each other. In fact, one implies the other: if D&X is the best alternative, it stands to reason that there are other alternatives.

    I understand why Powerline misreads them as mutually exclusive (they have a vested interest in distorting truth to score political points), but this is a particularly daft political ploy on their part.

    jpe (55dab0)

  20. It seems very damning, but it’s yet to blow up on “regular” media.

    dissident (ba535d)

  21. Ace has a post up about Kagan answering questions about this memo. Didn’t have time to read it but she seems to admit that the memo is in her handwriting but that she did not actually write it.

    Have Blue (854a6e)

  22. The exchange I heard that I found pretty worrisome was I believe Coburn asking about her case concerning McCain Feingold as Solicitor general, where she tried to ignore potential implications of banning books, and simply said “it wouldn’t be done” and was then answered, “If I’m your client and all you tell me is that it’s never been done before, is that supposed to be reassuring?” (or something to that effect).

    The idea of supporting a faulty law because you have confidence that no one “will use it that way” sounds quite flawed to me.

    MD in Philly (3d3f72)

  23. ““Intent”; as opposed to what the COTUS actually says.”

    Um…consider DC v. Heller, in which the SCOTUS majority ruled that the first clause of the Second Amendment has no impact whatsoever on its second clause. In short, the SCOTUS majority ruled that the Constitution’s actual words don’t always matter.

    wesmorgan1 (546072)

  24. No, moron, what they said is that the militia clause did not restrict ownership of weapons to the militia; but that all eligible members of society should possess the ability to “keep and bear arms” so that they could support the militia if required or necessary – something about ‘subordinate’ and ‘dominate’ clauses.

    AD - RtR/OS! (209868)

  25. This ACOG thing is hardly a showstopper. Both statements are factually and medically true. A D&X will hardly ever be the only option (as originally stated), but I don’t think that too many of us–including physicians–have the knowledge/foreknowledge required to state that it will NEVER be the most appropriate option.

    I mean, stop and think about it; we are fascinated by medical situations that have never before been seen or envisioned, right? (I’m talking about the real-life trauma and ER shows, not fictional stuff like House.) It seems a little…presumptuous to simply declare that a particular procedure can’t ever be the best for the patient.

    wesmorgan1 (546072)

  26. I am a doctor. The treatment for a brain tumor never involves decapitation so the tumor can not spread to the chest.

    While the two versions of what is said in ACOG are not factually exclusionary, they imply very different positions on the topic.

    If I sell you a plot of land in Florida and tell you, in writing, that the area has land suitable for building, and you buy the land and find out that the area can not be built on because of environmental concerns about adjacent wetlands habitat, have I committed fraud or not? Even if it could be decided that I did not commit criminal fraud nor enter a contract in bad faith, everybody would agree I was a scoundrel and a cheat and not to be trusted.

    Some differences in viewpoint are readily understood as just that, others are a deliberate twisting intended to deceive.

    We would nned to know the exact details of the process in putting out this statement to see if it as like the recent example of the feds adding to a paper written by experts and trying to imply the experts agreed with the additional material as well, which they did not.

    MD in Philly (3d3f72)

  27. It seems a little…presumptuous to simply declare that a particular procedure can’t ever be the best for the patient.
    Comment by wesmorgan1 — 6/30/2010 @ 12:17 pm

    It seems more than a little presumptuous to treat your fantasy of medicine like it was reality. In other words, as MD in Philly notes, you’re wrong.

    Stashiu3 (44da70)

  28. One simple question. If they can mostly deliver a baby in partial birth abortion, and then kill it and finish delivery to supposedly save the life of the mother; why can’t they completely deliver the baby without killing it to save the life of the mother?

    I mean, GET EFFING REAL, the baby is being completely delivered thru the birth canal in both instances. Is the baby’s death a pagan sacrifice or something that will insure the life of the mother? Or is it just so the mother won’t be troubled in having to raise the baby.

    What is the difference between patial birth abortion, and waiting until the baby is completely born alive, and then bashing its brain out against a wall? I’ll EFFING tell you! NOT ONE DAMN BIT OF DIFFERENCE, BOTH ARE MURDER!

    peedoffamerican (9f22c9)

  29. #13 Icy Texan, did she really say:

    ‘Kagan said they could have been more specific, but couldn’t have known about bomb-sniffing dogs and computers?’

    because if she did, she just ain’t smart enough to be on the Supreme Court.

    I have no idea when the first “bomb sniffing dog” was so designated, but both bombs and dogs had been around for quite some time before the Constitution was penned, and it beggars belief that dogs had not already been used to search for like or similar contraband before then.

    EW1(SG) (edc268)

  30. Dogs have been trained for tracking since there were dogs.
    Kagan is an idiot, a very well educated idiot, but one nevertheless
    (wasn’t it George Orwell who said that to believe something really stupid, you had to go to graduate school?).

    AD - RtR/OS! (209868)

  31. One simple question. If they can mostly deliver a baby in partial birth abortion, and then kill it and finish delivery to supposedly save the life of the mother; why can’t they completely deliver the baby without killing it to save the life of the mother?

    Since you ask … a “hung” breech delivery could result in such a circumstance. Whether or not the baby is still alive at that point, or would be viable post-birth (if, say, previously undiagnosed hydrocephalus could be the cause of the hangup) surgical intervention could be the only real option. That could take more than one form, but an IDX procedure would be one of those options, and would be less hazardous to the mother than most of the other options. For example, slicing through the cervix and uterus to attempt a live birth at that point carries MUCH higher odds of fatal hemorrhage or permanent maternal injury.

    I disapprove of Kagan’s lawyerly diddling, but the reason ACOG did not protest the language change is simply that the text as presented in both cases was factually correct. An IDX would not be the only option available in such a circumstance, yet could well be the least medically hazardous option to the mother, and therefore medically indicated.

    Tully (4dce1a)

  32. wesmorgan, that’s a false analogy really. The justification clause of the Second Amendment is not a restriction on the right, as has been well demonstrated by Eugene Volokh’s work.

    SPQR (26be8b)

  33. Comment by Tully

    I don’t deliver babies or operate, so I won’t claim first hand knowledge. Mike K. up at post #7 disagrees. I am not sure why ACOG made the change, allowed the change, didn’t protest when they found out about the change, or is just now realizing it was changed. I argues earlier that while both statements may be technically true, they communicate very different perceptions, and there was a thought process behind the change and why it was made.

    And whichever form was used, both include the phrase “health of the woman”, which as I understand it, has been interpreted very broadly and is de facto for any reason the woman and doctor want to make up.

    MD in Philly (3d3f72)

  34. AD – RtR/OS!- well said. I never liked her to begin with!

    Green E-Cigarette (3c4aad)

  35. Bullshit Tully,

    They can install a shunt while the baby is still in the womb to relieve the swelling in hydrocephalus babies or use one of the other methods of treatment for it. Also, A Cesarean section is performed at the discretion of the obstetrician when head size precludes vaginal delivery. In this day and age, the threat to the life of the mother during childbirth is so rare to be almost non-existent.

    You have just given another Bullshit argument to condone the murder of an innocent. Here is the main reason for partial birth abortion under your scenario of hydrocephalus:
    Therefore, hydrocephalus treatments depend on the type of fetal hydrocephalus, rate of progression, gestational age and, ultimately, the family’s wishes. Isolated hydrocephalus without associated malformations, detected before the legal abortion limit, may be reason enough to terminate the pregnancy for families who cannot accept the prospect of having a handicapped child.

    99.999999% of abortions have nothing whatsoever to do with danger to the mother, it is used as a form of birth control. It is not the woman’s choice to do with her body as you libturds like to point out. From the moment of conception, that thing, or lump of flesh as pro-aborts call it, is a baby. It is a distinct individual that is totally different in DNA from its mother and therefore is not her body. The choice was made when she chose to have sex. And don’t give me the old saw about rape either, less than 1% of abortions are because of rape.

    There are approx. 1.3 million abortions per year in the USA. So if allowing the 01% for rape and the less than .1% for health of the mother (and that’s a generous estimate) equals 1.1%. That means that approx. 1,285,700 abortions per year are for birth control reasons only. That means that approx. 45-50 million babies have been aborted for birth control reasons alone since the travesty of Roe v Wade in 1973. That’s approx. 800% more than the Jews that were killed by Hitler in the Holocaust.

    Oh and by the way, I used to be pro-abortion, but I changed.

    [note: released from moderation. –Stashiu]

    peedoffamerican (9f22c9)

  36. And also Tully, in the partial birth abortion procedure, the baby is intentionally delivered as a breech birth by the murdering scum of the abortionist. That’s so the baby never draws a breath with its head outside of the mothers body. I suggest that you clue in and google a site that shows video or even drawings of a partial birth abortion. Then come back and say that it is not a baby that was intentionally killed.

    The only difference between partial birth abortion and bashing the babies head against a wall after birth is less than 1 minute, and location. They are both murder, pure and simple. Anybody, and I do mean anybody, that supports or tries to justify it is a sick sadistic bastard that ought to have the same exact procedure done to them. That would be justice.

    peedoffamerican (9f22c9)

  37. The pro-abortion argument is strictly for birth control. And the pro-choice side admits it.

    “I would not want my child punished with a baby if they made a mistake.” – B. Obama

    Have Blue (854a6e)

  38. That’s right HB, their latest euphemism for abortion on demand is “reproductive rights”.

    peedoffamerican (504f81)

  39. That’s right, EW1(SG). She really did say something that stupid. As AD pointed out, dogs have been used by law enforcement (fugitive retrieval, locating missing kids and dead bodies, crowd control) for centuries; but, apparently — at least in this woman’s mind — there is some qualitative difference in using a bomb-sniffing dog; one that might bring about the question of unlawful search & seizure.

    Maybe the dogs are just too good, and don’t give the terrorist a fair chance to get away.

    Icy Texan (180a90)

  40. If a bomb sniffing dog is problematical then wouldn’t a bloodhound tracking a fugitive be also.

    The obsession with the rights of defendants has less to do with actual rights and more to do with hampering the efforts of law-enforcement.

    Have Blue (854a6e)

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