Right-wing bloggers promote false suggestion that Kagan lied about abortion issue

››› ››› SARAH PAVLUS & ADAM SHAH

Right wing bloggers are promoting Americans United for Life's false suggestion that Elena Kagan lied about her involvement with the American College of Obstetrics and Gynecology's (ACOG) statement on "partial-birth abortion." In fact, Kagan's testimony is completely consistent with the evidence AUL cites.

Media falsely suggest Kagan lied when she said ACOG believed "partial-birth abortion" was sometimes "the medically best procedure"

Jill Stanek: "Kagan likely committed perjury when testifying before the Senate Judiciary Committee on her role with the ACOG partial-birth abortion scandal." On July 15, right-wing blogger Jill Stanek wrote: "Potentially big news coming from Americans United for Life this morning. I was in DC yesterday and was told US Supreme Court nominee Elena Kagan likely committed perjury when testifying before the Senate Judiciary Committee on her role with the ACOG partial-birth abortion scandal. If this charge if going to be levied at the press conference, and if it is true, Kagan has disqualified herself from serving as Supreme Court Justice." Stanek later updated her post, writing:

Yesterday in DC the chatter was that Kagan's confirmation to the US Supreme Court can still be stopped. She may have committed perjury.

This afternoon Senator Jeff Sessions, who had to cancel a press conference earlier in the day about all this, issued a statement about AUL's report wherein he came as close as genteel Senate speak allows to calling Kagan a liar...

President Clinton seems to have been disposed to sign the ban, and Ms. Kagan seems to have persuaded him to reverse that position. In her testimony, Ms. Kagan clearly presented herself as a neutral staffer in the process, though this record suggests she was an active player in working to keep partial-birth abortion legal.

Quin Hillyer: AUL report documents how Kagan "interfered with scientific judgment, hijacked policy" "[t]hen she seriously misled the Senate Judiciary Committee." In a July 15 post, Washington Times senior editorial writer Quin Hillyer wrote: "Americans United for Life has issued a wonderful report that documents just how wrongly Elena Kagan interfered with scientific judgment, hijacked policy, and eventually distorted Supreme Court case law, all in pursuit of keeping partial-birth abortion legal. Then she seriously misled the Senate Judiciary Committee about her actions." In an post the same day on the American Spectator blog, Hillyer wrote:

Americans United for Life has a great new report out on Elena Kagan's dastardly deeds with respect to partial birth abortion. In effect, Kagan alone is responsible for keeping this brutality legal for an extra decade. I am on the run now, so I don't have time to re-post all the links, but PLEASE follow this link to the post I just made about all of this at the Washington Times Water Cooler blog, and then please do follow the first link to AUL's actual report, which is definitive. This is important; if senators had any guts, they would treat it as disqualifying.

AUL report "calls for a Senate investigation" into Kagan's "amendment" to ACOG statement on "partial birth abortion." From a July 15 report issued by Americans United for Life Action:

Americans United for Life Action calls for a Senate investigation into (1) the facts surrounding Elena Kagan's amendment to the Policy Statement of the American College of Obstetricians & Gynecologists (ACOG) on partial-birth abortion (D&X procedure), (2) the discrepancies in Kagan's testimony before the U.S. Senate Judiciary Committee on June 30, 2010, and (3) the distorting impact of Kagan's amendment on federal judicial and Supreme Court consideration of state and federal prohibitions on partial-birth abortion between 1997 and 2007.

Kagan's actions have raised unresolved questions.

Because of either the lack of reliable scientific data, the ACOG Policy Statement, as Kagan amended it, was relied upon by federal courts to invalidate the laws of 30 states and an act of Congress. This seriously compromised the integrity of the U.S. federal judicial process for more than a decade.

Kagan's willingness to amend and politicize an impartial medical report by a major medical organization in order to affect legal and judicial events at the highest level of the American judicial system, relating to a major piece of Congressional legislation, raises serious questions.

AUL's claim relies on two statements by Kagan, neither of which is false. In the body of its report, AUL cites only two quotes by Kagan from her Senate testimony. AUL writes that Kagan stated that "ACOG had informed her that intact dilation and extraction [the procedure that ACOG determined was banned by the "partial birth abortion" bill] 'was in some circumstances the medically best procedure.' " AUL also quotes Kagan's testimony in response to Sen. Tom Coburn (R-OK) in which she said: "[M]y only dealings with ACOG were about talking with them about how to ensure that their statements expressed their views. I was a, you know, a staffer with no medical knowledge." From AUL's report:

In her Senate testimony on June 30, 2010, Kagan admitted writing the amendment in an exchange with Senator Orrin Hatch. Kagan defended her amendment to Senator Hatch, stating that ACOG had informed her that intact dilation and extraction "was in some circumstances the medically best procedure."

During her testimony, Senator Tom Coburn asked: "... final question, it's your testimony before this committee that you had no efforts at all to influence the decision by ACOG in terms of what they ultimately put out on partial-birth abortion?" Kagan testified: "My only dealings with ACOG were about talking with them about how to ensure their statement expressed their views. I was a, you know, a staffer with no medical knowledge."

William Saletan, in a Saturday, July 3, 2010 article in Slate, noted that Kagan's explanation "doesn't quite match her 1996 memo about her meeting with ACOG."

(AUL also includes several pages of transcript from Kagan's hearing in appendices to the report, but does not point to any other testimony to support its suggestion that Kagan lied.)

AUL report follows conservatives' false claims that Kagan "manipulated medical findings" to support "partial-birth abortion." Prior to the release of the AUL report, conservative media outlets have falsely claimed that Kagan -- in the words of The Washington Times -- "manipulated medical findings to support the argument for partial-birth abortion." These outlets made this claim on the basis of handwritten notes in Kagan's files from the Clinton White House calling a draft statement by the American College of Obstetrics and Gynecology (ACOG) that opposed a bill banning so-called "partial-birth abortions" a "disaster." ACOG's draft statement stated: "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." Kagan's handwritten notes contained a suggestion that ACOG add the following to its statement: "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." That addition appeared in the final draft of ACOG's statement.

In reality, documents back up Kagan's testimony that ACOG said procedure was sometimes "the medically best" one

According to sworn testimony, ACOG's task force on "partial-birth abortion" had evidence that, in some circumstances, the procedure was "clearly the best choice." As SCOTUSBlog publisher Tom Goldstein has noted, Dr. Joanna Cain testified during the litigation over the federal law that banned partial birth abortion that "I am well aware of multiple circumstances that an expert panel could identify at the time of the task force where it was clearly the best choice, including in my field, where the other options led to a higher likelihood of death or recurrence of disease." From Cain's February 10, 2004, deposition (via Lexis):

Q. Well, if you want to look at Exhibit 7--I'll go a little above that. "Terminating a pregnancy is indicated in some circumstances to save the life or preserve the health of the mother." This was, obviously, a conclusion of the select panel; is that correct?

A. That is correct, and we could identify numerous circumstances in which this might be the best procedure for that, rare but still numerous.

[...]

Q. Are you aware of any analysis or study -- let's strike that and say, are you aware of any study which supports the conclusion that intact D&X may be the best or most appropriate procedure in certain circumstances?

A. I'm not aware of a study. I am well aware of multiple circumstances that an expert panel could identify at the time of the task force where it was clearly the best choice, including in my field, where the other options led to a higher likelihood of death or recurrence of disease.

Memo in Kagan's files also supports testimony that ACOG had found some circumstances in which the procedure was the best option. AUL relies heavily on a June 1996 memo to argue that ACOG had found no circumstances in which intact D&X was the best procedure. In fact, that memo actually supports Kagan's testimony. Kagan stated in the memo that ACOG had identified some circumstances in which the "partial-birth abortion" procedure was the "least risky" alternative. Kagan stressed that the number of cases in which the procedure was the best option to preserve the woman's health was "exceedingly small," but nevertheless, according to the memo, ACOG had said such cases existed.

From Kagan's memo:

Melanne, Todd, Jennifer Klein, John Hart, and someone from Betsy Myers's office met a few days ago with the former President and the current chief lobbyist for the American College of Obstetrics and Gynecology (ACOG). For many months, the folks at ACOG had been unwilling to speak with us about the medical issues surrounding the partial birth ban, but Marilyn Yeager convinced them to do so, and this meeting was the result. It was something of a revelation.

Two important points emerged from the meeting. First, 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 -- whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term -- is equally safe .. I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable -- post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. -- and there just aren't many where use of the partial-birth abortion is the least risky, let alone the "necessary," approach. No one should worry about being able to drive a truck through the President's proposed exception; the real issue is whether anything at all can get through it.

Second and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives. Again, I'll spare you the details, but the 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. (The partial birth procedure in these cases was the least risky method of abortion, but this is not a strong argument, given that all these fetuses were post-viability -when most states, and the President himself, would prohibit all abortions except for life or health reasons.)

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.)

Kagan did not cause ACOG to say something inconsistent with what its medical panel had found

ACOG's final statement on the "partial-birth abortion" bill does not conflict with its draft statement or the findings of its medical panel. The draft ACOG statement and the final statement both oppose the "partial-birth abortion" bill. Both versions say that "a select panel convened by ACOG could identify no circumstances under which this procedure [intact D&X] as defined above, would be the only option to save the life or preserve the health of the mother." Both statements also say that: "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 final statement fleshed out this latter point by saying that intact 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."

Here's the relevant paragraph of ACOG's draft statement:

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.

And here's the relevant section of ACOG's final statement for comparison:

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 advocated for a middle position on "partial birth" and late-term abortions

Kagan advocated for middle position that would have banned late-term abortions with a narrowly drawn health exception. In response to the "partial birth abortion" bill being pushed in Congress, Kagan and her boss Bruce Reed advised President Clinton to endorse a proposal that would ban abortions after the fetus has become viable with a narrowly-drawn health exception that would only apply 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."

In 2000, the Supreme Court ruled that a more restrictive abortion law than the one Kagan advocated was unconstitutional. In Stenberg v. Carhart, the Supreme Court struck down Nebraska's "partial-birth abortion" statute, in part, because the law did not contain a health exception. Seven years later, in Gonzales v. Carhart, a case decided after Justice Samuel Alito replaced Justice Sandra Day O'Connor on the court, the Supreme Court upheld a federal ban on "partial-birth" abortion even though the statute did not contain a health exception. Four justices dissented in Gonzales v. Carhart, including Justice John Paul Stevens, whom Kagan has been nominated to replace.

Stanek is not a credible media figure

Stanek has suggested that domestic violence is acceptable against women who have had abortions. In an March 1, 2007, WorldNetDaily column, during a discussion of a scene in the film The Godfather: Part II in which Al Pacino's character hits his wife after she told him she aborted their child, Stanek wrote: "That spontaneous slap was the reaction of a real man who a woman had just told she aborted his baby. Compare that to the modern day cowardly male response, 'It's your choice. Whatever you decide, I'll support you.' "

Stanek supported billboards in Tanzana with the words "Faithful Condom Users" next to a picture of a large skeleton. In a March 31, 2008, post to her website, titled "Faithful Condom Users Die," Stanek urged her readers to fund Human Life International's (HLI) efforts to post billboards in Tanzania with the words "Faithful Condom Users" next to a picture of a large skeleton, stating, "HLI needs donations to keep the billboards up. Donate here."

Stanek credulously cited a report that "aborted fetuses are much sought after delicacies" in China. In April 9, 2007, posts to her website and the Illinois Review blog, Stanek wrote: "The following, if true, is what abortion and the dehumanization of preborn babies has wrought. It is the most despicable outcome of abortion I have ever seen or reported. Yet, if one is 'pro-choice' and denies that preborn humans are human, there is nothing wrong with this whatsoever. It can't even be considered cannibalism." She then cited a March 29, 2007, Epoch Times article, which reported: "The Next Magazine, a weekly publication from Hong Kong, reported that infant corpses and fetuses have become the newest supplements for health and beauty in China. Not only is the placenta considered a beauty remedy, but also aborted fetuses are much sought after delicacies. In Guangdong, gourmet body parts are in high demand and can even be purchased through hospitals..." After a reader questioned the truth of the claims, Stanek wrote:

[A]ccording to Wikipedia, The Epoch Times is an anti-Chinese-government newspaper. Wikipedia compares The Next Magazine, from whence Epoch got its information, to a sensationalist type paper. That said, Wikipedia is accessible by all to skew, including the Chinese government. And there are good sensationalist news organizations, like Drudge (and even the Enquirer these days), and bad sensationalist rags that boast alien abductions on their front page. But I've read legitimate news stories of the Chinese doing strange things with embryos. So I think this stuff is happening. And that last photo in particular looks real [emphasis added].

Stanek: America "elected a barbarian as president." In a November 6, 2008, WorldNetDaily column, Stanek responded to the election of Barack Obama as president by stating that "we are fooling ourselves if we think the United States is still a Christian nation. Its people just elected a barbarian as president."

Stanek: Obama election a sign God is "finally turning America over to judgment." In a November 12, 2008, WND column, Stanek wrote that she "could only see impending doom" following Obama's election, adding:

There is no way God would have allowed Barack Obama to become president were He not finally turning America over to judgment, to whatever great or lesser extent that will be.

I sat in my mother's church and was surprised to feel anger when the worship leader smiled and sang the same songs as ever, as if life hadn't drastically changed the week before, as if the Church itself wasn't indicted by Obama's election.

Stanek has repeatedly made other outrageous claims. Media Matters for America has identified numerous other outrageous and false claims Stanek has made.

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