Reaction to Day Three of Elena Kagan's Confirmation Hearings

Today, Elena Kagan’s testimony before the Judiciary Committee seemed inconsistent with the memos she wrote on partial-birth abortion during her time in the Clinton White House. 

During Kagan’s time in the White House, she urged President Bill Clinton to oppose any meaningful restrictions on partial-birth abortion.  As part of this effort, Kagan worked to change the positions of two major medical groups – the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA). 

When Kagan found out in December 1996 that ACOG was considering a statement that its experts "could identify no circumstances under which the [partial-birth] procedure… would be the only option to save the life or preserve the health of the woman," Kagan wrote a memo stating that this “of course would be [a] disaster.”  As Senator Orrin Hatch restated today, Kagan wrote: “It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.” 

In response, Kagan drafted language to amend ACOG’s statement stating that partial-birth abortion “may be the best and most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman.”   In January of 1997, ACOG “copied verbatim” Kagan’s suggested language in its final policy statement on partial-birth abortion, which the U.S. Supreme Court relied on when it struck down the Nebraska ban of partial-birth abortion in Stenberg v. Carhart

The science did not change between ACOG’s original draft statement and its final statement released in January of 1997.  Kagan’s passionate agenda intervened.  ACOG’s initial statement never endorsed the procedure nor indicated that partial-birth abortion may be necessary to save the life or preserve the health of the woman; in fact it stated the opposite.  It was only after Kagan advocated for a change in the language that ACOG’s final statement indicated that partial-birth abortion might be needed.  This, according to Senator Hatch, is “a stunning politicization of science.”

When Hatch questioned Kagan about her actions, Kagan responded that she was simply trying to ensure that ACOG’s full view on partial-birth abortion was made public and that ACOG supported both positions.  However, as stated above, there are serious discrepancies between Kagan’s statement in the hearing and the memos from her service in the White House. 

Kagan’s lobbying for changes to medical associations’ positions while in the White House is further evidenced by an email found in her White House documents, where Kagan clearly tried to change the position of another medical group, the American Medical Association (AMA).

When discussing whether the AMA could reverse its policy that there is not an identified situation in which partial-birth abortion is the only appropriate method of abortion, ethical concerns surround it, and that it should not be used unless it is absolutely necessary, Kagan stated: “We agreed to do a bit of thinking about whether we (in truth, HHS) could contribute to that effort [convincing the AMA to reverse their policy]. Chuck and I are meeting with the AG on Tuesday; Donna offered to send over some doctors this week (though we don’t know who or when) to give a medical briefing.”

In other words, Kagan was so opposed to the passage of a ban on partial-birth abortion, she hoped that ACOG and the AMA would suppress or modify their views and aggressively worked to make that happen.

Kagan may have dodged the issue today during Senator Hatch’s questioning, but she made a deliberate decision to advocate for partial-birth abortion in December of 1996, even to the point of ignoring science.  This is not the type of impassioned judgment we want a justice to possess on the bench.  Kagan’s judgment is deflected by passion as evidenced by her advocacy for a gruesome procedure medically unnecessary to protect a woman’s health.