Pro-Life Groups Seek Probe Into Kagan’s Clinton-Era Role in Partial Birth Abortion Debate

By Fred Lucas | July 28, 2010 | 4:51 PM EDT

Supreme Court nominee Elena Kagan arrives on Capitol Hill on Wednesday, June 30, 2010, to continuing her testimony before the Senate Judiciary Committee. (AP Photo/Alex Brandon)

Washington ( – More than 30 pro-life organizations are calling on senators to investigate Supreme Court nominee Elena Kagan’s record with regards to partial-birth abortion while serving as a Clinton administration attorney.
The Senate Judiciary Committee already sent Kagan’s nomination to the full Senate for a vote, which is expected next week. President Barack Obama nominated Kagan, the U.S. solicitor general, to be an associate justice on the high court in May.
“The undersigned organizations are writing today to express our strong opposition to the confirmation of Elena Kagan to the United States Supreme Court,” the letter sent to all 100 senators on Wednesday said.
“We also join Americans United for Life Action in their call for an investigation into the discrepancies between Kagan’s testimony before Congress and written documentation of her undue influence on medical organizations while advising President William J. Clinton on partial-birth abortion,” the letter added.
Charmaine Yoest, president and CEO of Americans United for Life Action, first called for a probe.
Pro-life organizations that backed her up included the Family Research Council, Human Life International, Liberty Counsel, March for Life Education and Defense Fund, Priests for Life, Susan B. Anthony List, Students for Life and the Traditional Values Coalition. Numerous state organizations also signed on.
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.
As reported last month, in 1996 she lobbied the American College of Obstetricians and Gynecologists (ACOG) to oppose a ban on partial birth abortions. This came after she learned that a select committee of ACOG determined, “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.”
Memos and other documents pertaining to Kagan’s White House work were released by the Clinton Presidential Library.
In a Dec. 14, 1996 memo, Kagan stated it would be a “disaster” if ACOG stated this.
The Kagan memo said. “1. Todd Stern just discovered that the American College of Obstetricians and Gynecologists (ACOG) 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 ACOG 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.)”

She then drafted an amendment to ACOG’s statement, which stated that partial-birth abortion “may be the best or most appropriate in a particular circumstance to save the life or preserve the health of the woman.”
On Jan. 12, 1997, ACOG publicly released its statement on partial birth abortion, medically termed intact dilatation and extraction abortion. It included a passage that tracked – verbatim – the “suggested option” from the handwritten notes found in the Kagan file released by the Clinton Library.
The final ACOG statement included the words: “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…” These words were not in the previous draft.
Advising President Clinton in an April 10, 1997 memo, Kagan said the ACOG statement was the “most reliable.”
“President Clinton and numerous courts (including the United States Supreme Court) ultimately relied on the ACOG statement to justify opposing the Partial Birth Abortion Act,” the letter from pro-life groups said.
In 2000, the U.S. Supreme Court issued its opinion in Stenberg v. Carhart, which declared Nebraska’s ban on partial-birth abortion unconstitutional.
Justice Stephen Breyer wrote the majority opinion stating, “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.’”
Blocking confirmation seems unlikely as Democrats, who favor Kagan, have a 59-41 majority in the Senate and some Republicans are expected to vote for her. Asked Tuesday if the White House expects a confirmation vote next week, White House Press Secretary Robert Gibbs said, “The confirmation that the vote will happen and that we’ll have a new Supreme Court justice, yes.”
During her confirmation hearing in front of the Senate Judiciary Committee, Sen. Orrin Hatch (R-Utah) said, “Well, I’ll tell you this bothers me a lot, because I know that there were plenty of doctors at ACOG that did not believe that partial birth abortion was an essential procedure, and who believe that it was really a brutal procedure and it was a custom conflict there, and as you know, many in Congress came to the conclusion that it was a brutal procedure too and that it was really unjustified.
“That bothers me that you intervened in that particular area in that way. And that’s all I’ll say about it, but I just want you to be aware that that bothered me,” Hatch added.
Kagan responded, “Sen. 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.” (See Earlier Story)
The letter stated, “The statement conflicts with her account of her June 1996 meeting with ACOG.”
“These discrepancies in Kagan’s statements cast doubt on her respect for scientific evidence as well as her ability to serve as an unbiased justice on our nation’s highest court,” the letter stated. “We urge you to conduct a thorough investigation before casting your vote on her confirmation.”
On July 19, former Surgeon General C. Everett Koop sent a letter to the Senate calling for Kagan’s nomination to be rejected based on her actions regarding ACOG and partial-birth abortion. AUL released a report detailing the memos days before Koop’s letter.
“A nominee to the highest court in the land must meet our nation’s absolute highest standards of integrity and impartiality,” Yoest said in a statement Wednesday. “With serious outstanding questions clouding Ms. Kagan’s nomination, we are leading a united effort to ask that the Senate investigate discrepancies between her Senate testimony and the written record on partial-birth abortion before proceeding to a floor vote.”