Wash. Times pushes slew of tired smears in attack on Kagan and Obama administration

››› ››› ERIC SCHROECK

In a July 8 editorial, The Washington Times falsely suggested that Elena Kagan convinced the American College of Obstetricians and Gynecologists (ACOG) to change its position on so-called "partial-birth abortion," when in fact, ACOG's position on legislation banning the procedure was consistent. Moreover, the Times rehashed false attacks on President Obama and Obama officials to smear the administration as having a "culture of death."

Wash. Times falsely suggests Kagan convinced ACOG to change its position on "partial-birth abortion"

Wash. Times: Kagan "set to work convincing ACOG to add a sentence making the practice seem more reasonable." From The Washington Times' July 8 editorial, titled "Kagan's kiss of death; Obama court nominee is responsible for keeping infanticide legal":

Solicitor General Kagan acted unethically -- while an aide to President Clinton and in testimony last week to the Senate Judiciary Committee -- to promote the monstrosity known as partial-birth abortion.

[...]

When the Clinton White House considered legislation to make this infanticide illegal, the American College of Obstetricians and Gynecologists (ACOG) reported it "could identify no circumstances under which this procedure ... would be the only option to save the life or preserve the health of the woman." Ms. Kagan pronounced this news "a disaster" because it could give Mr. Clinton reason to restrict partial-birth abortions. She then set to work convincing ACOG to add a sentence making the practice seem more reasonable. Courts later quoted that sentence in deciding bans on the procedure were unconstitutional.

In fact, ACOG's position on banning the procedure was consistent

June 1996: ACOG told Clinton White House officials that the procedure was rarely, if ever, necessary, but could in some circumstances be the best option. In a June 22, 1996, memo, Kagan detailed a task force meeting White House officials had with an ACOG representative. She discussed "two important points" that "emerged form the meeting," the first of which being 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; another option ... is equally safe." The memo added 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." Kagan concluded that the consensus from the meeting was that the administration had no need "to change the standard the President has articulated or the rhetoric he has used," which was that there should be an exception to a partial-birth abortion ban to allow for consideration of the health of the mother.

ACOG later issued a draft statement saying they "could identify no circumstances under which this procedure ... would be the only option," but that the decision should be "based upon the woman's particular circumstances." Months after the June meeting, ACOG released a statement on legislation that would ban the so-called "partial-birth abortion," which they refer to as "intact D&X." The statement said in part:

Terminating a pregnancy is indicated 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. However, 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, based upon the woman's particular circumstances. 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 potentially dangerous.

Kagan expressed concern about the statement's wording and suggested edits to make ACOG's position more clear. In a December 14, 1996, memo, Kagan wrote that it would be a "disaster" if the ACOG issued this draft statement as its final statement. Kagan's files also include handwritten notes titled "suggested options," which suggested a way to make clear that ACOG's position was that while intact D&X procedure isn't the only procedure that could be used to terminate late-term pregnancies, in some cases it could be the best option and that this decision should be left up to the doctor and patient, not politicians.

ACOG's final statement made clear that ACOG was unaware of a situation in which the procedure was the "only option," but that it could be the best option and this is not a decision that should be made by politicians. ACOG's final statement said:

Terminating a pregnancy is performed 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. 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. 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 inappropriate, ill advised, and dangerous.

Kagan: "I 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." During her confirmation hearing, Sen. Orrin Hatch (R-UT) asked Kagan about her memo in which she said it would be a "disaster" if ACOG issued its draft statement. Kagan explained that "the disaster would be, if the statement did not accurately reflect all of what ACOG thought. Both, I mean, that there were two parts of what ACOG thought. And, 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. 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." [starts about 203:00]

Kagan: "There was no way I could have or would have intervened with ACOG to get it to change its medical views on the question." After Hatch claimed that it "bother[ed]" him that Kagan "intervened in that particular area in that way," Kagan said: "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."

Washington Times ignores that ACOG opposed legislation that would ban "partial-birth abortion." At no point in its editorial didThe Washington Times note that ACOG consistently opposed legislation that would ban "partial-birth abortions," without, at minimum, a health exception. ACOG maintained that "[t]he intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous."

Wash. Times falsely suggests Kagan opposed any type of "partial-birth abortion" ban

Wash. Times: Kagan "is responsible for keeping infanticide legal"; "promote[d] ... partial-birth abortion." In its editorial, theTimes falsely suggested that Kagan opposed any type of ban on "partial-birth abortion," claiming that Kagan "is responsible for keeping infanticide legal" and that she "promote[d] the monstrosity known as partial-birth abortion."

In fact, Kagan advised Clinton to endorse ban with narrow health exception that would apply only with physician-certified risk of "grievous injury" to pregnant woman's health. In a May 1997 memo, Kagan and her boss, Bruce Reed, advised Clinton to endorse a proposal that would ban abortions after the fetus has become viable with a narrowly drawn health exception that would apply only if a physician "certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health." From the memo:

As you know, the Senate is taking up the Partial Birth Abortion Act (HR 1122) this afternoon. We expect Senator Daschle and Senator Feinstein to offer substitute amendments during the course of the debate. We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals.

[...]

Most critically, both amendments contain a health exception, though of different kinds. The Feinstein legislation would exempt an abortion if, "in the medical judgment of the attending physician, the abortion is necessary to ... avert serious adverse health consequences to the woman." This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician "certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health." "Grievous injury" is then defined as "a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition."

[...]

Recommendation

We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto. You have spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined, health exception -- as you said in a letter to the Cardinals, not a health exception that "could be stretched to cover most anything," but a health exception that "takes effect only where a woman faces real, serious adverse health consequences."

Times revives smears of Obama, administration officials to attack administration as having a "culture of death"

Wash. Times: As a state senator, Obama voted against measure "designed to keep alive infants who survive 'botched' abortions." The Times editorial claimed that Obama's nomination of Kagan "is in tune with President Obama's career-long devaluation of human life" and accused the administration of having a "culture of death." The Times further stated: "As a state senator, Mr. Obama voted several times against the Born Alive Infant Protection Act, designed to keep alive infants who survive 'botched' abortions."

In fact, Obama opposed an unnecessary IL abortion law amendment because IL criminal code unequivocally prohibited killing children. While serving in the Illinois state Senate, Obama opposed legislation that amended the Illinois Abortion Law of 1975. As Media Matters for America has repeatedly noted, Obama and other opponents said the bill posed a threat to abortion rights and was unnecessary because, they said, Illinois criminal code already required doctors to provide medical care for "babies who somehow survived abortions." When tasked by the Illinois attorney general's office with investigating allegations that fetuses born alive at an Illinois hospital were abandoned without treatment -- the alleged incident that inspired the "Born Alive Act" -- the Illinois Department of Public Health reportedly said that it was unable to substantiate the allegations but said that if the allegations had proved true, the conduct alleged would have been a violation of existing Illinois law. The Obama presidential campaign subsequently cited specific provisions of the Illinois Compiled Statutes in stating that the "born alive principle was already the law in Illinois."

Wash. Times claims Holdren promoted "compulsory abortion," sterilization programs. From the Times' editorial:

This is the president whose science adviser, John Holdren, wrote favorably of "compulsory abortion," of "a program of sterilizing women after their second or third child" and even of adding a sterilizing agent to drinking water as long as it has "no effect on members of the opposite sex, children, old people, pets or livestock."

PolitiFact.com gave this claim a "pants on fire" rating because "the authors make clear that they did not support coercive means of population control." After Fox News' Glenn Beck in 2009 offered a similar allegation about Holdren -- that he "proposed forced abortions and putting sterilants in the drinking water to control population" -- based on an environmental sciences book Holdren co-authored more than 30 years ago, PolitiFact concluded that "the text of the book clearly does not support that. We think a thorough reading shows that these were ideas presented as approaches that had been discussed. They were not posed as suggestions or proposals. In fact, the authors make clear that they did not support coercive means of population control. Certainly, nowhere in the book do the authors advocate for forced abortions."

Wash. Times takes Emanuel's words out of context to suggest he favors rationing health care based on age.
In its editorial, the Times wrote that "[t]his president's key health adviser, Ezekiel Emanuel, wrote in the 1990s that in public health policy, '25-year-olds [should] receive priority over 65-year-olds.'"

In fact, Emaunel was reportedly discussing " 'very scarce resources' like kidneys or vaccines, not the system in general."Responding to a similar claim made by serial health care misinformer Betsy McCaughey, The New York Times reported on August 24, 2009:

Ms. McCaughey seemed to have evidence for her conclusion that "he explicitly defends discrimination against older patients" in a recent New York Post opinion article. She quoted from a paper he co-wrote for Lancet in January: "Even if 25-year-olds receive priority over 65-year-olds, everyone who is 65 years now was previously 25."

But she did not report that the paper was addressing the allocation of "very scarce resources" like kidneys or vaccines, not the system in general.

Dr. Emanuel's argument -- that young adults should take priority in vying for limited health resources because they will get more years of life from them -- is a fairly mainstream if unpleasant approach to a problem with only bad choices, ethicists and doctors of varying persuasions say.

Wash. Times suggests Berwick favors rationing, ignores that he was saying the U.S. system already rations. Repeating a common right-wing attack on Donald Berwick, Obama's pick to head the Center for Medicare & Medicaid Services, the Times claimed that "Obamacare's scary health rationing ... will be implemented by a newly appointed Medicare czar with a long record in favor of rationing."

In fact, Berwick was correctly saying that rationing is already occurring. In a 2009 interview, Berwick answered a question about whether health care reform would "lead to the rationing of healthcare" by noting, in part that rationing was already occurring. As Media Matters has noted, right-wing media figures have cropped Berwick's comments to accuse him of favoring rationing. From the 2009 interview:

Q: Critics of CER have said that it will lead to the rationing of healthcare.

A: We can make a sensible social decision and say, "Well, at this point, to have access to a particular additional benefit [new drug or medical intervention] is so expensive that our taxpayers have better use for those funds." We make those decisions all the time. The decision is not whether or not we will ration care -- the decision is whether we will ration with our eyes open. And right now, we are doing it blindly.

Indeed, U.S. insurance companies already ration care. The insurance industry has readily admitted to using cost-benefit analyses in coverage decisions. For instance, during the July 15, 2009, edition of NPR's Morning Edition, WellPoint chief medical officer Dr. Sam Nussbaum told co-host Steve Inskeep that "where the private sector has been far more effective than government programs is in limiting clinical services to those that are best meeting the needs of patients." Moreover, in Senate testimony, Wendell Potter, a former senior executive at CIGNA health insurance company, detailed ways in which the insurance industry makes cost-based coverage decisions, including how "insurers routinely dump policyholders who are less profitable or who get sick" and "also dump small businesses whose employees' medical claims exceed what insurance underwriters expected."

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