Kagan Legal and Scientific Distortions

Elena Kagan http://article.nationalreview….

According to National Review Online, during her time as Solicitor General, Elena Kagan may have invented false statements in an attempt to overturn partial birth abortion bans.  The American College of Obstetricians and Gynecologists (ACOG) had found that they “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” and that “in the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health.”  These scientific findings were in contrast to the pro-abortion argument she wished to make to the courts.  So….

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.

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.


Kagan and “the White House abortion team” (her words) have a lot of explaining to do.  NRO has pdfs for the source documents to back up their claims.  Both Memorandums are short and I highly recommend reading them.



Scientific arguments, rather than legal arguments, are often made in court cases.  If Elena Kagan puts her own personal left wing agenda ahead of both science and the law here, what kind of bias will she bring to the bench?  Aside from abortion, there are many other similar legal and scientific debates in other areas.  What about Global warming and it’s impact involving “Cap and Trade?”  What about “ballistic fingerprinting” and it’s relationship to our second amendment rights?

Elana Kagan has show a lack of respect for the law and should not be confirmed.

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