WASHINGTON — When the U.S. Supreme Court knocked down Nebraska’s “partial-birth” abortion ban a decade ago, it relied in part on a medical group’s policy statement that the procedure might, in certain cases, be the best way to preserve a woman’s life or health.
The court cited the statement in ruling that Nebraska’s ban was faulty for lacking a health exception.
But notes and memos that surfaced during the recent confirmation hearings for Supreme Court nominee Elena Kagan indicate that she — and not the medical group — penned the language supporting the need for that exception. At the time, Kagan was an aide to President Bill Clinton.
Republicans in Congress have accused Kagan of manipulating, for political purposes, what was supposed to be the group’s objective scientific statement. Sen. Mike Johanns, R-Neb., is among those citing her actions then as a key reason to oppose her confirmation to replace retiring Justice John Paul Stevens.
Kagan has testified that she sought only to clarify the statement so that it matched the group’s findings.
Sen. Ben Nelson, D-Neb., who as governor signed into law Nebraska’s ban on the controversial late-term procedure known medically as intact dilation and extraction, declined a World-Herald interview request. He said he would not discuss the topic until he had made his decision on whether to vote to confirm Kagan.
At the heart of the controversy is a 1997 policy statement by the American Congress of Obstetricians and Gynecologists.
A draft of the multiparagraph statement sent to the White House for review said “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.”
The statement the group later released publicly retained that sentence but added another saying the procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
The added sentence in the scientific statement has been cited by judges weighing the validity of government prohibitions on what abortion opponents call “partial-birth” abortions.
But the source of that line is what has Republicans upset.
Documents from Kagan’s confirmation hearings include a note in the future nominee’s handwriting labeled “suggested options.” The note seems to respond to the draft statement that the White House received.
Among the options: the exact language that the procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
The medical group did not respond to World-Herald requests for comment, but the organization laid out how it developed its policy statement in a legal brief for a later case.
According to the brief, one of the group’s members had testified during the drafting of the statement that there were “multiple circumstances that an expert panel could identify at the time of the task force where (the procedure) was clearly the best choice, including ... where the other options led to a higher likelihood of death or recurrence of disease.”
The group then added the language — found recently in Kagan’s handwritten note — to the final statement, according to the brief.
During her confirmation hearings, Kagan acknowledged the handwritten note but said its sentiments reflected what the group already had expressed to the White House.
Republicans pressed her on whether she also wrote in a different memo about the medical group’s initial draft, “This of course would be a disaster.”
“The disaster would be if the statement did not accurately reflect all of what ACOG thought,” Kagan responded.
Then-Nebraska Attorney General Don Stenberg defended the state’s ban before the nation’s highest court. He told The World-Herald that he was surprised to hear of Kagan’s involvement in the group’s policy statement.
“Clearly, the court found that statement ... to be significant, because they went out of their way to quote it and of course they attributed it to the American College of Obstetricians and Gynecologists, not to a White House political operative,” said Stenberg, a Republican.
Stenberg said that the court had opposing evidence from his expert witness and that he considers it “totally inappropriate” for Kagan to have written the language in question and not have alerted the court.
“From a legal ethics standpoint, the more important thing is once this language started being used by the courts, it seems to me she had some obligation to bring to the court’s attention that this language ... hadn’t been written by the organization that was being given credit for it,” Stenberg said.
But Creighton University law professor Michael Fenner said that unless the medical group disagreed with the suggested changes and allowed itself to be politically bullied, Kagan’s language could simply have represented an accurate clarification of its views.
“A lot of a lawyer’s job is to take the facts and present them in a way that’s more persuasive than a layperson would present them, and it’s possible that that’s all she was doing here,” Fenner said. “And then you submit it back to the layperson and say ... ‘Is this correct?’”
Could the incident cause courts to treat such scientific statements any differently?
Fenner doesn’t think so. He said a judge has to take scientific evidence as it comes to the court, whether it is a case involving a back injury, asbestos-related cancer or the infringement of constitutional rights.
“It might cause some judges to be a little more skeptical, but even if they’re more skeptical, what are they going to do?” he said. “They can’t go out and do the scientific research themselves. They have to rely on what’s presented to them, and they have to make a decision as to which side’s evidence is the more persuasive.”
Contact the writer:
202-662-7270, joe.morton@owh.com
