INVESTIGATING THE

CONFIRMATION TESTIMONY OF ELENA KAGAN BEFORE THE U.S. SENATE JUDICIARY COMMITTEE AND THE NEGATIVE lMPACT OF HERAMENDMENT OF THE JANUARY 1997 POLlCY STATEMENT OF

THE AMERICAN COLLEGE OF OBSTETRJCIANS & GYNECOLOGISTS (ACOG)

ON THE FEDERAL ADMINISTRATION OF JUSTICE AND THE U.S. SUPREME COURT

a Report of

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The Legislatiue Action Arm of Americans United for Lifo

655 15TH STREET N.W SUITE 410 WASHINGTON, ,QC 40'0'05

JULY 15, 2010

- U LA. - INVESTIGATING 'T'I-m CONFIRMATION OP' ELENA KAOAN

A WI~""""'" JULY15,2010

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Table of Contents

Page

I.

The Facts About Elena Kagan's Amendment to the January 1997 ACOG Policy Statement

2

n.

Elena Kagan's Senate Testimony

5

III.

There was No Medical Evidence to SUPIJort Elena Kagan's Amendment to the ACOG Policy Statement

8

IV.

Elena Kagan's Amendment Seriously Misled the Federal Courts, including the Justices of the U.S. Supreme Court, about the Relative Safety of the Partial-Birth Abortion Procedure between 1997a2007

13

Appendices

Appendix 1: References by Federal Courts to the ACQG Policy Statement or Kagan Amendment

Appendix 2: Transcript of Hatch-Kagan Exchange, June 30,2010 Appendix 3: Transcript of Coburn-Kagan Exchange, June 30, 2010 Appendix 4: Transcript of Ora ham-Kagan Exchange, June 30, 2010 Appendix 5: Kagan Memorandum of June 22,1996

Appendix 6: ACOG Draft Statement of Decem bel' 5; :1996 on "Intact D&X" Appendix 7; Kagan M emorandurn of December 14; 1996

Appendix 8: Kagan Amendment to ACOG Statement

Appendix 9: ACOG Final Polley Statement released January 12, 1997 Appendix 10:. Kagan Memorandum for the President of April 10, 1997 Appendix '11: William Saletan article in Slate.corn, july 3, 2010

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INVEST1GATING THE CONFIRMATION OF ~LENA KAGAN JULY 15; 2010

Americans United for Life Action calls for a Senate investigation into (1) the facts

surrounding Elena Kagan's amendment to the Policy Statement of the American College

of Obstetricians & Gynecologists (ACOG) on partial-birth abortion (D&X procedure),

(2) the discrepancies in Kagan's testimony before the U.S. Senate Judiciary Committee

on June 30; 2010, and (3) the distorting impact of Kagan's amendment on federal judicial

and Supreme Court consideration of state and federal prohibitions on partial-birth

abortion between 1997 and 2007.

Kagan's actions have raised unresolved questions.

Because of the lack of other reliable scientific data, the ACOG Policy Statement,

as Kagan amended it was relied upon by federal courts to invalidate the laws of 30 states

and an act of Congress. This seriously compromised the integrity of the U.S. federal

judicial process for more than a decade.

Kagan's willingness to amend and politicize, an impartial medical report by a

major medical orgaoizarion in order to affect legal and judicial events at the highest level

of the American judicial system, relating to a major piece of Congressional legislation,

raises serious questions.

1. The Fa.cts About .Elena Kagan's Amendment to the January 1997 ACOG Policy Statement.

During the summer of 1996, the Clinton White House evaluated the possibility of

a Congressional override vote of the President's veto of the Partial-Birth Abortion Act of

1997 enacted by Congress. Kagan, then an associate White House counsel, and several

other White House officials met with officials ]1.'0111 ACOG about its position.

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III fa June 22, 1996 memo, I Kagan reported to her White House superiors:

"Two important points emerged from the meeting. First) there are an exceedingly small number of partial-birth abortions that could meet the standard the President has articulated, 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; another option ... is equally safe .... Suffice it to say that we went through every circumstance imaginable ... and there just aren't many where use of the partial-birth abortion is the least risky, let alone the 'necessary,' approach."

On October 5-6,1996, a "select panel' of ACOG drafted a medical report on the

procedure ("Statement on Intact Dilation and Extraction;')? The select panel's Draft

stated: "However, a select panel convened by ACOG could identify no circumstances

under which [an intact dilation and extraction] would be the only option to save the life or

preserve the health of the woman.t"

Kagan reviewed the Draft after it was faxed to the White House on December 5,

1996.

In a December 14, 1996 memo," Kagan pronounced the Draft a "disaster."

Kagan wrote the following amendment:

"An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the lite or preserve the health of a woman, and a doctor should be allowed to make this deterrnination.:"

I See Appendix 5.

2 Anrerican College of Obstetricians and Gynecologists Executive Board, Statement on Intact Di lation and Extraction, draft.

] <lite Appendix 6. American College or Obstetricians and Gynecologists Executive Board; Statement on Intact Dilation and Extraction, draft.

'I See Appendix 7.

5 See Appendix 7. American College of Obstetricians and Gynecologists Executive Board, Statement on Intact Dilation and Extraction, draft, with notes by Elena Kagan (undated).

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The AeOG Executive Board, without consulting the "select panel," adopted Kagan's

amendment, (This is verified by federal court testimony outlined on p. 11 below.)

On January 12, 1997, ACOG released its final Policy Statement," with the

Kagan Amendment, which stated:

'~A select panel convened by 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, An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision."

On April 10; 1997, Kagan wrote a memo for President Clinton on partial-birth

abortion, in which she touted the veracity of the ACOG Policy Statement that she had

amended, without indicating her involvement to the President: "Perhaps the most reliable

opinion isfrom the American College ofObstetricians and Gynecologists which issued a

statement in January addressing the procedure" (emphasis added).7 Kagan quoted the

"no circumstances" sentence from the Policy Statement and then quoted the sentence she

had drafted.8 The President underlined this statement. 9

Kagan's intervention in the ACOG Statement was not an isolated incident, but

part of a pattern of behavior. Kagan also lobbied the American Medical. Association

(AMA) to change its medical policy on partial-birth abortion. Similar to ACOG's

original position, the AMA issued a policy stating that no situations had been identified

where partial-birth abortion was the only appropriate method of abortion and that ethical

(} f " •

. See Appendix 9.

7 ..• . .

. See Appendix 10.

H See Appendix 10,

!) ".' •

See Appendix 10.

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concerns surrounded it. In a White House email dated June 1, 1997, Kagan wrote that

she just came from a meeting that focused on "whether the AMA policy can be

reversed at its convention on June 23," Kagan then concluded: HWe agreed to do a bit

of thinking about whether we ... could contribute to that effort"

II. Elena Kagan 's Senate Testimony

In bel' Senate testimony on June 30, 2010, Kagan admitted writing the amendment

111 an exchange with Senator Orrin Hatch.

Kagan defended her

amendment to Senator I~ atch, stating that ACOG had informed her that intact dilation and

extraction "was In some circumstances the medically best procedure.v'"

During her testimony, Senator Tom Coburn asked: " .. .final question, it's your

testimony before this committee that you had no efforts at all to influence the decision by

ACOG in terms of whrt they ultimately put out on partial-birth abortion?" I I Kagan

testified: "[M]y only dealings with ACOG were about talking with them about how to

ensure that their statement expressed their views. I was a, you know, a staffer with no

medical knowledge.t'f

William Saletan, in a Saturday, July 3, 2010 article in Slate, noted that Kagan's

explanation "doesn't quite match her 1996 memo about her meeting with ACOG.,,13 As

Saletan concluded,

10 See Appendix 2. William Saletan When Kagan Played Doctor: Elena Kagan IS Partial-Birth Abortion Scandal, July 3, 2010, lit httljjlwww.slato.com/i.d/22594951p~lgenLlm!all/#p2.

II See Appendix 3.

12 See Appendix 3.

1:1 See Appendix II.

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"the participants [in the June 1996 meeting] doubted whether 'anything at all' would meet Clinton's standard-namely, a case in which intact D&X would be 'necessary to preserve the life of the woman or avert serious adverse consequences to her health.' So, Kagan's statement at her hearing-that ACOG had said intact D&X 'was in some circumstances tbe medically best procedure'considerably stretches the truth as she recorded it. It implies contrary to her contemporaneous notes, that ACOG had affirmed a specific need for the procedure." 14

While Kagan testified that she was "clarifying the second aspect of what [ACOG]

thought",IS Saletan called this explanation "bogus.v'" He pointed out that Kagan

"reframed" the ACOG conclusion and "changed its emphasis. 17 It was not a mere

clarification, As Saletan noted, Kagan altered both the political and the legal effects of

ACOG's statement: "With this clever phrasing, she obscured the truth: By reframing

ACOG's judgments; she altered their political effect as surely as if she had changed

Kagan's testimony is belied by her June 1996 memo, which stated that the

participants "went through every circumstance imaginable ... and there just aren't many

where use of the partial-birth abortion is the least risky, let alone 'necessary," and

questioning whether an intact dilation and extraction would be necessary in "any

[circumstance] at all." 19

Kagan's amendment to the ACOG Statement was politics, not science. Without

any medical data to support her amendment, Kagan deftly incorporated the "health

1,1 See Appendix II. IS See Appendix II. IG See Appendix 11.

i? See William Saletan, When Kagan rhwed Doc/or: Elena Kagan's Partial-Birth Abortion Scandal, July 3, 20 I 0, at http://www.slate.com/id/2259495/pagenum/all/#p2.

IS See Appendix 11.

19 Partial-Birth Abortion, merno, Elena Kagan to Jack Quinn & Kathy Wallman, June 22, 1996.

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exception" language from DoC! v, Bolton,20 which defined "health" for abortion law as

"all factors-physical, emotional, psychological; familial, and. the woman's age-

relevant to the well-being of the patient.ll21 Thus, "health" in abortion law means

"emotional well-being." If a "health" exception is required in any regulation of

abortion-parental consent, parental notice, partial-birth abortion, clinic regulations,

funding limitations, etc.-the regulation cannot be applied to the abortion provider if the

regulation would affect the "emotional well-being; of the woman. Kagan effectively

wrote this health exception into the ACOG policy statement, altering the emphasis of the

statement, as Saletan notes.

By virtue of Kagan's amendment, ACOO's policy was significantly changed from

D&X being not a necessary procedure to D&X possibly being necessary for "health"

reasons. HNo circumstances" under which partial-birth abortion "would be the only

option to ... preserve the health" became "may be the best or most appropriate in a

particular circumstance to ... preserve the health of a woman." This is a contradiction,

not a mere addition.

Kagan seems to claim that she was simply a scribe for changes coming from

ACOG.

But if Kagan met in June 1996 with AeOG representatives, and her amendment

came from ACOG, why did its draft statement in December 1996 not have the

language that Kagan subsequently added?

20410U.S. [79(1973). 2i ld. at 192.

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How could Kagan presume to alter the medical findings of ACOG's "select

panel" with such a substantive change?

And, if Kagan had had talks with ACOG officials in which tbey expressed

the views reflected in her amendment, why did Kagan react so sh'ongly that

Kagan's amendment significantly influenced both the Congressional debate and

judicial and Supreme Court consideration of the state prohibitions between 1997-2000

and the federal Partial-Birth Abortion Ban Act (PBABA) of2003 between 2003-2007.

III. There Was No Medical Evidence to Support Elena Kagan's Amendment to the ACOG Policy Statement.

Elena Kagan's amendment to ACOG's medical statement from its "select panel"

was not based on any medical evidence. Kagan's amendment: was particularly influential

and especially misleading precisely because the federal courts relied upon the ACOG

Policy Statement in the absence of any peer-reviewed medical studies showing the safety

QfD&X.

The trial record in the New York case, National Abortion Federation v.

Ashero/I.22 revealed that the ACOG "select panel" met for only two days to draft the organization's January 1997 policy statement on D&X that was editedby Kagan.23 he

panel did not identify or examine any studies regarding the safety of D&X and other

22330 F.Supp.zd 436 (S,D,NY 20(4),

23330 F,Supp.2d 436 (S.D,NY 2(04), .[ rial Record ("TR") 2235.

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abortion methods.i" Any written materials were reviewed OJ11y for "issue spotting," and

the panel Jailed to discuss D&X with any other physicians." The panel then sent a draft

statement to the ACOG Executive Board with the following conclusion: "it could idenl~fy

no circumstances under which [D&Y] would be {he only option to save the life or

preserve the health of theH!oman.,,26 Without consulting the (Janel, the ACOG

executive board unilaterally added the statement-which we now know was drafted by

Kagan=-that D&X "may be the best or most appropriate procedure in a particular

circumstance to save the life or preserve the health a/a woman .. .." he statement was

never approved by the select panel or voted upon by ACOG's membership."

The record testimony in the three federal cases (in Nebraska, New York and San

Francisco) challenging the Partial-Birth Abortion Ban Act of 2003 demonstrated that

there was no reliable evidence that any maternal or fetal medical condition required the

use of D&X~ or that D&X was safer than existing procedures. Experts testified that D&X

is in fact contraindicated in true emergency situations because the dilation of the cervix

takes too long." The New York federal court concluded: "In no case involving these or

other maternal health conditions could Plaintiffs point to a specific patient or actual

24 /d., TR 153-54,2457. 251d., TR2438·42.

26 ld., TR 153-54,2461 (emphasis added). One expert who tostlfled in the Nebraska partial-birth abortion case, Dr Sprang, testified that ACOG "couldn't come up with a single example where it would be .. .the best, most appropriate alternative to save the health of the mother." Carhart v. Ashcroft, 331 r:.Supp.2d 805 (D. Neb. 2004), TR 1098-1102.

2? u, TR 2460-62; id., TR 2221-22,2229.

28 Carhart v. Ashcroft, 331 r.Supp.2d 805, 934-35 (D. Neb. 2004), (TR) j 327, 1517-18.

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circumstance in which D&X was necessary to protect a woman's health.,,29 In contrast,

there was substantial and reliable evidence that there were well-established alternatives to

D&X (namely j eli lation & evacuation (D&E) and medical induction).

There was no reliable data that D&X was safer than existing procedures. No

published medical studies existed in 1996-97 to support the claim that D&X was

necessary or safer, and none existed at the time of the federal court trials in 2003~2004.

All evidence about the safety of D&X amounted 10 assertions of the intuitive safety of the

procedure from the few who performed them; 110 reliable empirical evidence was

presented, with the sole exception of one seriously flawed study by Stephen Chasen,

published after the federal court trials.

Several experts conceded the lack of any empirical studies. The plaintiffs)

experts could Identify no studies comparing blood loss or risk of in] ury from "bony parts"

between D&X and D&E?O The Government's experts also emphasized that no empirical

data existed. Even If it is generally true that the safety for each particular woman

depends on her Individual circumstancesi .. vhen two procedures are statistically similar in

terms ofrisk, there was no data indicating that D&X could be so compared because there

was no data showing that it is statistically similar in terms of risk.

The only peer-reviewed study addressing the' comparison of D&E and D&X

published before the Supreme Court's 2007 decision in Gonzales 1/, Carhart is the

Chasen study; an observational, retrospective cohort study that compared a group of

29330 F,Supp2d at 480.

~o Carhart, 331 [. .Supp.Zd at 928, 935.

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women who had D&E abortions (263) with a group that had D&X abortions (120) at or

beyond 20 weeks gestation." All were performed in the same hospital, not an outpatient

clinic,

The Chasen study has several limitations that rendered it unreliable for assessing

the relative safety of D&X and D&E .. First, there were so few patients that it was clear

that no conclusions could be reached with any statistical validity, Second, the authors did

not document: their follow-up procedure, preventing them from reliably documenting

complications. Third, the patients in the two groups were not randomized and were very

different in important characteristics: in age, in gestational duration of pregnancy at

which the procedures were done, and in the Indications for which the abortions were

performed. No regression analysis was employed to take account of these differences

and adjust for them, The authors did not identify the criteria for deciding which patient

would have what procedure; thus. the operators were inherently "biased" in determining

what procedures they would use, On the critical issue of subsequent pre-term birth

(PTB), the authors followed only 62 pregnant women (of 363 patients) who happened to

return to that hospital for prenatal care.

Chasen admitted, based on the data in his retrospective study, that (1) he could not

state that one technique is superior to the other (D&X v, D&E), and (2) that the major

complications that occurred in the D& ~ group could not have been avoided by doing a

D&X abortion. The Chasen study does not show any improvement in outcomes between

31 ST, Chasen et al., Dilation and Evacuation at > 01' = 20 Weeks: Comparison cf Operative Techniques, 190 AM, 1. OB, GYN, 1180 (2004),

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D&E and D&X. The district court in NAF concluded that "the Chasen Study itself found

no difference between D&X and D&E in procedure time or estimated blood toss .... ;;32

A follow-up study by Chasen et al., looking at obstetric outcomes after D&E 01'

D&X at more than 20 weeks gestation, was publ .. ished in 2005, using the previous dataset

but somehow finding twice as many prenatal patlents." No valid safety or pre-term birth

conclusions can be drawn from this study because the D&X data were excluded when

D&X was performed in the presence of premature pre-term ruptured membranes and/or

advanced cervical dilation.

In the absence 0 r reliable scientific data, the plainti Fls challenging the federal

Partial-Birth Abortion Ban Act relied on intuition. If intuition is to be considered,

however, intuition suggests multiple possible dangers from D&X: heightened risk of

placenta previa and pre-term birth (prematurity) in future pregnancies, heightened risk of

maternal laceration from crushing the fetal skull or puncturing the fetal neck. increased

risk of infection from extended dilation; and heightened risk of uterine trauma from

internal rotation (version) of the fetus during D&X,

The district court in the NA1< case concluded that expert witnesses "reasonably

and effectively refuted Plaintiffs' proffered bases for the opinion that D&X has safety

advantages over other second-trimester abortion proccdures.v'" The court did "not

believe that many of Plaintiffs' purported reasons for why D&X is medically necessary

J2 330 F,Supp,2d at 472.

D S.T, et al., Obstetric Outcomes After Surgical Abortion at (greater than (J/' equal to) 20 weeks' gestation, 193 AMER, j, On. GYN. 116.1 (2005),

3,1. 330 P,Supp,2d <It 479.

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are credible; rather they arc theoretical or false.;,,35 and found that the "Government's

experts, especially Dr. Clark, demonstrated that some of the Plaintiffs' reasons

necessitating D&X are incoherent; other reasons were shown to be merely theoretical.n36

In aoco, Justice Kennedy; dissenting in Stenberg v. Carhart, observed that "[11]0

studies support the contention that the D&X abortion method is safer than other abortion

methods.,,37 In 2006, U.S. Circuit Judge Straub concluded: "[1Jt is undisputed that no

peer-reviewed studies or data exists [sic] showing that D&X is either safe or safer than

other abortion procedures.r'"

No empirical data existed at the time of the Kagan Amendment, at the time of the

Supreme Court's decision in Stenberg v. Carhart, or at the time of the Supreme Court's

decision in Gonzales 11. Carhart in 2007, showing that D&X was safe, or safer, than

existing alternative methods of abortion.

IV. Kagan's Amendment Seriously Misled the Federal Courts, including the Justices

f tl U' S·; S .. ., C' . t ab . t tl . R· :.1·· tlv :. Safetv f the P' . tial-Birth Ab ·t' .

o Ie •• ) upremeonr, a on .IC ca I.C, _hey 0 . .hrL. ll. ,_. OJ_IOn

Procedure between 1997-2007.

The Kagan Amendment misled several federal courts between 1997-2007) and

eventually misled Supreme Court justices in both Stel1berg 11. Carhart In 2000 and

Gonzales v. Carhart in 2007., The following are a few of the instances of federal court

and Supreme Court reliance on the ACOG Policy Statement or the Kagan Amendment.

A morecomplete, though not necessarily exhaustive, list is included in: Appendix 1.

3.5 ld. at 480.

:1() Id. at: 479-80.

]7 Stenberg, 530 u.s. 91·4, 966.

,1~ National Abortion Federatlon v, Gonzales, 437 F.3d 278. 307 (2d Cir: 2006) (Straub, J., dissenting).

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Carhart v. Stenberg, 11 F. SUPo; 2d 1099 (D. Ncb. 1998):

"A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life 01' preserve the health or the woman. An intact D&X, however may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient. based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inapproprlate, ill advised, and dnnge~ous.j)39

"Dr. Stubblefield agrees with the January) 1997, statement of policy issued by the American College of Obstetricians and Gynecologists Executive Board on "intact dilatation and extraction" ... , which states that the intact D&X 'may be the best or most appropriate procedure' in some cases.',40

Stenberg l'. Carhart, 530 U.S. 914 (2000h

"The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X 'may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.,,,41

Justice Kennedy, dissenting in Stenberg li; Carltart:

"The Court's conclusion that the D&X is the safest method requites it to replace the words 'may be; with the word 'is' in the following sentence from ACOG's position statement: 'An intact D&X, however; may be the best or most appropriate procedure in a particular circumstance. ;;;42

:19 Carhart v, Stenberg, 1 1 f. Supp, 2e1 1099, I 105 11,10 (D. Neb. 1998) (bold in original) .

• 10 lei. at 1112.

<II Stenberg v, Carhart, 530 U.S. 914, 932-33 (2000) (internal cltations omitted) (quoting ACOG Statement, and further noting that "[wlith one exception, the federal trial courts that have heard expert evidence on the matter have reached similar factual conclusions" and citing these findings).

112 Stenberg v. Carhart, 530 U.S. 914,966 (2000) (Kennedy, J" dissenting) (internal citations omitted).

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Carltart IJ. Ashcroft. 321 F.Supp.2d 805 (D. Ncb. 20(4):

Judge Kopf emphasized the medical impartiality of the ACOG select panel:

"1 have summarized only the statements of the two leading national medical associationsthat is; the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG)-regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry. I did not summarize the policy views of these or other associations.,,43

"The panel indicated that when 'abortion is performed after 16 weeks, intact D&X is one method of terminating a pregnancy.' However it was unknown how many of these procedures are actually performed. The panel 'could identify no circumstances under which this procedure ... would be the only option to save the life or preserve the health of the woman. ~ On the other hand; the panel stated, '[a]n "intact D&X ... may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman .... ;' In October of 1999; Stanley Zinberg, M.D., Vice President of Clinical" Activities of ACOG, wrote the Senate. He said that 'there are rare occasions when Intact D&.X is the most appropriate procedurej.]' and '[i]n these instances, it is medically necessary.' On February 13,2002, ACOG reaffirmed its position. Although 'a select panel convened by ACOG could identity no circumstances under which intact D&X would be the only option to protect the life or health of a woman, intact D&X "may be the best ot most appropriate procedure in a particular circumstance to save the life or

" 44

preserve the health of a woman .... mn

"An ACOG Statement of Policy provides in part:

'A select panel convened by ACOG could identify no circumstances under which [the intact D&X], as deflned above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision, The potential exists that legislation prohibiting specific medical. practices, such as intact D&X; may outlaw techniques that are critical to

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the lives and health of American women. The intervention of legislative bodies into

medical decision making is inappropriate; ill advised, and dangerous. ",45

4] Carhart v. Ashcroft, 321 I' .Supp.2d 805, 823 (D. Neb. 20(4). '14 ld, at 844 (internal citations omitted).

'151d. at 977,

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"The process for developing the ACOG Statement on Intact Dilation and Extraction (Ex. 6) was consistent with the method used by AeOG in formulating other policy statements. The process began by carefully selecting task force members based on their expertise and viewpoint. These members were sent background materials for review. The members reviewed materials they were provided, reviewed other relevant sources of expertise in the area, and wrote and edited the policy as a committee. The proposed AeOG Statement on Intact Dilation and Extraction was then presented to the ACOG executive board by Dr. Fred Frigoletto, the president of ACOG at the time, and was discussed with the board members at that meeting. The board members had access to the materials reviewed by the task force and, as leaders within ACOG, had a broad range of expertise. Editorial concerns were discussed, and the final document was produced with the agreement of the board members ... Dr. Frigoletto chose task force members from diverse backgrounds. Factors considered in choosing the members included geography. gender, race, viewpoint. and expertisc.v"

"The meeting of the task force was held on October 5-6, 1996 ... At the task force meeting; the members reviewed the intact D&X procedure In. detail and together crafted language they believed represented expert opinion ... ,,47

"Before and during the task force meeting; neither AeOG 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 on Intact Dilation and Extraction.,,48

"In forming the task force's proposed AeOG Statement on Intact Dilation and. <,xtraction, the members relied on their own education and expertise, obstetrics and gynecology textbooks, CDC information, published information on the safety of D&E and the D&X subset of D&E; and information about the safety of available alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview or receive testimony from doctors, and did not draft and circulate individual position papers or statements for review and comment by other task force members.v'"

'16 ld. at 991·92 (internal citations and footnote om itted), 17

. ld. at 992 .

• IR ld.

4<J {do at 995.

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INVESTIGATING THE CONFIRMATION OF ELENA KAGAN JULY 15,2010

"The executive board edited the task force's proposed policy by adding, '[a]n intact D&X, however, may be the best or most appropriate procedure to save the life or preserve the health of a woman.' The additional phrasing was consistent with the task force's discllssion."so

"AeOG, the nation's leading medical organization in the field of obstetrics and gynecology, told Congress several times that the procedure should not be banned.'? r

Justice Ginshm:g. dissenting in (Jonzales v. Ctlrli.art.550 U.S. 124 (2007);

'".a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.v"

"But the congressional record includes ... statements 0'0111 nine professional associations; incl uding ACOG ... attesting that intact D&E carries meaningful safety ad vantages over

other methods.))53 -

Clearly, the Kagan Amendment distorted the evaluation of the lack of medical

data supporting the safety or necessity of the partial-birth abortion procedure, and

induced federal Judicial reliance on the amendment, in the absence of reliable medical

data; to invalidate an. act of Congress.

Conclusion

Elena Kagan's willingness to amend and politicize an impartial medical report by

a major medical organization to affect legal and judicial events at the highest level of the

American judicial system, relating to a major piece of Congressional legislation, clearly

demonstrates her disregard for the integrity of the legal and judicial process.

Because of the lack of reliable scientific data, the ACOG Policy Statement, as

Kagan amended it, was relied on by federal courts to invalidate the laws of 30 states and

30ld. at 997.

51 ld. at 10 II (internal citations omitted).

52 Gonzales v, Carhart; 550 U.S. 124, 170-71 (2007) (Ginsburg, J., dissenting),

5:11 i. at 176 (2007) (Ginsburg, 1., dissenting) (internal citations omitted). ("Congress in its findings ... chose to disregard the statements by ACOG and other medical organizations").

17

INVESTIGATING THE CONHRMATION OF ELENA KAGAN JULY 15,2010

an act of Congress. Kagan s disregard seriously compromised the integrity of the D.S.

federal judicial process for more than a decade.

In its April 2007 decision in Gonzales v, Carhart, 54 upholding the federal Partial-

Birth Abortion Ban Act, the Supreme Court held open the potential for an "as-applied"

challenge to the Act should a woman need to avoid the application of the law in a

particular medical circumstance, Since April 2007, no such case has ever been tiled.

$4550 U.S. [24 (2007),

18

Appendix 1

References by Federal Courts to the ACOG Policy Statement 01' Kagan Amendment

Carhart v. Stenberg. 11 F. Supp. 2d 1099 (D. Ncb. 1998):

"A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above; would be the only option to save the life 01' preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances C~Ul make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.":

"Dr, Stubblefield agrees with the January, 1997, statement of policy issued by the American College of Obstetricians and Gynecologists Executive Board 011 "intact dilatation and extraction" ... , which states that the intact D&X 'may be the best or most appropriate procedure' in some cases.,,2

Stenberg v. Carhart. 530 U.S. 914 (2000li

"The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X "rnay be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.t'"

"We cannot, however, read the American College of Obstetricians and Gynecologists panel's qualification (that it could not 'identify; a circumstance where D&X was the 'only' life- or health-preserving option) as if, according to Nebraska's argument ... , it denied the potential health-related need for D&X. That is because the College writes the following in its amici brief: 'Depending on the physician's skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances.?"

I Carhart v, Stenberg; 11 L Supp. 2d l099, 1105 I'; I 0 (D. Neb. 1998)(bold in original). 2Id. ar 1112.

:1 Stenberg v , Carhart, 530 U.S, 914,932-33 (2000) (internal citations omitted) (quoting ACOG Statement, and further noting that "[w]lth one exception, the federal trial courts that have heard ex pelt evidence On the matter have reached similar factual conclusions" and citing these findings).

4 lei. at 935.36.

1

Appendix 1

"The word 'necessary' in Casey's phrase 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother)" 505 U.S. at 879 (internal quotation marks omitted), cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (01' inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey's words' appropriate medical judgment' must embody the judicial need to tolerate responsible differences of medical opinion -- differences of a sort that the American Medical. Association and American College of Obstetricians and Gynecologists' statements together indicate are present here.5

Justice Kennedy, dissenting in Stenberg v. Carharf:

"The Court's conclusion that the D&X is the safest method requires lt to replace the words 'may be' with the word 'is' in the following sentence from ACOG's position statement: 'An intact D&X; however, may be the best or most appropriate procedure in a particular circumstance. ,;;6

Carhart v. Ashcroft, 287 F. Supp. 2£1 1015 (D. Neb. 2003):

"The Supreme Court; citing ... the considered opinion of the American Col lege of Obstetricians and Gynecologists. has found a very similar law unconstitutional because it banned 'partial-birth abortions' without the requisite exception for the preservation of the health of the woman. Stenberg v. Carhart, 530 US. 914, 930- 33 ... (2000).;;7

Carhart v. Ashcroft, 321 F,Supp.2d 805 (D. Neb. 2004):

"Still another doctor; who had served. 011 the committee of physicians designated by the American College of Obstetricians and Gynecologists CACOO) to look into this issue and who holds certifications in biomedical ethics) obstetrics and gynecology; and gynecologic oncology, Dr. Joanna M. Cain, testified that in the case 'of cancer of the placenta often diagnosed in the second trimester.' where 'the least amount of instrumentation possible of the uterine wall is desirablej.] .,; it is much safer for the woman t.o have an intact D&X to remove the molal' pregnancy.t'"

S hi. at 937.

6 Stenberg v. Carhart, 530 U.S. 914,966 (2000) (Kennedy, J" dissenting) (internal citations omitted). 7 Carhart v. Ashcroft, 287 F. Supp, 2d 10 15,1 016 (D. Neb. 2003).

8 Carhart v. Ashcroft, 321 F.Supp.2d 805, 809 (D. Neb. 2004) (finding unconstitutional the 2003 federal ban on partial-birth abortion).

2

Appendix 1

Judge Kopf emphasized the medical impartiality of the ACOG select panel:

"I have summarized only the statements of the two leading national medical associations= that is, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG)~l'egardil1g substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry, 1 did not summarize the policy views of these or other associations. ,,9

"The panel indicated that when 'abortion is performed after 16 weeks; intact D&X is one method of'terminating a pregnancy.' However, it was unknown how many of these procedures arc actually performed, The panel 'could identify no circumstances under which this procedure". would be the only option to save the life or preserve the health of the woman.' On the other hand; the panel stated,' [a]n "intact D&X ." may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman .... ,,; In October of 1999, Stanley Zinberg, M,D., Vice President of Clinical Activities of ACOG, wrote the Senate. He said that 'there are rare occasions when Intact D&X is the most appropriate procedurej.]' and' [i]11 these instances, it is medically necessary.' On February 13,2002, ACOG reaffirmed its position, Although 'a select panel convened by ACOG could identify no circumstances under which intact D&X would be the only option to protect the life or health of a woman, intact D&X "may be the best or most appropriate procedure in a particular circumstance to save the life 01' preserve the health of a woman .. ,,))' 10

"An ACOG Statement of Policy provides in part:

I A select panel convened by ACOG could identify no circumstances under which [the intact D&X], as defined above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best 01' most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous:" I I

9 Jd. at 823.

101d. at 844 (internal citations om ltted). Illd. at 977.

3

Appendix 1

"The process for developing the ACOG Statement on Intact Dilation and Extraction (Ex. 6) was consistent with the method used by ACOG in formulating other policy statements. The process began by carefully selecting task force members based on their expertise and viewpoint. These members were sent background materials for review. The members reviewed materials they were provided, reviewed other relevant sources of expertise in the area, and wrote and edited the policy as a committee, The proposed ACOG Statement on Intact Dilation and Extraction was then presented to the ACOG executive board by

Dr. Fred Frigoletto, the president of ACOG at the time, and was discussed with the board members at that meeting. The board members had access to the materials reviewed by the task force and, as leaders within ACOG, had a broad range of expertise. Editorial concerns were discussed, and the final document was produced with the agreement of the board members .... Dr. Frigoletto chose task force members from diverse backgrounds. Factors considered in choosing the members included geography, gender, race; viewpoint, and expertise.,,12

"The meeting of the task force was held on October 5-6, 1996 .... At the task. force meeting, the members reviewed the intact D&X procedure in detail and together crafted

language they believed represented expert opinion ... ." 13 .

"Before and during the task force meeting. 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 on Intact Dilation and Extraction."!"

"In forming the task force's proposed ACOO Statement on Intact Dilation. and Extraction, the members relied on their own education and expertise, obstetrics and gynecology textbooks; CDC information, published information on the safety of D&E and the D&X subset of D&E; and information about the safety of available alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview 01' receive testimony from doctors, and did not draft and circulate individual position papers or statements for review and comment by other task force rnembers.t'"

12!d. at 991-92 (internal citations and footnoto omitted). 13 ld. at 992.

14 let.

15 lei. at 995. 4

Appendix 1

"The proposed ACOG Statement on Intact Dilation and Extraction submitted by the task force concluded that it could identify no circumstances where the intact D&X was the only available option to save the life of the woman or preserve her health. The task force had discussed numerous circumstances where it may be the best procedure for the woman's life and health, and therefore stated that the decision should be left to the woman and her doctor. Exhibit 655 did not, however, specifically state that the intact D&X was sometimes the safest and best available procedure. As reflected in Exhibit 655, ACOG and the tusk force are strongly opposed to the intervention by legislative bodies in medical decision making between the patient and doctor. ACOG bell eves legislative intervention may have the unintended side effect of outlawing medical procedures that may be best for the woman's health and well-being, and in doing SO; may cause harm to wOmen."I!)

"The executive board edited the task force's proposed policy by adding, '[a]n intact D&X; however, may be the best or most appropriate procedure to save the life or preserve the health of a woman.' The additional phrasing was consistent with the task force's discussion."!"

"ACOG, the nation's leading medical organization in the field of obstetrics and gynecology, told Congress several times that the procedure should not be banned. ",18

Planned Parenthood Fed'n of Am. v. Ashcroft. 320 F. Surp. 2d 957 (N.D. Cal. 2004)~

"Moreover; all of the doctors who actually perform intact D&Es concluded that. . .intact D&Es remain the safest option for certain indi vidual women 1,.1I1d~r certain individual health circumstances, and are significantly safer f01' these women than other abortion techniques, and are thus medically necessary. See also, e,g., Cain Depo. at 205:14=210:16 CACOO policy reflecting same 11nding).;;19

"[Tjhree of the four government witnesses that testified on the subject recognized that there was no consensus regarding the procedure .. .see also Cain Depo, 37: 12-22; 220:14- 222:21; 234:20-235:12; Exh, 14 (noting that ACOG's Executive Board reaffirmed the group's January 1997 policy statement regarding "partial-birth abortion" and that it remains the policy of ACOG today).;;2o

!61d. at 997 (internal citations omitted). 17

- ld. at 997.

18/d. at LO 11 (internal citations omitted).

19 Planned Parenthood Fed'n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 100 I (N,D. Cal. 2004).

201d. at 1025·26. .

5

Appendix 1

"[One] specific argumentj] made by the State that the Stenberg Court rejected almost

entirely [was] ACOO's qualification of its statement that intact D&E 'may be the best

or most appropriate procedure' with the fact that AeOG 'could identify no circumstances under which [the intact D&E] procedure .. , would be the only option to save the life or preserve the health of the woman;' .,21

"The court, .. noted that' doctors often differ j 11 their estimation of comparati ve health risks and appropriate treatment.' Id. It, therefore, held that Casey requires 'the judicial need to tolerate differences of medical opinion;' lei. The Court noted that the division of medical opinion regarding the safety and propriety of the intact D&E procedure 'involved highly qualified knowledgeable experts on both sides of the issue' - division 'of a sort that [the AMA] and [ACOG]'s statements together indicate are present here.' Id.,,22

National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (S.D.N.Y .. 2004):

"ACOG's Executive Board issued a Policy Statement Regarding Intact Dilation and Extraction on January 12, 1997, that was included in the record of the hearing. According to the policy statement: I A select panel convened by ACOO could identify no circumstances under which [D&X] would be the only option to save the life or preserve the health of the woman. [A] ". D&X, however, may be the best 01' most appropriate procedure in a particular circumstance to save the life 01' preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision;' In a Fact Sheet on the policy statement, ACOG indicated among its reasons for opposing a ban on D&X that D&X may be the most appropriate abortion procedure when the woman has sepsis, and may decrease the risk of

. 11 . . d uteri ))23

Cel'VICa aceration an' uterine rupture ..

HACOG stated that although there may be alternatives to D&X to preserve maternal. life 01' health, there may be times when D&X is the best or the most appropriate procedure. ACOG further believed that only a physician, in consultation with a patient, should decide which abortion procedure a woman should undergo; The ACOG policy statement was not voted upon by its members; rather, its Executive Board adopted the policy based on the conclusions of a panel that considered the matter. [Footnote 11: "ACOG has an Executive Board with approximately twenty elected members who oversee ACOO's

21 lei. at 1008. 22 lei. at 1009.

2~ National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436,447 (S,D,N.Y., 2004) (internal citations and footnote omitted),

6

Appendix 1

activities and policies. In October 1996, the panel convened and submitted to the Executive Board a proposed policy statement which concluded that the panel could 'identify no circumstances under which [D&X] would be the only option to save the life or preserve the health of the woman,' but that 'notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor in consultation with the patient' based upon the woman's particular circumstances. The AeOG Executive Board edited the proposed policy statement to add; '[a]11 intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save a life or preserve the health of a woman ... and only the doctor in consultation with the patient based upon the woman's particular circumstances can make this decision. T,24

HAt trial in this matter, the Government contended that there was no forum in which ACOG's current policy on D&X was discussed 01' voted on by its entire membership. According to the Government, the final policy statement did not become available to ACOG's membership until after it was already approved by the Executive Board, and the panel that submitted the proposed policy statement to the Executive Board was not involved in any discussions about the board's changes. Therefore, the Government argues that it is questionable whether the AeOG policy statement accurately represents the views of its membership. The Executive Board reaffirmed its policy statement as recently as September 2000~ and it remains the policy of AeOG. [Footnote 12: Notably, the Supreme Court relied heavily on ACOG's policy statement in concluding that there existed 'responslble differences of medical opinion' as to the safety advantages of D&X. See Stenberg, 530 U.S. at 937, 120 S.Ct. 2597.],,25

"One of these groups, ACOG, has stated that D&X may be the most appropriate abortion procedure to protect a woman's health, but not the only safe procedure available. The twenty-member AeOG Executive Board approved the policy statement regarding D&X; its members never voted to approve the policy statement. Significantly, AeOG refused to appeal' through a representati ve at this trial. ,,26

"In fact, the Supreme Court in Stenberg singled-out the views of ACOG as the sort of qualified medical opinion that should be weighed in considering the safety ofD&X. See Stenberg, 530 U.S. at 937, 120 S.Ct. 2597 ('And Casey's words appropriate medical judgment must embody the judicial need to tolerate responsible differences of medical opinion-differences of a sort that the American Medical Association and the American

2,1 Jd. at 449·50 (internal citations omitted). 2S lei. at 450 (internal citations omitted).

26 Id. at 48 J -82.

7

Appendix 1

College of Obstetricians and Gynecologists' statements together indicate are present here. ').H27

"Likewise, Congress was unreasonable to conclude that there is 'no credible medical evidence that partial-birth abortions are ... safer than other procedures.' Act, § 2(14)(B), 117 Stat. at 1204, Congress had before it the same body of evidence that the Supreme Court deemed to amount to a 'significant body of medical authority [that] believes D&X may bring with it greater safety for some patients.' Stenberg, 530 U,S. at 937,120 S.Ct. 2597. Yet, Congress found this same body of evidence not credible, For example, despite the Court's conclusions in Stenberg, Congress discounted the ACOG policy statement. Compare id. (discussing views of ACOG in reasoning that a D&X offered safety advantages for some women); with Act, § 2(14)(B). 1] 7 Stat. at 1204 (finding no credible evidence was before it regarding the safety advantages ofD&X).H28

"Finally, Congress concluded that D&X is a disfavored medical procedure that is not embraced by the medical community, 'particularly among physicians who routinely

- - -

perform other abortion procedures.' The face of the congressional record rebuts this

finding. First, the record includes the statements of nine associations, including ACOG and APFIA, which opposed the ban because they believe that the procedure offers safety advantages and might be medically necessary in the presence of certain maternal-health conditions and fetal anomalies. (See; e.g., 149 Congo Rec, S 12921 (statement of

ACOG) .... ,,29

Carhal't V~ Gonzales, 413 F;3d 7n (8th Cit'. 2005):

"The lack of consensus also extends to medical organizations. The American Medical Association believes the banned procedures to bemedically unnecessary while ACOG believes these procedures can be the most appropriate in certain situations. [d. at 843, 997. The Supreme C01ll1 relied on the ACOG view in particular in Stenberg. 530 u.s. at 935-36.,;30

National Abortion Federation v. GOllzales; 437 F.3d 278 (2<1 Cir. 2006):

"Thus, the issue here, as it was in Stenberg, is whether there is 'substantial medical authority" supporting the proposition that prohibiting the D&X procedure "could endanger women's health.' 530 U.S. at 938; 120 S.Ct. 2597. Unquestionably such

27 ld. at 488. 28 lei. at 489.

29 Id. at 490 (internal citations omitted).

30 Carhart v. Gonzales, 413 F.3d 791,802 (8th cu. 2(05). 8

Appendix 1

'substantial medical authority' exists. As the District COUlt recounted, it is abundantly revealed in the evidence presented both to the trial court in this litigation and to the Congress in the hearings that preceded the Act, some of which is referenced in the margin. [Footnote 5: Among the evidence recounted by the District Court are the following: [Njine medical associations, including ACOG [American College of Obstetrics and Gynecology], CMA [California Medical Association], PRCE [Physicians for Reproductive Choice and Health], AMWA [American Medical Women's Association, Inc.], and APHA [American Public Health Association] opposed the Act because, they stated, D&X provides safety advantages for some women. NA.F, J, 330 FvSupp.Zd at 488,r31

"Congress concluded that D&X is a disfavored medical procedure that is not embraced by the medical community, 'particularly among physicians who routinely perform other abortion procedures,' The face of the congressional record rebuts this finding; First, the record includes the statements of nine associations; including ACOG and APHA, which opposed the ban because they believe that the procedure offers safety advantages and might be medically necessary in the presence of certain maternal-health conditions and fetal anomalies. (See, e.g., 149 Congo Rec, S 12921 (statement of ACOG)., .)",32

"Other sources before Congress confirmed these doctors' experience, indicating that there are 110 circumstances in which the D&X procedure would be necessary to preserve the health of the mother. See, e.g., '" see also 2003 House Hearings '.' at 146 (American Medical Association C"AMN') Fact Sheet) C' AMA's expert panel, which included a ACOG representative, could not find "any' identified circumstance where [D&X] was "the only appropriate alternative."). While the American College of Obstetricians and Gynecologists ("ACOG") contended that D&X 'may be the best or most appropriate procedure' in an unspecified 'particular circumstance,' its assertion was wholly speculative; < [a] select panel convened by 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.' 2003 House Hearings, supra, at 200 (ACOO Statement ofPolicy).,,33

HIt is undisputed that 110 peer-reviewed studies or data exists showing that D&X is either safe or safer than other abortion procedures. 2002 House Hearings, supra, at 8 (Statement of Dr, Kathi Aultman) (,There have been 110 peer reviewed controlled studies that have looked at the benefits and risks ofD&X as compared to D&E, Induction, Delivery, or CSection, We do not have adequate data on its mortality or morbidity. '); id. at 244 (ACOG Policy Statement Regarding Intact Dilation and Extraction) ('ACOG is unaware .of any comparative maternal morbidity studies specifically evaluating Intact D&E procedures

31 National Abortion Federation v, Gonzales, 437 F;3d 278. 285 (2e1 Gil', 2006), 32 ld. at 285 (inrernal citations omitted),

33 Jd. at 306,

9

Appendix 1

with other methods of abortion. '): see also H.R. Rep. No. 1 08~58, at 16 n.80 (2003) (noting that ACOG's president acknowledged that' [tjhere are no data to say that one of

the procedures is safer than the other,).,,34· .

Planned Parenthood Fed'll of Am. v. Gomales. 435 F.3d 1163 (9th Cit'. 2006):

"According to the American College of Obstetricians and Gynecologists ("ACOG"), the safety advantages offered by intact D&E mean that in certain circumstances it 'may be the best or most appropriate procedure ... to save the life or preserve the health of a woman.' 1135

"Although Congress found that 'raJ moral, medical; and ethical consensus exists that the practice of performing a partial-birth abortion ... is never medically necessary,' that finding is directly belied by another of Congress's findings and by the record that Congress developed in support of the legislation. The evidence of the lack of medical consensus is replete throughout that record and is confirmed in a significant statutory finding. As the district court pointed out, 'Congress'[s] very findings contradict its assertion that there is a consensus. Congress subsequently noted in its findings that "a prominent medical association," the AMA, concluded that "there is no consensus among obstetricians about" the use of intact D&E.' The district COUlt also noted that 'Congress ... had before it a joint statement from the AMA and ACOG, the two largest medical organizations taking positions on the issue, which recognized the disagreement among and within the two organizations. ",36

Justice Ginsburg. dissenting in Gonzales v. Carhart. 550 U.S. 124 (2(07):

''. " a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.v'"

"But the congressional record includes ... statements from nine professional associations, including ACOG ... attesting that intact D&E carries meaningful safety advantages over other mcthods.v"

34 ld. at 307.

35 Planned Parenthood Ped'n of Am. v. Gonzales, 435 F.3d 1163, 1168 (9th Cir, 2006) (footnote omitted). 36 lei. at 1174 (internal citations omitted) (based 011 the AMA/ ACOG joint statement)

37 Gonzales v. Carhart, 550 U.S. 124, 170-71 (2007) (Ginsburg, .I" dissenting).

38 Id. at 176 (Ginsburg, J., dissenting) (internal citations omitted) ("Congress in its findings ... chose to disregard the statements by ACOGand other medical organizations").

10

Appendix 2

Transcript of Senator Orrin Hatch (R-UT) questioning Elena Kagan on PBA during her Supreme Court confirmation hearings

Senator Hatch: "When Congress debated the ban on partial-birth abortion! one issue was whether this particularly gruesome abortion method was medically necessary. AeOG is a natural source of medical opinion on this subject. According to documents we received, you wrote a memo to your superiors in the Clinton WH about this. You noted that ACOG was considering a statement that its experts panel found no circumstances under which PBA was the only option for saving the life or preserving the health of the woman. You wrote, 'this of course would be disaster.' That's something that does bother me b/c it would be a disaster; you wrote, because ACOG opposed the ban on partial-birth abortion. If anyone ever found out, and you wrote that it could leak even if ACOG did not officially release its original statement, it could have negative political consequences. So you drafted alternative language that would say that PBA 'may be the best and most appropriate procedure in particular circumstances to save the life or preserve the health of the woman.' Now that's a very different spin. And obviously a more politically useful spin, The ACOG executive board copied your language verbatim into its final statement. Your language played an enormous role in both legal and political fights over banning PBA. The Supreme Court relied on that when striking down the Nebraska ban in Stenberg v. Carhart. Now I'm really stunned by what appears to be a. real politicization of science. The political objective of keeping PEA legal appears to have trumped what a medical organization originally wrote when left to its own scientific inquiry and that it had concluded. Did you write that memo?

Elena Kagan: "Senator; with respect, I don't think that that's what happened."

Hatch: "I'm happy to have that clarified. That's my question; did you write that memo?"

Kagan: "I'm sorry .. "the memo which is ... "

Hatch: "The memo that basically caused them to go back to the language of 'medically necessary' '" that was the big issue to begin with?"

Kagan: "Well, yes I've seen the document. .. "

Hatch: "But did you write it?"

Kagan: "The document is certainly in my handwriting. I don't know whether the document was a product of a conversation with them. If I could just go back, Senator 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 the course of the period of time when this statute was being considered, actually twice, to get him absolutely the best

1

Appendix 2

medical evidence on this subject possible. And this wasn't easy because as everyone in

Congress knows different people said different things about this everyone 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. AeOG had an interest in this statute and ACOG had views about the statute. What ACOG thought and always conveyed to us was two things. What ACOG thought was 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 risks attached to it in terms of preventing harm to the women's health. And so we knew that ACOG thought both ofthese things. We informed President Clinton of that fact. There did come a time where 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 draft.

Hatch: "My time is about up ... let me ask that question again, did you write 'this of course would be a disaster'?"

Kagan: "The ... the ... "

Hatch: "It's in your handwriting ... you didn't get that information from this ... ';

Kagan: "No, no, no, you're exactly right, you're exactly right. I'm sorry ... .I didn't realize you were

refe ring ... "

Hatch: "That's what I wanted to know ... "

Kagan: "No, no, that's exactly right. And ... and the disaster would be if the statement did not accurately reflect all of what ACOG thought. Both ... 1 mean there were two parts of what ACOG thought. .. And ... uhh ... uhhh ... 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 that 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. Umrnm .... 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 de me 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: "Well, I'll tell you this bothers me a lot because I know there are plenty of doctors in ACOG who did not believe that PBA was an essential procedure and who believed it is really a brutal procedure. And it was a constant conflict there. And as you

2

Appendix 2

know, many in Congress came to the conclusion that it was a brutal procedure too that was really unjustified. That bothers me that you intervened in that particular area in that way. Well, that's all I'll say about it hut I just want you to be aware that that bothers me,"

Kagan: "Senator 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 that 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 any statements that we were aware of to make sure that that information was accurately conveyed to the American public."

Hatch: \~One, of the things 1 did as an attorney was to represent doctors, including some OB=GYNs. I have a lot of experience with them. I hardly ever met anybody who thought that that was a fair or good procedure. But, be that as it may, I just want you to know I'm troubled by it even though I care a great deal 11)1' you and respect you."

3

Appendix 3

Transcript of Senator Tom A. Coburn (R-OK) questioning Elena. Kagan on PBA during her Supreme Court confirmation hen rings

Senator Coburn: HIt - it's your testimony before this committee that you had no efforts at all to influence the decision by ACOG in terms of what they ultimately put out on partial birth abortion?"

Elena Kagan: "That my only dealings with ACOG were about, uh, talking with them about how to ensure that their statement expressed their views. I was a - you know - a, a staffer with no medical knowledge. I would not have presumed to, nor would ACOG have thought it was, uh, relevant for me to ... ;;

Coburn: "But, but there - but you were part, or you, at least you acknowledge being a part of the people who developed. the four options for President Clinton?"

Kagan: "Yes, I - I definitely, urn, participated in discussion of this issue,"

Coburn: "And you referenced that that was 4101.11' memo," correct, in other memos to the President'?'

Kagan: "Yes, I mean, I, I -I definitely participated as an aide in trying to implement the President's views on this issue."

Coburn: "And you were concerned with their original language, that is true?"

K . "Uh I I ))

_ngnn. .. .. w- w- ...

Coburn: "ACOG's original language, you were concerned with it?"

Kagan: "I was concerned ... "

Coburn: "Problematic, .. "

Kagan: "I was concerned that that language did not adequ - did not accurately - reflect, uh, what ACOG's views, 1.Ih; were and what they had expressed to us about their views."

Coburn: ~~Yeah, their original language, having somebody that's, being somebody that's delivered thousands of babies, was absolutely accurate. Uh, their second language was not accurate. And I would think that the vast majority of those who have been through my experience would agree with that."

1

Appendix 4

Transcript of Senator Lindsey Graham (R-SC) questioning Elena Kagan on PBA during her Supreme Court confirmation hearings

Senator Graham! "Now there is another Court decision called Roe v, Wade that's being changed over time ... being interpreted differently over time. The Court basically held that before viability} the right to have an abortion was of a state- imposed limitation 011 abortion was almost non-existent. After viability, it was sort of a balancing test. Is that a general statement of Roe v, Wade over time? There's a difference between viability and post-viability in the eyes of the Court."

Elena Kagan: "As I understand the law after Casey, it's that after viability, the State can regulate as it pleases} except for situations where the woman's life or health interests are at issue. Before viability, the question is whether there is an undue burden 011 the woman's ability to have an abortion,"

Graham: "Is it fair for the Court to consider scientific changes when a fetus becomes viable as medical science evolves?"

Kagan: "Senator Graham, I do think that in every area that it is fair to consider scientific changes, I've talked in the past about how different forms of technology influence the evolution ofthe Court's 4tll Amendment jurisprudence."

Graham: "I'm glad to hear you say that because just as it would have been wrong to not consider the changes of how society had evolved versus segregation of young children based on race, I hope the Court would consider the modern concept of viability and the 21 st Century and whatever protection you could give the unborn would be much appreciated on my part by considering science and not your personal feelings because I think this is appropriate for the COUIt to do so,"

Graham: "Now you were an advocate.. .you were a lay wer who played an advocate role in the Clinton administration regarding formulation of policy, is that correct?"

Kagan: "I was two things in the Clinton administration. I was a lawyer for about half the time and I was a policy person for about half the time."

Graham: "Okay, well, when it came to the partial-birth abortion debate, there is a memo that we have here that talks about if certain phrases were used by [ACOG], as I understand it they were going to issue a statement that you thought would be a disaster, and you wanted to get the full statement in to place-was that because you were worried that if you didn't get what you wanted in place the court might seize upon that statement and make a different ruling based on science?"

Kagan: "No Sir, it was not. .. I mean my ... this was ... "

Graham.t'Well Miss Kagan, I'm shocked that you say that because ifI believe the way you do that's exactly what I would want it If I really did believe that partial-birth abortion as being

1

Appendix 4

proposed was too restrictive and I think you honestly believed that ... that you wanted to have the broadest definition possible when it came to partial-birth abortion.;; to allow more cases rather than less. ,. that I would have been motivated to get the language most favorable to me, And are you saying you weren't motivated to do that?"

Kagan: "Senator, I was working for a president who had clear views on this subject.,;"

Graham: "But you were trying to take him to an area where he even felt a bit uncomfortable. You were advocating, from what I can tell, a broader view of how partial-birth abortion would be interpreted. That when you met with the professional community-the doctors-they informed you early on in a private meeting, according to the record we have, that there. would be very few cases where an abortion would be allowed under the way this thing is written. And somebody with your background and your view of this issue, to me that seemed disturbing and that you were trying to change that and broaden it. Is that not true?"

Kagan: "With respect, Senator, it's not true. I had no agenda with respect to this issue., ,I was trying to.."

Graham: "Wait a minute ... I certainly have an agenda when it comes to an abortion, I respect the courts but I am trying to push the rights of the unborn in a respectful way. You can be prOa choice and be just as patriotic as I am ... y0\1 can be just as religious as anyone I know, but that's the point here. It is okay as an advocate to haw an agenda. I think Alito and Roberts had an agenda, They were working for it conservative president who was pushing conservative policies, So it just is a bit disturbing that you, quite frankly, say you don't have an agenda when you should have had. If I'm going to hire you to be my lawyer, I want you to have my agenda=-I want it to be my agenda,"

Kagan: '~I was trying to implement the agenda of the United States president whom I worked for, ,.')

Graham: "So you did have a personal belief that partial-birth abortion as proposed was too restrictive on a woman's right to choose?"

Kagan: "I was at all times trying to ensure that President Clinton's views and objectives with respect to this issue were carried forward.. .and President Clinton had strong views on this

'. "

Issue .. "

Graham: "But here's the difference between a lawyer and a policy person in a political shop: I just want to try my best to understand ... it's okay if you did.v.I expect that presidents are going to hire talented, intellectually gifted people who think like they do that will push the envelope when it comes to the law, And the record is replete here on this issue and others that you were pushing the envelope in terms of the left side of the aisle. 1 think the record was replete with Alito and Roberts that they were pu.shing the envelope on the other side. And that may make you feel uncomfortable ... 1 hope it doesn't. Ijust believe it to be true and you don't agree with me there,"

- -

2

Appendix 4

Kagan: "Senator Graham, the two of us have agreed on many things over the course of this hearing. But we don't agree 011 this. What I tried to do was to implement the objectives of the President on this issue. At the same time, to provide the president with the best legal

advice ... straight objective as I could. And, when I became a policy person, to enforce and to ensure that his policy views were carried out."

Graham: "I just quite frankly am surprised to hear that because if I believed the way you did and I had the opportunity to serve at that level I would do everything I could to push the law in my direction in way that was ethical. And I didn't see anything you did that was unethical. I did see an effort on your part to push the law in a direction consistent I think with the Clinton administration and your political beliefs, which is absolutely fine."

3

r

j .~,' I'

T":', ~ )

THE WHITEHOUSE.

WASHINGTON June 22,. 1996

MEMORANDUM FOR JACK QUINN KATHY WALLMAN

FROM:

SUBJECT:

ELENA KAGAN ~ ~ARTIAL BIRTH ABORTION

1. Override votes on the parti<lll-birth veto az e scheduled . for mid-July ~n the House (where a 2/3 vote is probable) and mtdSeptember in the Senate (where a 2/3 vote is very unlikely). The idea, of course, is to stretch out tne issue. over as many months as possib~e. I am attaching materials put out by the Catholic Church indicating what it will do during these months. At a recent meeting of the White House "abortion team" (sans George), it was decided (assuming George signs off) (1) to send the ONe and Re-Elect the President's j~page letter and a revamped set of talking points, ~or distribution as they think appropriate; and (2) to send to religious and regional p~ess, around the time of the July override v6te, a 750-word op-ed, with Secretary Shalala as possible signatory. I was tasked with the job of doing the talking points and Dp-~dr which I will send to you.

2. Melanne, Todd, Jennifer Kleinl John Hart, and SOmeone from Betsy Myersls office met a few days ago with the former Pre$ident and the current chief lobbyist for the American College of Obstetrics and Gynecology (ACOG). For many months, the folk~ at ACOG had been unwilling to speak with us about the medical issues surrounding the partial birth ban, but Marilyn Yeager convinced them to do so, and this meeting was the result. It ~as

something of a revel.ation. -

Two important points emerged from the meeting. first! there are an exceedingly small number of partial birth abortions that CQuld meet the standard the President has art.iculated. In the vast majority of cases, selection of the partial birth procedure is not nscessary to avert serious adverse consequences to a woman's health; anothe~ option -- whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term -- is equally safe .. I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable -- post- and pre-viability, assu~ing malformed fetuses, assuming other medical cond.i, t Lons , etc. ,etc .. -- and there just aren't m~ny where use of the partial-birth abortion is the least risky; -let alone the "necessary, 'I approach. No one should worry about being able to drive a truck through the Presidentls proposed exception; the real issue is whether anything at all can get throu~h it.

r

DEC- 5-96 THU 16:17

AOOG GOVT RELATIONS

FAX NO, 202 488 3985

p, 03

... €ONJ:1'JDENn~OT rmM, DO NOT COPY, DO NOT DISTRIBUTE

STA nMEN'I' ON INTACT DILATATION AND EXTRACTION

The debate regarding lewslation to prohibit {t method of' abortion, :;uch M the lcgi:datkm banning l'p,u,tial birth sbcrticn," at\d {ibrtUn sucki.ng;nbortion~/' hall prompted qU0stiona res"udins t.hose procedures. It is diffimdt to rC$pot)d to these questions because the descriptions are vague and do not d,,\ineata a specific procedure recog.ni:;;:ed in the medical literature. Moreover, the definitions could be interpreted to include elements of many recognized abortion and operative obstetric techniques.

The American College of Obstetrlclans and Gynecologists (ACOG) believes the intent of stich legislative proposals is to prohibit ii: procedure referred to as "Intact Dilatation and Extra.cti?li" (Intact D &; X), Thls procedure has been d.escribed as containing all of the following four elements:

1.. deliberate dilatation of the o~rvix, ui;unlty ever B sequenee of days; 2, ~nstn!niEmtaJ conversion ofthe fetus toa footlins breech;

3. breech extraction ofthe body excepting the head; Dnd"·

4. partial evacuation of the Intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise, intact fetus.

Because these elements are part of common obstetric techniques, it must be emphasized that unless all four elements are present in sequence, the procedure is not an intact D & X.

Abortion intends to terminate a pregnancy white preserving the tife and health of the mother, Where abortion is l~gal afb::l' 16 weeks, Intact D & X is one method of tennina.ting a pregnlUlGY, The physician, in consultation with the patloltt, must choose the moat appropriate method baaed upon the pattent'~ individual circumstances.

According to the Centers for Disease Control and Prevention (CDC) only 5.3% of abortions performed in the United Stl\t$8 in 1993, the most recent data available, were performed after the 16th week ofpregnanoy, Data show that second trimester transvaglns! instrumental abortion ie a safe procedure, The CDC does not collect data on the specific method of abortion, so it is unknown how many of this 5.3% were performed using intact D &. X.

Terminating II pregnancy is indicated in some circumstances to save the life OJ;' preserve the health of the mother. Intact D & X is one of the methods evailable in some of these situation!!, However, iii. a¢leot panel convened by ACOG OQutd identitY no eircumatances under which this procedure, as clefined above. would be the only option to gaVe the tife or preserve the health of the woman. Notwithstandlng this concluslon, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular elrcumstances. The potential exists that legislation prohibiting specific medical practices, sueh as inlaL'1;·D &' X, may outlaw techniques that arc critical to the ltves and health of American women. The intervention of legislative bodies into medical decision making is Inappropriate, ill advised, and potentially dangerous,

DETERMINED TO BE AN ADMINISTRATIVE MARKING INITIALS:.&!? DATE: *te/jO .

TH E WH ITE HOUS E:

WASH INGTON

December 14,1996

MEMORANDUM FOR JACK QUINN KATHY WALLMAN

ELENA KAGAN f)U

FROM;

SUBJECT:

PARTIAL~BIRTH ABORTION

Some news on the partial-birth abortion front (especially apropos in light of the . President's remarks on Friday):

1. Todd Stern just discovered that the American College of Obstetricians and Gynecologists CACOG) is thinking about issuing a statement (attached) that includes the following sentence: "[A] select panel convened by ACOG 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." This, of course; would be disaster -- not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether AeOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public. (The AMA last week decided to continue to take no position on the partial-birth issue.)

2. Sen. Daschle's staff is working on a legislative proposal that would prohibit all postviability abortions; with a tight exception for life and health. Note that this proposal applies to all post-viability abortions; not just to partial-birth abortions, Note also, however, that it applies to D.Q pre-viability abortions, even if they are partial-birth. Daschle's staff may use our language to define the health exception Cseriousadvetse health consequences"); they may try. however, to do something that sounds even stricter.

Daschle's staff hopes that this proposal will provide cover for pro-choice Senators (who can be expected to support it) and that it will refocus the debate from the partial-birth procedure to late-term abortions generally. I think the pro-lifers will not give up the partial-birth focus: (1) the politics of it have become too good; (2) it gives them a wedge into pre-viability abortions; and (3) it points the way toward future campaigns against other-abortion procedures. They will point out that Daschle's proposal does nothing to stop pre-viability partial-birth abortions (recall that many of these abortions are done between 20 and 24 weeks) ~. and that it is inadequate for this reason, Of course, they may respond to Daschle' s proposal by ~_Q supporting a ban on postviability abortions generally.

Given-the President's prior positions and statements, he of course should support the Daschle proposal. He also should continue to support a ban on partial-birth abortions (including pre-viability partial-birth abortions), so long as there is an adequate health exception.

. .

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CONFIDENTIAL; NOT FINAL, DO NOT COPY, DO NOT DISTRIBUTE

STATEMENT ON INTACT Dfi,ATATION AND EXTRACTION ,

The debate regarding legislation to prohibit ,1.\ method of abortion, sucb as the legislation banning "partial birth abortion," and "brain sucking abortions;" has prompted questions regarding these procedures. It is difficult to respond to these questions because the descriptions are vague and do not delineate a speclflc procedure recognized in the medical literature, Moreover) the definitions could be interpreted to include elements of many recognized abortion and operative obstetric . techniques,

The American College of Obstetricians and Gynecologists (AGOG) believes the intent of such legislative proposals is to prohibit a procedure referred to as "Intact Dilatation and Extraction" (Intact 0 & X). T.h!s .gr"ocedute has been described as containing all of the following four

elements: '.. --.-

1. deliberate dilatation of the cervix, usually over a sequence of days;

2. instrumental conversion of the fetus to a footling breech;

3. breech extraction of the body excepting the head; and

4, partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Because these elements are part ofoommon obstetric techniques, it must be emphasized that unless all four elements are present in sequence, the procedure is not an intact D & X.

Abortion j!)tend.s..to tenninate a pregnancy while preserving the life and health of the mother. Where abortion is legal after 16 weeks, intact D & X is one- method of terminating a pregnancy, The physician; in consultation with the patient, must choose the most appropriate method based upon the patient' s individual circumstances.

According to the Centers for Disease Control and Prevention (CDC) only 5,3% of abortions performed in the United States in 1993, the most recent data available, were performed after the 16th week of pregnancy, Data show that second trimester transvaginal instrumental abortion is a safe procedure. The CDC does not collect data on the specific method of abortion, so it is unknown how many of'this 5.3% were performed using intact D &. X.

Terminatlng a pregnancy is lndlcated in some circumstances to save the life or preserve the health of the mother, Intact D & X is one of the methods available in some of these situations, }Jewe-vwa select panel convened by ACOG could identifY no circumstances under which this procedure, as defined above; would be the ~ option to save the life or preserve the health of the woman, N&tw.ith&~!'ldin~~~ ACOG strongly believes that decisions about medical treatm t must be made by the doctor, in consultation with the patient, based upon the woman's patti lar circumstances, The potential exists that legislation prohibiting specific medical pracd s, such as intact D & X, may outlaw techniques that are critical to the lives and health of Am. "can women. The intervention of legislative bodies into medical decision making is inappropria ,ill advised, and potentially dangerous,

f\ppeWD \'1\, 9 JAN-14-97 rUE 14:l 0

~~ "II

AGOG GOVT RELATIONS

FAX NO, 202 488 3885

P, 02

STATEMENT ON INTACT DILATATION AND EXTRACTION

The d~batc rl(:gw-dinB IcglfllQ.uQn toprohlbit Q method of tiborUon) aueh aD the lesiclntion barminy: '!partial birth abortion/' and "brain sucking abortions," has prompted questions regarding these procedures. It is difficult to respond to these questions beoause the descriptions are v ague and do not delineate a specific procedure recognized in the medice1litemture. Moreover, the delmitions could be interpreted to include elements of many recognized abortion. and operative obstetric techniques.

The American College of Obstetricians PAd Gynecologists (ACOG) believesthe intent. of such legislative proposals is to prohibit a procedure referred to as "Intact Dilatation and Extractiont• (Intact D &}{); This procedure has been described as containing all of the following four elements:

1. deliberate dilatation of the cervix! usually over II. sequence of days;

2. instrumental conversion oftbe fetus to a footling bn;ech;

3. breech extraction of the body excepting the head; and

4. partial evacuation of the intracraaiel contents of a living fetus to effect vaginal delivery of a dead. but otherwise intact fetus.

BeeausethestJ elements are part ot established obstetricteclmiques, it must be emphasized that unless all four elements are present in sequence, the procedure is- not au intact '0 &. X.

Abortion intends to terminate a pregnancy while preserving the life and health of the mother. 'Wh' . abortion is' . manned nft.et -16 wee, h~ t tact D· &' X· . th 'd· f' t - ' • tino a

en . p ~ . _ _ A.:l, In~. . IS one me.o 0 ennlllll ""

pregnancy. The physician, in consultation witb the patient, must choose the most appropriate method based upon. the pati~nt's individual circumstances.

Acoordins to the Centers fer Disease Control and Prevention (CDC), only 5.3% of abo.ttioDS perfol."ltled In the United States in 1993, the most recent data available, were performed after the 16th week of pregnancy. A preliminary figure published by the CDC for 1994 is 5.6ll/0. The CDC does not collect data on the specific method of abortion; so it is unknown how many of these were performed using intact D .& X. Other data show that seecnd trimester tl'8lLSV8Sinal instrumental abortion is a safe procedure.

continued ....

The American College of Obstetricians and Gynecologists 409 ~2th Stmt, SW, PO Box 96920;. WashillgtQ~ DC 20090-6920 TclephontZ02 638 SS77

f\\1~tN~\'f. q

JAN-14~97 TUE 14:11

\it ,; ,'~

AOOG GOVTRELATIONS

FAX NO, 202 488 3985

Pi 03

., .

STATEMENT ON INTACT nD..ATAnON AND EXTRACTION (continued) Page Two

T enni.natihg a pregnancy is performed. in some circumstanoes to save the life or preserve the health of the mother. Intac.t D &. X is one of the methods available in some of these situations. A selectpanel convened by ACOG could identify no oircumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor. in ~onsultation witbthe patient, based. upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D &. X, may outlaw tec.hniqueS that are critical to the lives and health of Americar; women. The iDtervention of legislative bodies mto medical decision makiDg is IDappropria.te, ill advued, and dangerous.

Approved by the Executive Board January 12, 1997

fHt '1A~SiDENl' HAS SEEN ""1)1'.11,,.,

THE: WH ITE: HOUSE

WASH I NO!ON

'97 APR 11 PMlI:OS

April 10, 1997

MEMORANDUM: ,fOR THE ~SIDENT

~;:~~t

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You have asked whether the so-called partial-birth procedure is ever necessary to save the lift;: of b.._ a woman or avert serious harm to her health, Considerable medica] uncertainty surrounds this 45 question. The doctors of the women you met with believed the procedure was necessary to

~prevent serious injury, and other doctors have said that the procedure, in certain circumstances, is

~or may be the safest one to use, Still other doctors have disputed that health considerations ever demand use of the procedure .

• - ••••• ' •• 'i ~ • jI~' 1.-\..1. Of' \. \'J'I!l~. ,,.ro·.',. ,v '. ,"", .. ,' ,', ;;" ,- ',. I .' " '.~ " ,., ~ '.r" ~ ,,, ''1''_

. .

FROM:

John Hilley ~\...._ \~\\?-) Elena Kagnn .

Tracey Thornton

PHOTOCOPY w~c HANDWRITING

SUBJECT:

"ParlialeBirth" Abortion

ALTERNATIVES TO THIS PROCEDURE

Perhaps the most reliable opinion is from the American College of Obstetricians and Gynecologists CACOG). which issued a statement in January addressing the procedure. (ACOG~ like most other medical groups, calls the procedure an intact dilatation and extraction or intact

t- \ D&X.) According to the statement, "A select panel convened b - _;_._ 'denti no

, circumstances under which this procedure wou . e t -e _ ._ option to save the life or preserve the health of the woman." (Emphasis in original.) The statement then went on: "An intact D&X, however, may be the best or most appropriate procedure ina particular circumstafl&e tg..save the

\1·. life or reserv.t~. h~ of • :,",cDlan, "Ila o11l2'._llie acctcr,.!." .on.~lt'llo. with tile atient, based u on the womanJs partIcular Circumstances can rna e t ~ eCIS_!Qn:' In sum, doctors have other oehons, bun lose otner~optionsmai e more nsk_Y or otherwise more undesirable from a medical

~_a.n~~. ... .. . .

Other groups of doctors, with a greater stake in the abortion controversy, have taken more definitive positions. The Society of Physicians for Reproductive Choice and Health issued a statement last month saying that "in complex obstetrical situations, dilatation and extraction. is the safest' procedure to use It carries the le3$uisk.o£.bleedins, .peffoJ';:iJi~Hl, infeetiQn or trauma 1o.Jbe

_Qil1b 'canaV' On the other hand, a. group of mostly pro-life physicians called PHACT has written that "there are absolutely no obstetrical situations requiring the destruction of a partially delivered

fetus," and indeed that the procedure involves serious risks of maternal hemorrhage, uterine rupture, and infection.

A recent article in the "New York Times" noted that the partial-birth procedure is only one of three procedures (ail of them "pretty gruesome," as one doctor quoted in the article said) that can be used to end pregnancies after 20 weeks. The article reported that three of the twelve abortion

specialists interviewed generally prefer the procedure on the ground that it poses lesSJ:i.sk ot 'uterin!; llWfQ_ouion. The article also noted that one doctor who does not usually use the procedure has done so on particular occasions because '~~woman'5 anatomy; or the fetys's size~

.. i,., , . - .'

Given the state of medical evidence on this subject, an exception for women who need the procedure to prevent serious harm is appropriate. Such an exception would enable the attending doctor -- the person with the most relevant knowledge ~~ to make the complex: decision whether the procedure is in fact medically necessary in a given set of circumstances. The uncertainties surrounding this issue, however) caution against your making any estimates of the numhru: of women whose health, without this procedure, would be at risk of serious harm. Any such estimates, however large or smaJl, would be difficult to support.

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HOUSE CONSIDERATION

o! •• ' ·"":1'

On March 20 the House passed a bill identical to the one you vetoed last year (H.R. 1122) by a vote of29S~136, five (5) votes more than the two-thirds necessary to override a veto when all Members are present and voting, Since the September 1996 veto override vote in the House,

.... 9.~y' Jhrl\~ M~mbers -:- all Republicans '". switched their ,vQt~s fro~. ~ltPport~ng your veto to. , ,

supporting the legislation ( Representatives Shays (R-CT). Freylinghausen (R~NJ) and Sue Kelly (R9NY). They all indicated that an abortion rights advocate's recent statement that he lied about the number and circumstances of late-term abortions influenced their switch. All 73 Republican

freshmen voted for the bill; and 22 of the 42 freshmen Democrats voted against it. -

Two different alternatives were offered during the House debate on the floor. The.·first was a Hoyer (D-~)/Greenwood (R-P A) substitute which would ban all post-viability abortion procedures with an exception if the woman's life were in jeopardy or if she faced "serious adverse health consequences" without the procedure. The Hoyer/Greenwood substitute was ruled non ..

. germane by the House parliamentarian and a motion to appeal that ruling failed by a vote of26S. 165. A second motion to recommit, offered by Congressman Frank (D3MA); would have amended the uoderlying bill to provide a health exception where the procedure is performed to spare a woman "serious adverse long-term physical health consequences." This health exception would have applied to both pre- and post-viability abortions using the "partial birth" method.

That motion failed 149-282. .

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PHOTOCOPY w~c HANOW~!I!NG

Opponents of these two alternatives argued that both health exceptions were either overly broad, and therefore would not prevent any procedures, or unnecessary, because there is no instance where this specific procedure is medically necessary to protect the health of the mother. House Judiciary Committee Chairman Henry Hyde, one of the leading proponents of the legislation, has gone even further in publicly stating that, while he will trade "a life for a life," he will "never trade Life for health," Given Mr, Hyde's position, which has broad support in the Republican caucus, it is extremely unlikely that any late-term abortion measure that contains even a very narrow health exception will pass the House.

SENATE CONSIDERATION

You will recall that last September the Senate failed by nine (9) votes to override your veto of this legislation (57 .• <H). Senator Lott has indicated that "partial birth" will be on the floor when he has the votes to override a veto, but Senator Daschle is preparing for consideration at any time this month.

The Senate dynamic is somewhat different from the House, First, in his leadership role, Senator Daschle has taken a personal interest in trying to find a compromise that will pass and is also consistent with Roe ys. Wad§. Both Senators Daschle and Mikulski recently spoke out strongly in a Democratic caucus meeting that Members should not make up their minds about this issue until after they have considered an alternative being crafted by Senator Daschle (discussed below),

To date) only one Senator who voted against the "partial birth" abortion ban last year has publicly announced that he intends to switch his vote to support the ban -¥ Senator Hollings; who is up for reelection in ~98 and whose state of South Carolina recently enacted a "partial birth" ban (March 1997), Ot-her states that have recently enacted similar bans are listed below.

For his part, Senator Daschle thoroughly understands this area and intends to cast a wide net to try to capture what he regards as the center here. He has held a number of meetings with his colleagues on both sides of the aisle and they have encouraged him to continue his efforts. His aim is to try to construct language that gets the votes to pass the Senate and he is talking to Senators personally to see what it will take to secure those votes. Senator Daschle also recognizes, though, that if he is unsuccessful in getting a majority vote, he still must get a strong 'vote on bis alternative in order to keep enough Members voting to sustain the veto.

The Daschle alternative would ban all abortions after fetal viability unless the mother's life or health is truly endangered, The health exception is being drafted to cover three categories of medically diagnosable conditions based on their severity: (1) disease or illness related to the pregnancy itself, such as serious heart damage or Severe hypertension; (2) inability to treat aggressive cancers or life-threatening conditions such as non-Hodgkin's lymphoma, breast cancer, leukemia or diabetes complications; and (3) injury or loss of function such as paralysis, uterine rupture or future fertility. These categories set parameters to cover circumstances conawd

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rupture or future fertility. These categories set parameters to cover circumstances connected directh! to. ~QntjnllatipUQt:.the ~pregnancy but the ultimate decision of'whlch conditions fit withln these categories is left to the physician's best judgement. In terms of the sanctions, like the Republican bill, Daschle's alternative also provides for criminal penalties where the ban is violated. [DaschJe one-pager attached]

There may be a series of targeted amendments offered as well that will be designed to focus attention on the health issue. For example, amendments could list specific health conditions that would be excepted like breast cancer or diabetes, Another approach would be an amendment that would require that the procedure most protective of a woman's health be used. These would be constructed as message-type amendments to be used only if necessary.

Basically, there are six (6) pro-choice Republicans very much in play for Daschle to pick-up on his compromise: Campbell, Chafee, Collins (ME); Jeffords, Snowe and Specter. Senator Snowe, who has been working closely with Daschle, has indicated that Hutchison (TX), Roth and Stevens are also possible pick-ups but they are long-shots. Daschle has asked Snowe to continue to work her Republican colleagues. With these Republican numbers, Dasehle will have to get almost all

45 Democrats in order for his alternative to pass. During the last Congress, four (4) Democrats currently serving voted against a Boxer amendment (Hoyer/Greenwood-type language) which would have applied the ban post-viability only with a health exception; Breaux, Ford, Reid (NY) all three (3) pro-life and Conrad (mixed voting record on abortion). The pro-life Democrats will be the most difficult for Daschle to convince to vote for his alternative because of the strongly held proslife view that there should be no exception for a woman's health. Both Reid and Breaux are up for reelection in '98. New Senators Landrieu and Cleland will require some work to get their support. In terms of pro-choice and mixed-voting-record Democrats who supported overriding your veto -- Biden, Conrad, Dorgan, Leahy, and Moynihan -- most, if'not aU, of them will vote for the Daschle alternative. Biden, Dorgan and Leahy voted for the Boxer amendment and Moynihan. was absent the day of the vote.

Much of the outcome here depends on the procedural posture under which this compromise arises. While we do not know what that situation will be when the Senate takes this matter up, we can be sure that if the Republicans believe that the Daschle alternative actually has a chance of passing, they will demand at least a separate up or down vote on the underlying Republican bill and there would also be an up or down vote on Daschle, If both pass, both would go into conference with the House-passed bill that you vetoed last year) and we certainly cannot predict what the outcome would be of this conference which would be under the exclusive control of the Republicans. It is likely that they would simply come back with the bill you previously vetoed since most House Republicans, lead by Messrs. Hyde and Canady.are unlikely to accept any measure which contains a health exception. Another possibility is that they would keep both Daschle and the vetoed bill together but further narrow the health exception in the Daschle alternative. Keep in "lind though that the Daschle health exeeptlen only applies to abortions afttr viability. This means that, if tbey comblae the Dasehle alternative with the Republic-an bill, the Republican bill would control in cases where the "partial birth"

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procedure is perfonned hd"nr.e viability and therefore, in such instances, there would only be an ex.ception fot the life of the mother but JlQi her health. "

Procedurally, Daschle's vote count will be higher if Members are able to cast votes on both his alternative and on the underlying; Republican bill ~~ there will be a lot of folks who would vote for both. Members like those who voted for the Boxer amendment and also supported an override would fit into this category. Leahy, Biden, Specter, Campbell and Dorgan are examples. In addition, both Cleland and Landrieu are candidates for voting for both versions. Hollings is obviously in this category now as is freshman Senator Tim Johnson (D~SD) who voted to overrideyour veto when he was in the House. A measure which contained both the Daschle alternative and the underlying Republican bill would probably have the votes to pass the Senate.

Another component of this mix is the strong, unabashed pro-choice wing which includes Members like Boxer. Feinstein and Moseley-Braun. Bolstered by the pro-choice lobby, this group has warned Senator Daschle that they wUlnot support his alternative if the health exception is too narrowly drawn, While 'this group is not a large one, the vote situation is so tenuous that Daschle does not have a vote to spare on his alternative. For now, he is continuing to canvas other Members and when he has a better idea of his vote count, he will be able to determine the best course of action to take with regard to this group. The language in the alternative is still fairly fluid and changes can be made to accommodate these Members; but in the end, this group will have to come back into the fold. Of course, there Is absolutely no danger of any Senators in this group voting to override a veto.

Mention should also be made of Members who are up for re-election in 1998. Senator Harkin has painted for a number of these Democrats -- most notably Senators Murray, Dodd, and Feingold ~ .. a very dire description of how his vote to sustain your veto played in his '96 race. As for Dodd; and to some degree Lieberman, another concern is the fact that moderate House Republican Chris Shays (CT) switched and voted to support the measure. The pro-life community is spending a substantial amount of money running TV ads in certain key states. But countering the Harkin experience is Senator Durbin's '96 race; Durbin has told a number of Members that what matters most is how they talk about this issue.

lithe Daschle alternative does not pass; the question becomes which supporters of'his alternative will vote for final passage of the Republican bill? As previously pointed out. a strong Daschle vote just shy of passing will likely help in much the same way the Boxer vote happened last year»- 47 Senators voted for her amendment and 41 voted to sustain the veto.

Finally, the ultimate success of'Daschle's effort either in passing or getting veto override strength depends a great deal on the rhetorical battle that will become much more intense as this bill goes to the floor; So far, unlike the House, Senate Republican have not been able to publicly unnerve the Dasehle bloc. This is due more than anything to the hard work being put into this effort by Senator Daschle and his team. The fact that the effort has become a Leadership driven initiative is also critical. So the proponents' argument that the recent exposure of the "lies" told by the pro-

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choice lobby should cause Senators to reevaluate their position is being countered by the Daschle Camp.,lYithtbe..fadtbat,.unlike the Dasohlt a1tem~jheRepubFcanllilL would _Dill stoR a slngle abortion; it would merely resulfinabortion b other m~hoch.all ofw_' - _ : __ to tliewomiUt*'S"health:B . un ras, t eli fernative would outlaw these late-term abortions entirely no matter what the method and thereby actually reduce the number of abortions in this country .

I without putting women at unacceptable risk. Finally, the Daschle approach penults the argument that even if Congress overrides your veto, the Republican bill will be-struck down because its pre_ . viability restrictions significantly intrude upon the essential holding of the ~,; W_ad_e decision, ~ Enactment of the D.,cble, oltemati:", allow, Congr~" to pas s a comprehe •• i:"" oon"i!Utionai ban to stop unnecessary abortions of viable fetuses and IS a ban that you would sign .

. , ..

PHOTOCOPY W)C HANOWRI~ING

Appendix 11

When Kagan Played Doctor

Elena Kagan's partial .. birth abortion scandal.

S- W'lli s- It n Y _ I _ama_e a _

Posted Saturday,. July 3,2010, at 2:12 PM ET

Fourteen years ago; to protect President Clinton's position on partial-birth abortions; Elena Kagan doctored a statement by the American College ofObstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court, They understate the scandal. It isn't Kagan we should worry about. It's the whole judiciary.

Kagan) who was then an associate White House counsel, was doing herjob: advancing the president's interests. The real culprit was ACOe}, which adopted Kagan's spin without acknowledgme-nt. But the larger problem is the credence subsequently given to ACOG's statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.

The Kagan story appeared Tuesday in Ii.YIltt.!2lZ(d_-R~D!jtf.}-E and CNSNews .. com, You can read the underlying papers at the Media Research Center. There are three crucial documents. The first is a memo 11'0111 Kagan on June 22) 1996) describing a meeting with ACOG's chief lobbyist and its former president. The main takeaway from the meeting, Kagan wrote, was that "there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated," i.e., abortions in which the partial-birth technique was necessary to protect a woman's life or health. She explained:

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,' another option-whether another abortion procedure or, in the postviability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term+is equally safe.

The second document is a draft ACOO statement on. "intact D&X'I (aka partial-birth) abortions, faxed by ACOG to the White House on Dec. 5, 1996. The statement said that

a select panel convened by ACOG could identify no circumstances under which this procedure; as defined above, would be the only option to save the life or preserve the health of the woman, Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation. with the patient)

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Appendix 11

based upon the woman's particular circumstances. I'he potential exists that legislation prohibiting specific medical practices; such as intact D & X, may outlaw techniques that are critical to the lives and health of American women.

The third document is a set of undated notes in Kagan's handwriting, offering "suggested options!' for editing the ACOG statement. They included this sentence: "An intact D+X~ however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be all owed to make this determination." This sentence was added verbatim to the finel /\CO(" Statement released on Jan. 12, 1997; which read in. pan:

A select panel convened by ACOG could identify no circumstances under which this procedure, as dejtned above, would be the only option to save the life or preserw. the health of the woman An intact D&..,Y, however, may be the best or most appropriate procedure in (1 particular circumstance to save the life or preserve the health a/a woman, and only the doctor, in consultation with the patient, based upon the woman IS particular circumstances can make this decision,

The basic story is pretty clear: Kagan, with ACOG's consent) edited the statement to say that intact D&X "may be the best or most appropriate procedure" In some cases. Conservatives have pounced on this, claiming that Kagan "fudged the results of [ACOG's] study," "made up 'scientific facts.' " and "participated in a gigantic scientific deception." These charges are exaggerated. The sentence Kagan added was hypothetical. It didn't assert; alter, 01' conceal any data. Nor did it "override a scientific finding,' as National Review alleges, or "trump" ACOG's conclusions, as Sen. Orrin Hatch, R~Uta11; contends. Even Power Line, a respected conservative blog, acknowledges that AeOG's draft and Kagan's edit "are not technically inconsistent.' Kagan didn't override ACOGs scientific judgments .. She ret lamed them.

But Kagan's defense is bogus, too. On Wednesday, at her confirmation hearing; Hatch pressed Kagan about this episode. She replied that she had just been "clarifying the second aspect of what [ACOG] thought." Progressive blogs picked up this spin, claiming that she merely "clarified" ACOG's findings and made its position "more clear" so that its "intent was correctly understood." Come on. Kagan didn't just "clarify" ACOG's position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.

At the hearing, Kagan said AeOG had told her that intact D&X "was in some circumstances the medically best. procedure .. " But that doesn't quite match her 1996 memo about her meeting with ACOG, In the memo, she wrote that

we went through evo:v circumstance imaginable=-post- and pre-viability, assuming malformedfetuses, assuming other medical conditions, etc.,

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Appendix 11

etc.-and there just aren't many where use of the partial-birth abortion is the least' risky, let alone the "necessary, tt approach. No one should worry about being able to drive a truck through the President's proposed exception,' the real issue is whether anything at all can get through it.

The language in this memo=-vimaglnable," "let alone," the quotes around "necessary !Idepicts a conversation in which nobody could think of a real case where intact D&X was, as Kagan's revision would later put it, lithe best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman. I! Indeed, the participants doubted whether II any thing at all" could meet Clinton's standard=-namcly, a case in which intact D&X would be "necessary to preserve the life ofthe woman or avert serious adverse consequences to her health." So Kagan's statement at her hearing-that ACOG had said intact D&X "was in some circumstances the medically best procedure's=considerably stretches the truth as she recorded it. It implies, contrary to her contemporaneous notes, that ACOG had affirmed a specific need for the procedure.

Kagan's critics see her political meddling as a violation of science. The revised ACOG statement "was a political document, intended to bolster the case for partial-birth abortion, under the false flag of scientific objectivity," says Power Line. National Review agrees: Ii Language purporting to be the judgment of an independent body of medical experts" was "nothing more than the political scrawling of a White House appointee. II These complaints are overboard. Science and politics aren't mutually exclusive. The ACOG statement was largely scientific, and even Kagan's insertion was more than political scrawling: It reframed but obeyed the constraints of ACOGlsobjective beliefs.

But if conservatives are being naive about the relationship between science and politics, Kagan is being cynical about it. "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," she told senators 011 Wednesday. With this clever phrasing, she obscured the truth: By reframing ACOGs judgments, she altered their political effect as surely as if she had changed them.

She also altered their legal effect. And this is the scandal's real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.

National Review, CNSNews, and Power Line make a damning case that courts mistook the ACOG statement for pure fact. In 2000, when the U.S. Supreme Court struck down Nebraska's ban on partial-birth abortions, it cited ACOG: "The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X 'may be the best 01' most appropriate procedure in a particular circumstance to save the life or preserve the health ofa woman." That sentence, we now know; was written by Kagan.

Four years later, when U.S. district judge Richard Kopfruled against the federal partialbirth ban, he wrote:

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Appendix 11

I have summarized only the statements ofthe two leading national medical associations-that is, the American. Medical Association (AMA) and the American College a/Obstetricians and Gynecologists (ACOG)regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after em apparent professional inquiry. I did not summarize the policy views of these or other associations.

Kopf explained why he trusted the ACOG statement:

Informing the task force's proposed A COG Statement on Intact Dilation and Extraction, the members relied on their OHm education and expertise, obstetrics and gynecology textbooks, CDC information, published information on the safety ofD&E and the D(_~ subset of D&E, and information about the safety ofavailable alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview or receive testimony/rom doctors .. and did not draft and circulate individual position papers or statements for review and comment by other taskforce members. H' Before and during the task force meeting, 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 on Intact Dilation and Extraction.

Kopf, like the rest of us, was apparently unaware that after the ACOG task force formulated its proposed statement, the statement was politically vetted and edited. Kagan's memos and testimony confirm that ACOG consulted the White House and altered its statement accordingly. As a result, the statement refrarned AeOG's professional findings to SUPP0l't the policy views it shared with the White House.

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation's highest judges. As one of them, she had better make sure they aren't fooled again,

http://www.slate.com/id/2259495/pagenum/all/#p2

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