In what is being called a potentially explosive scandal, recently-unearthed documents have revealed that U.S. Supreme Court nominee Elena Kagan authored key wording in a medical panel’s statement regarding partial-birth abortion that may have played a decisive role in the defeat of a ban on the procedure.
While debate was raging over a first attempt at a partial-birth abortion ban in 1996, the American College of Obstetricians and Gynecologists (ACOG) originally wrote that the group “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.”
Questioned by Sen. Orrin Hatch (R-Utah) during Senate confirmation hearings Wednesday, Kagan admitted her role in adding language, later adopted by the ACOG, that hedged the ACOG’s original declaration and stated that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
In a separate memo, Kagan, who was serving as a legal advisor to President Clinton at the time, had admitted that the ACOG’s original wording “would be a disaster” for the administration’s fight against the ban.
Kagan on Wednesday claimed that she rewrote the language so that the statement would more accurately reflect the ACOG’s thought. “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,” she said.
Sen. Lindsey Graham (R-SC), however, did not buy that answer, and pressed further.
“Somebody with your background and view of this issue, you were trying to change this and broaden it,” he said – a charge Kagan said was “not true.”
The U.S. Supreme Court would later refer to Kagan’s language as part of its reasoning in striking down a Nebraska ban on partial birth abortion, and the language was also used as prime fuel in the battle against the ban during the George W. Bush administration.
Shannen Coffin, the deputy assistant attorney general in charge of the defense of the federal Partial-Birth Abortion Ban Act during the Bush administration, called the language introduced by Kagan “one of the greatest evidentiary hurdles faced by Justice Department lawyers … in defending the federal ban.”
“When President Obama promised in his inaugural address to ‘restore science to its rightful place,’ he never explained what that rightful place would be,” wrote Coffin. “Documents recently released in connection with the Supreme Court nomination of Solicitor General Elena Kagan suggest an answer: wherever it can best be used to skew political debate and judicial outcomes.”