Kagan’s Fraud Upon the Courts

In 2003, the ban on partial-birth abortion was signed by President Bush”and promptly challenged in court, leading to the 2007 Supreme Court decision upholding its constitutionality, Gonzales v. Carhart .

Along the way to the Gonzales v. Carhart decision, the District Court Judge Richard Kopf ruled the ban unconstitutional, relying heavily on a report that the American College of Obstetricians and Gynecologists (ACOG) prepared during the Clinton administration.

And he relied on it particularly, he said, because it was produced without influence from the contending parties on abortion”proving its scientific integrity: “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 [the report] addressed.”

Turns out that isn’t true, even though the report said this was. In a blockbuster article in National Review , Shannen Coffin discloses the evidence he found in Clinton administration documents”a topic made timely by the hearings on Elena Kagan’s nomination to the Supreme Court.

And the evidence, Coffin claims, is that Kagan, from her post in the Clinton White House, wrote the central passages of the ostensibly neutral ACOG report and had them inserted in the text”which reveals, he says, Kagan’s “willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion.”

Apparently, the first draft of the ACOG report concluded that its panel “could identify no circumstances” that would make the partial-birth method “the only option to save the life or preserve the health of the woman.”

Kagan, then deputy assistant for domestic policy, issued a quick update to the White House:

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 ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.

Coffin explains what happened next:

So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document captioned “Suggested Options””which she apparently faxed to the legislative director at ACOG”Kagan proposed that ACOG include the following language: “An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.)

This is the hard hand of politics forcing scientific fraud to get the results it wants. “What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered,” notes Yuval Levin .

But it is just as much a fraud upon the courts that relied on the independence of the ACOG “independent report.” And the fraud persisted all the way to the Supreme Court that Elena Kagan has now been nominated to join.

Given the current make-up of the Senate, and the academic backing that Kagan has as a successful law-school dean, there seemed little point in investing much energy in opposing her nomination. She appeared a shoo-in from the beginning.

But this revelation yesterday from Shannen Coffin is deeply disturbing. She will undoubtedly be questioned about this today. Indeed, I imagine her handlers have been up all night trying to find an explanation. We’ll have to wait to see what account Kagan offers, but, as of now, the evidence looks damning.

Joseph Bottum is editor of First Things .