Elena Kagan Helped Edit Statement from Medical Association to Defeat Partial Birth Abortion Ban

By Jane McGrath | June 17, 2010 | 12:06 PM EDT

Supreme Court nominee Solicitor General Elena Kagan meets and greets senators on Thursday, May 13, 2010.(AP Photo/Alex Brandon)

(CNSNews.com) - Working for the Clinton White House in 1996, Supreme Court Nominee Elena Kagan appears to have successfully edited and added language in a statement from the American College of Obstetricians and Gynecologists (ACOG) to say that partial-birth abortion can be the “best and most appropriate” procedure to preserve the health of a mother, according to documents recently released from the Clinton Library.
“The picture that’s emerging,” says Douglas Johnson, legislative director for the National Right to Life, is that “it appears that Kagan was perhaps the key strategist in blocking enactment of the Partial-birth Abortion Ban Act.”
In the midst of a legislative battle about a ban on the controversial procedure, ACOG sent a statement in draft-form to the White House on Dec. 5, 1996, stating that “…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.” 
Kagan wrote in a Dec. 14, 1996, memo that if the draft of the ACOG statement was released or leaked to the public that it “would be a disaster.” President Clinton had spoken just a day before about his opposition to legislation banning partial-birth abortion unless it made exceptions for the life and health of the mother.
The final version of the ACOG document, “Statement on Intact Dilation and Extraction,” released a month later on Jan. 12, 1997, includes language that Kagan suggested adding in her handwritten notes. Specifically, Kagan’s notes suggest adding a line saying that intact dilation and extraction (intact D&X, also known as partial-birth abortion) “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman.” The final version of the ACOG statement uses this exact language written in her notes.
The line she suggested adding was so instrumental that it was quoted in the District Court and Supreme Court opinions in Stenberg v. Carhart
http://mrc.org/pdf/Stenberg(1of2).pdf and http://mrc.org/pdf/Stenberg(2of2).JPG
The recently released Clinton Library documents reveal that the White House attained the draft of ACOG’s statement on Dec. 5, 1996, in a fax from the head of ACOG’s government relations program, Kathy Bryant, to the White House counsel, Todd Stern.
On Friday, December 13, 1996, eight days after Stern received the ACOG memo, President Clinton held a press conference in which he said that he could not support a ban on partial-birth abortion unless it included an exception for preserving the health of the mother. Clinton cited “a few hundred women every year” whose children have “terrible deformities” and who “cannot preserve the ability to have further children unless the enormity -- the enormous size of the baby’s head is reduced before being extracted from their bodies.”
Kagan’s Saturday, Dec. 14, memo was sent the day after the president’s remarks. Her memo, addressed to White House Counsel Jack Quinn and his deputy, Kathy Wallman, discussed the ACOG memo that Stern received on December 5. Kagan specifies that she is writing “in light of the President's remarks on Friday,” and goes on to say that it “would be disaster” if the ACOG statement in its draft-form were released or leaked to the public.
The Clinton Library documents reveal that Elena Kagan gave suggestions using several slightly different wordings. All variations she suggested included the language “best or most appropriate procedure,” which is not used in the original statement.
http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(1%20of%203).pdf and http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(2%20of%203).pdf and http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(3%20of%203).pdf)

Kagan’s other edits on the marked-up copy of ACOG’s original draft were also reflected in the final version of the statement ACOG released to the public. For instance, the terms “however” and “notwithstanding this conclusion” are cut out, as her edits recommend.
http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(1%20of%203).pdf and http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(2%20of%203).pdf and http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(3%20of%203).pdf
Also, a double underline under the word “only” suggest emphasizing the word in the line that reads, “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.” The word “only” is bolded in the final version ACOG released on January 12, 1997.
http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(1%20of%203).pdf and http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(2%20of%203).pdf and http://mrc.org/pdf/ACOG%20memo%20w%20Kagan%20Edits%20(3%20of%203).pdf)

However, a June 22, 1996, memo reveals that Kagan knew about ACOG’s findings months before the White House received the statement in December.
http://mrc.org/pdf/Jun-22-96%20Kagan%20Revelation%20Memo%20(1%20of%202).pdf and http://mrc.org/pdf/Jun-22-96KaganRevelationMemo(2of2).pdf
Kagan met with ACOG two months after President Bill Clinton originally vetoed a bill that would have banned partial-birth abortion. On April 10, 1996, Clinton had invited five women, all of whom had late-term abortions claiming health reasons, to join for the ceremonial signing of the veto to tell their story.
While signing the veto, the president pleaded for legislation that would make an exception for “serious, adverse health consequences to the mother,” such as losing “the possibility of future child-bearing,” or if they “could clearly be substantially injured forever.” These situations, he emphasized, affect “a few hundred Americans every year.”
Johnson, who said he believes Kagan had “her hands on this from the beginning to the end,” points to a document just released from the Clinton Library revealing that Kagan knew about ACOG’s findings before attaining the draft in December. On June 22, 1996, Kagan sent a memo to Jack Quinn describing a meeting she had with ACOG’s chief lobbyist as “something of a revelation.”
http://mrc.org/pdf/Jun-22-96%20Kagan%20Revelation%20Memo%20(1%20of%202).pdf and http://mrc.org/pdf/Jun-22-96KaganRevelationMemo(2of2).pdf
Kagan wrote in the June 22 memo that she learned in this meeting that “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.”
Kagan goes on to specify that “there just aren’t many [circumstances] where use of the partial-birth abortion is the least risky, let alone ‘necessary,’ approach.”
Not only that, but Kagan goes on to say that “of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth abortion procedure was the least risky of their alternatives….[T]he other three – all of whom were carrying malformed fetuses in the third trimester – could have given birth, either through induction or through carrying the fetus to term, without serious risk to their health.”
(http://mrc.org/pdf/Jun-22-96%20Kagan%20Revelation%20Memo%20(1%20of%202).pdf and http://mrc.org/pdf/Jun-22-96KaganRevelationMemo(2of2).pdf
Nevertheless, Kagan continues, “none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used.”
It also appears that Kagan helped to shape the president’s standard and rhetoric, according to another document that surfaced from the Clinton Library. On January 22, 1996, months before the president’s veto, a memo to the president outlined a politically viable health exception argument. This memo is ostensibly from Jack Quinn, but a handwritten note suggests it was actually written by Kagan. The note states, “Elena, This is a great job – Thank you!! POTUS [The President of the United States] liked it, and it helped a lot. Thanks, Jack” (emphasis is original).
http://mrc.org/pdf/Jan-22-96KaganQuinnMemo(1of2).pdf and http://mrc.org/pdf/Jan-22-96KaganQuinnMemo(2of2).pdf
The memo stated that there were “between 400 and 600 partial birth abortions” per year. It continues, “One doctor who performs these abortions has said that up to 80% of his procedures are ‘elective,’ but this may means only that they [sic] are non-emergency surgery; the procedures still may be necessary to protect the life or health of the woman.”
http://mrc.org/pdf/Jan-22-96KaganQuinnMemo(1of2).pdf and http://mrc.org/pdf/Jan-22-96KaganQuinnMemo(2of2).pdf
The memo goes on to explain, “Because of the procedure’s disturbing qualities, I do not recommend that you object to the Act on any grounds suggestive of the position that all regulation of the procedure is improper. I recommend that you instead object to the Act on the narrow ground that this particular regulation fails to protect sufficiently the health of the woman and indicate your willingness to sign a bill that includes such protection.”
As CNSNews (http://www.cnsnews.com/news/article/66062) has reported, Kagan went on to help strategize political cover in 1997 for President Clinton to sustain his veto by supporting doomed amendments to the legislation.
Kagan served as Associate White House Counsel from 1995 to 1996 and as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997 to 1999.
Partial-birth abortion remained legal until a ban was successfully signed into law by President George W. Bush in 2003. In 2007, Johnson points out, “the ban was upheld by the Supreme Court,” despite Kagan’s suggestions in the Clinton Library documents that such a ban would not hold up in the courts.
http://mrc.org/pdf/Feb-15-96KaganUnconstitutionalMemo(1of2).JPG and http://mrc.org/pdf/Feb-15-96KaganUnconstitutionalMemo(2of2).pdf
In a Feb.14, 1996 memo to Quinn, Kagan wrote: “The problem with this approach is twofold. First, it is unconstitutional, because it prohibits use of the partial birth procedure in any pre-viability case in which the woman desires the abortion for non-health related reasons, even if the partial birth procedure (as compared to other procedures) is necessary to protect her from serious adverse health consequences. Second, the groups will go crazy, exactly because the approach effects this broadscale pre-viability prohibition.”
http://mrc.org/pdf/Feb-15-96KaganUnconstitutionalMemo(1of2).JPG and http://mrc.org/pdf/Feb-15-96KaganUnconstitutionalMemo(2of2).pdf
National Right to Life’s Johnson said he believes that, because of Kagan’s instrumental role in forming the president’s argument and rhetoric on partial birth abortion, she “deserves the blame” for preventing the enactment of the ban. And, because of that, Johnson continued, her “legacy” was that “many thousands of unborn babies were mostly born alive and stabbed through the head.”
The American College of Obstetricians and Gynecologists has not responded to numerous calls and e-mails seeking comment for this story.