Was “language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children” actually “nothing more than the political scrawling” of then Clinton White House staffer Elena Kagan? That’s the charge made by former deputy Assistant Attorney General Shannen Coffin in this NRO essay. Specifically, Coffin charges that recently released documents show that Kagan suggested the insertion of language into a statement on “partial-birth abortion” issued by the American College of Obstetricians and Gynecologists (ACOG) to help justify the Clinton Administration’s opposition to a federal ban. This language was relied upon by the Supreme Court in striking down Nebraska’s PBA ban in Stenberg v. Carhart and highlighted by those seeking to challenge the federal PBA ban once it was adopted.
According to Coffin, Kagan worked to alter the ACOG statement’s language so that it would provide stronger cover for opposing a federal PBA ban.
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.) The judicial battles that followed led to two Supreme Court opinions, several trials, and countless felled trees. Now we learn that language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children was, in the end, nothing more than the political scrawling of a White House appointee.s:
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 [PDF] 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 [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
Powerline’s John Hinderaker thinks this is a “smoking gun” and Kagan “has a great deal of explaining to do.” Glenn Reynolds thinks this is “at least” a scandal for ACOG, if not Kagan herself. If the allegations are true, it’s a clear example of the politicization of science by a Democratic administration (and further evidence that there are no clean hands on science politicization).
I expect we’ll hear more about this at tomorrow’s hearings, and I will be interested to see if there’s more to the story. If the allegations are true, I am sure we’ll hear that this sort of thing happens all the time in the White House, but does it really? Are statements by purportedly neutral and apolitical professional organizations re-written by White House staff for political advantage? Real “scandal” or not, this will fire up Kagan’s opponents and the GOP base, particularly social conservatives.
ADDENDUM: Assuming the allegations are true and do not omit key details, is this really a scandal? I think it is, but not necessarily for Kagan. Kagan was a White House staffer, so we would expect her to encourage outside groups to adopt positions that were amenable to Administration policy. That’s not a scandal. Encouraging a reputed professional organization to alter its factual claim in an official statement (e.g. whether the relevant procedure was ever the “most appropriate procedure available”) is a closer call, but probably not scandalous when done by a policy staffer for political purposes. So this could be embarrassing for Kagan, and make abortion a larger issue in her confirmation, but it’s not the sort of thing that will stop her from being confirmed.
ACOG, on the other hand, comes out looking much worse. If it actually let a White House rewrite an official statement of the organization on the necessity of a given medical procedure, its credibility will take a hit. If ACOG categorically opposed any and all legislative impositions, that’s fine. If it issued a specific statement based upon a White House staffer’s judgment of what was politically expedient, as opposed to what was true about the necessity or advisability of a given procedure, then it perpetrated a fraud and let itself be used for political purposes.
As a final note, there could also be interesting ethical issues if attorneys involved in any of the PBA suits were aware of the provenance of the relevant language in the ACOG statement. This statement was presented to multiple courts as a definitive statement of a professional medical organization about whether a given medical procedure was ever necessary or at least the best available option for certain women seeking abortions. If Coffin’s allegations are correct, however, it was a piece of political advocacy, not a statement of medical authority, and should not have been presented to courts as such.
MORNING UPDATE: A commenter below points to the full ACOG statement, suggesting that the changes to its wording were less consequential than Coffin’s account suggests. I am not sure this fully clears ACOG, but it certainly lessens the gravity of the charge.
ADDITIONAL UPDATE: Shannen Coffin responds at The Corner, and suggests some questions Senators may wish to ask Kagan at her hearing.
YET ANOTHER UPDATE: More from Shannen Coffin, and a summary of Senator Hatch’s questioning of Kagan on this issue. (And a post questioning Coffin post here.)
DangerMouse says:
This won’t stop her. The Democrats are so fully invested in their worship of abortion that they’ll probably pat her on the back for lying in favor of the cause. Watch for people to say, as you suggest, that “this happens all the time.”
Molech must be appeased, after all. What do a couple of crushed child skulls matter when the liberal zeitgeist must progress?
June 29, 2010, 11:31 pmLarryA says:
Isn’t it wonderful that campaign finance reform legislation will keep us from being misled about the integrity of government?
June 29, 2010, 11:42 pmAllan Walstad says:
And if it does…?
June 29, 2010, 11:53 pmMark Tillar says:
Did not the Reichssicherheitshauptamt Officers put their political beliefs and personal commitments into their work in killing jewish babies? (Not to mention other children and adults).
June 29, 2010, 11:54 pmCrazyTrain says:
They do? Whatever their predictions are, I would bet against. They are usually spectacularly wrong on just about everything.
June 29, 2010, 11:58 pmSteve says:
Some charming comments so far. For my part, I’m unable to tell whether ACOG signed onto language it didn’t believe or not. If only the last administration’s politicization of science had involved nothing but the innocuous process of getting scientists to sign onto statements they already agreed with!
June 30, 2010, 12:00 amPaul Horwitz says:
Jonathan, I read the article. I am sympathetic about your concerns about the politicization of science, without wanting to wade too far into those waters. I won’t predict whether the story will have political legs or not. And I think scientific organizations should be careful about their interactions with politicians. That said, is it unusual for the White House to consult with professional groups, including those groups with expertise? And are you yourself suggesting that Kagan’s proposed language was scientifically false, as opposed to, shall we say, advantageously worded? Granted that, as I said, expert groups should be cautious about accepting proposed language from anyone unless it comports with their expert opinion, if ACOG believed the language she proposed was true but better served their combined scientific and policy views, is the story quite as outrageous as Coffin paints it to be? Whether ACOG should have consulted with the White House or not — something that doesn’t seem to me to be prima facie unreasonable, although again it shouldn’t compromise its views on the scientific evidence — given that it did, was it really especially out of place for Kagan to suggest language that better served the White House’s policy views, again assuming that the language was not false? Isn’t that what lawyers do — even when their clients or non-client stakeholders are experts? Indeed, isn’t it often precisely the role of a lawyer to translate expert views into understandable and strategically effective language? And, as something of an aside, was Coffin equally skeptical of Congress’s own later legislative findings about partial-birth abortion on similar grounds?
These questions are quite sincere, I assure you, and I mean my caveats quite sincerely. I think there is room to share your underlying concerns about the politicization of science, and to say there are no clean hands in this area (although that seems to me a low bar that doesn’t say much about who is more culpable or who does it more often), and still conclude that Coffin’s article is overwrought, as I do — or to conclude that his criticisms are valid but that, given Kagan’s role at the time, they don’t say much about her nomination. Right?
June 30, 2010, 12:01 amleo marvin says:
If Kagan authored that language, it certainly calls into question whether “[b]efore 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 addressed.” If ACOG represented that to Judge Kopf, it could indeed be a scandal for ACOG, but I don’t see how Kagan is compromised by it.
June 30, 2010, 12:03 amPaul Horwitz says:
I see that your addendum, which was added while I was typing away, anticipates some of my questions. I would still press you on the question whether you think her proposed language was accurate or inaccurate and whether that matters to your own conclusions. But I think your addendum is reasonable, provided that you underline your point that if the language was consistent with ACOG’s views about the procedure, it would be less objectionable for it to accept that language, even if the language were more artfully phrased for policy purposes than ACOG’s own original language.
June 30, 2010, 12:04 amleo marvin says:
Like Paul H, I see your addendum crossed paths with and anticipated my comment.
June 30, 2010, 12:08 amJonathan H. Adler says:
Paul –
As I tried to indicate in my addendum (which I may have added while you were writing your post) I am not convinced that Kagan did anything “out of place.” I think it’s more difficult for the ACOG, even if they think the language she proposed “better served their combined scientific and policy views.” It wasn’t treated by courts and others as a policy statement, or a “combined scientific and policy statement,” but as the expert opinion of a medical organization, and the ACOG apparently let it be used that way. I don’t believe the fact that we can parse the language and say that both versions of the statement were “true” reflections of the ACOG’s views, even though they communicated different messages, does not exonerate them. This episode reminds of me of incidents in which lawyers for corporations rewrite scientific reports by their experts so that they are still technically accurate, but convey a different message.
JHA
June 30, 2010, 12:10 amPaul Horwitz says:
Jonathan, I appreciate the response. Two things. First, by “combined scientific and policy views,” I don’t mean anything nefarious; I just used that locution to suggest that a professional body might have policy views that reflect and are consistent with its expert or scientific views. Second, I think the analogy you suggest is apt, and I agree, as I said in my comment, that expert groups must be careful about accepting such advice. But — and I don’t think you disagree — those rewrites, IF they accurately (and perhaps more legibly and purposefully) reflect the expert or experts’ own views and IF they do not distort or render misleading those views, are not per se illegitimate: certainly not for the lawyer, but also not necessarily for the expert, in my view.
June 30, 2010, 12:19 amTatil says:
How do we go from her suggesting a language (it does even say suggesting a statement, just language) to “science politicized”, “these were not the opinions of the experts” Supreme Court was mislead” etc.? It seems Republican mouthpieces are trying everything Bush was accused of (Katrina vs. BP, overruled scientific committees vs this). The differences in degree and kind, I guess, does not matter.
June 30, 2010, 12:34 amElliot says:
Well, whoever say it does should be able to back it up with numerous actual citations, names, dates, organizations, etc. Should be very interesting reading.
June 30, 2010, 12:53 amArthur Kirkland says:
After reading Mr. Coffin’s original account, I am still waiting for Mr. Coffin to identify the “conflict” between the varying descriptions of the experts’ position. A partner at a major law firm should be able to accomplish that in an especially persuasive manner. If he does not do so soon, the customary inferences will be appropriate.
June 30, 2010, 1:00 amleo marvin says:
Can we agree Coffin offered no evidence for his assertion of Kagan’s “willingness to manipulate medical science”?
June 30, 2010, 1:04 amtheobromophile says:
While I understand that partial-birth abortion can also be referred to as “intact dilation and extraction”, I’m somewhat confused as to why Prof. Adler would put the term in quotes. It’s accurate, descriptive, nearly universal in its use, and understandable by doctors and lay people alike. (“Intact D&E” is problematic, in that “intact” grammatically modifies “dilation”, but logically modifies “fetus while extracted”. “Dilation and intact extraction” at least makes some grammatical sense.)
My terminology rant aside, this is a procedure that about 85-90% of Americans oppose, except in the most dire of circumstances; obviously, that number includes over half of pro-choicers. Although the Constitution should not be interpreted to be a measure of popularity, we can certainly expect that our judges will not thwart the attempts of the people to affirm human dignity. The best analogy that I can think of at this late hour is waterboarding or torture. You can debate who is protected by the Constitution, and whether circumstances in our society justify these objectively terrible things, but I think that we are all squeamish about a person who finesses away the debate. This is even more of a concern when the person will be appointed, for life, to the position of a neutral arbiter of some of our toughest debates.
June 30, 2010, 1:04 amGuesty says:
For those in the know, ACOG was always a political tool of the Nat’l Abortion Federation, the group behind much of the opposition to the PBA. They also wrote FACE, one of the most blatantly unconstitutional restrictions on speech in a while (just see the 9th Circuit en banc ruling in ACLA that hand-waived away the first amendment). Those who work within the prolife movement know that while much criticism lands on Planned Parenthood, they’re just the tip of the abortion iceberg. Dig deeper. NAF is the real problem and Kagan is in their pocket.
June 30, 2010, 1:14 amDG says:
Why this debate over such a rarely performed procedure?
June 30, 2010, 1:17 amMonkeyesq says:
It is pretty much common practice for lawyers to draft affidavits for their witnesses, even expert witnesses to sign in order to ensure that the statement is well worded and hits all of the important points. This only becomes a problem if the witness signs a statement that they do not believe is true. While this is not the exact same situation, it is close enough that, without more, I don’t see any problem. If ACOG actually changed their position at the request of the White House, that may be a problem, but that doesn’t seem to be what is being alleged here.
June 30, 2010, 1:27 amrmd says:
It is of course entirely possible both that (A) there are no circumstances under which intact D&X is the only option, and (B) there are some circumstances under which it is the best option.
June 30, 2010, 1:28 amJustin says:
Yeah, not seeing what’s controversial here. Unless ACOG didn’t believe what they were signing or changed their scientific position because of Kagan’s pressure, Kagan was basically acting like a lawyer does with any third party in any legal situation – helping draft and formulate their statement so it reflects their view but will have the maximum legal impact. Unless my years of coaching expert witnesses is now unethical, I don’t see why a bunch of lawyers are jumping up and down. Except, of course, that it involves abortion so we should talk conspiratorially and loudly about it so the right people get very angry and have reason to oppose Kagan.
Grasping at straws continues.
June 30, 2010, 1:48 amORID says:
Doesn’t this screw up a bunch of “facts” the courts have been accepting as true? So does it open the door to new challenges regarding those “facts”, since they were flawed? I think, if the language came from the White House, how can it be claimed to originate with the scientists?
June 30, 2010, 1:58 amORID says:
I’m surprised the GOP hasn’t focused with laser-like intensity on her time at the White House and simply pepper her with random questions.
What was her involvement in the Lewinsky scandal? Did she draft any of Clinton’s statements? In all honesty, she was the top lawyer there… so perhaps it was Kagan who came up with the definition of “is”?
June 30, 2010, 2:00 am~aardvark says:
Ah, Jon! You let Glenn and Rocket make a mountain out of a molehill again! This is so insubstantively minor, I am amazed you’re devoting the issue this much space. Let’s remember that this is a legal WH staffer advising an allied organization on language that would have most appeal in a AC brief. The original language is put together by people who are far less familiar with constitutional issues or proclivities of individual justices than EK already was at the time. The fact that such an apparently minor comment not only grabbed attention of the justices but ended up swaying their opinions says absolutely nothing negative about Kagan–in fact, it is a testament to her superior ability to anticipate the issues to present them appropriately to the Court. If anything, it’s a boost to her Court credentials. As for ACOG, they provided the substance. If they were in disagreement with apparently Kagan’s language, they had two options–silently accept the twist without contradictions and eventually be called on it, or express the disagreement and seek more accurate language. On the other hand, if they were in complete agreement, they would have simply taken the note and inserted it verbatim as an improvement on what they had. Either way, the final word with with the ACOG and not with Kagan. Given the options, it seems rather implausible that they would have adopted a patently false formulation simply to score a political point–and, since they have never been called on it until now, it’s rather obvious that this is just another case of manufactured outrage.
So, let’s stop the posturing. There is nothing even remotely controversial here. And pretending that this is the equivalent of science politicization (that amounted to suppression of whole reports–and wholesale revisions by WH staffers without any consultation with the original writers) under W is simply preposterous.
June 30, 2010, 2:39 amBruce Hayden says:
I think that we have a couple of things here.
First, the “science” is sketchy. It is also radical. Glenn Reynolds today quoted:
And this makes sense. We are talking third trimester abortions, where the fetus is viable and would most often survive (at least in the U.S.) if delivered at that time in a woman’s pregnancy. We are talking medical situations where the woman would not survive either a C-section or an induced delivery. And, to compound the problem, the procedure has to be done in such a way that a live birth is effectively impossible, because the fetus is viable at that time, and hence the dismemberment.
Secondly, I do wonder whether Ms. Kagen had an ethical duty as an attorney to inform U.S. District Court Judge Richard Kopf that it was she, and not the ACOG that had drafted the language. I don’t think that she was legally involved by that point in time. But it sure seems pretty close to me to witness coaching. So far, there doesn’t seem to be any evidence that the courts that depended on that ACOG statement realized that it was politically, and not scientifically or medically, based. Somewhere along the line they ended up with a political document for its scientific conclusions. I think in the end, more the appearance of impropriety than actual impropriety.
It will be interesting how this works out over the next bit. Ten years ago, with social conservatism much more ascendant, and abortion much more a hot-button issue, such a radical position on her part could have ruined her chances at confirmation. But now, she may be able to slide on this issue, as many fewer voters are likely to change their votes today based on their Senator’s vote to confirm her to the High Court.
June 30, 2010, 3:37 amdr patent says:
Seems to me that there’s a problem that’s not being discussed here: the Executive Branch has a duty to defend the constitutionality of statutes as long as there is a good faith arguement that allows it to do so. Instead, Kaganan while in the Clinton WH, was taking steps to undermine that which the DOJ had to defend. Seems like an unethical obstruction of the executive branch’s obligation to the law. If she was going to do this, she shouldn’t have been working in the executive branch. It’s not that much different from a WH staffer assisting a target of a government investigation, and it gets worse if she had any non-public information about the DOJ strategy (I haven’t seen any evidence that she had any such knowledge).
June 30, 2010, 4:09 amFub says:
While I do not doubt that Dr. Giddens’ opinion of PBA practice is sincerely held, and may be correct, I also think the evidence he presents as basis for his opinion is remarkably weak.
To reason from his evidence to his conclusion is to engage the same fallacious reasoning attributed to Pauline Kael upon Nixon’s 1972 re-election: I haven’t seen it, so it never happens.
June 30, 2010, 4:22 ampublic_defender says:
Proposing language to go into expert reports is a critical part of what lawyers do. The only scandal is when experts include material that the experts do not agree with. And the NRO’s report provides no evidence that the experts disagreed with the statement. To the contrary, it looks like Kagan helped the group to craft a statement that addressed the facts that were at issue in the case.
According to NRO, the initial expert statement was “that the select ACOG panel ‘could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.’” Saying the procedure is not “the only option” is entirely consistent with the revised statement that it “‘might be’ the best method ‘in a particular circumstance.’”
The Court wouldn’t care id the procedure was just one of many. That wasn’t an issue. The question is whether it might ever be the best procedure. The first statement did not address the critical question. The final version did. One of a lawyer’s job when working with experts is to make sure that the expert actually and honestly addresses the real issue. Kagan’s response does exactly that.
I have often suggested precise wording to go into the reports of experts. My guess is that every lawyer who has worked with an expert has. Oftentimes, experts know what they want to say, but don’t use the key legal phrases that give the report the legal meaning they want to give it. Also, experts often see all sorts of issues that are irrelevant to the case. The lawyer’s job is to focus the expert on true, relevant facts.
Basically, Adler and NRO accuse Kagan of being a damn good lawyer.
June 30, 2010, 6:11 amBrett Bellmore says:
In practice this principle seems to merely be an excuse that’s used whenever an administration wants to defend an unpopular law the administration likes. They never seem to fail to find an excuse to not defend laws they don’t like, or at the very least, take a dive in doing so.
June 30, 2010, 6:47 amConstantin says:
I think this largely is correct. I figured Obama’s ghoulish, unintelligible opposition to the Illinois version of the Born Alive Infant Protection Act would become a major issue in the presidential election. In the end I don’t think there was a single ad run on it. People are where they are on this. Moreover, both parties like it this way; I don’t think either would actually want to definitively “win” the abortion issue. There’s too much money to be made milking it.
June 30, 2010, 7:03 amjpe says:
There’s no conflict between the two statements: D&X could be the best option while not being the sole option. This appears to be a nontroversy.
June 30, 2010, 7:37 amjpe says:
The bill banning D&X didn’t become law until the Bush administration, so the Clinton DOJ was under no such obligation. This nontroversy presumably arose during the period that Clinton vetoed a D&X ban.
June 30, 2010, 7:43 amJonathan H. Adler says:
I think the problem here is that the ACOG isn’t supposed to be anyone’s witness. When you put your expert witnesss in the stand, the judge and jury know that it’s your witness, not a “neutral” expert. My problem is that ACOG holds itself out as a neutral authority, and that is how they were treated by the courts. Again, this does not implicate Kagan as much as it does ACOG.
As for whether the changes make a difference, assuming the accuracy of the original draft language — that 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.” (emphasis added) — I think it is rather clear that the changes in the language were designed to give a false impression, that the procedure could be necessary to safeguard the health of a woman, and that this different spin could be legally significant because, under Doe v. Bolton, “health of the woman” is interpreted quite broadly in the abortion context.
I actually don’t think this was a problem as the ban had not yet become law. President Clinton vetoed it twice (if I recall correctly) because it did not include a sufficient health exception. The PBA ban was not adopted until after President Bush was elected.
JHA
June 30, 2010, 7:49 ampublic_defender says:
I should have read the other comments before posting my own. Justin said what I said, but more concisely:
Claiming that this is a “scandal” only underlines the ignorance of the people making the claim. People who know him say that Adler is not a hack, and I take them at their word. But this post shows that many law professors really don’t get how the legal system works.
Law professors are often as skilled and knowledgeable about litigation as practicing lawyers are about teaching and scholarship. Those are all distinct skills, and proficiency in one does not equate to proficiency in the others.
June 30, 2010, 7:57 amcboldt says:
Methinks the judge made too much of the “objectivity” of the proponent. ACOG is a pro-abortion organization. Its work product SHOULD be slanted in presentation.
June 30, 2010, 7:57 amACOG is as much neutral as to medical/policy matters as the ABA is on legal/policy matters. That is to say, they are not neutral. They are biased in favor of definite policy outcomes.
spo says:
What about a Rule 60 motion to undo the judgment?
Also, could someone please explain how forcing a feet first birth and holding up the birth so that the brains can be sucked out of the fetus is ever medically indicated for the health of the mother? Seems that the pregnancy could be terminated and the mother’s health fully protected by simply birthing the fetus without the brain sucking. But then you would be terminating only the colonel’s command, and not the colonel himself.
June 30, 2010, 8:01 amcboldt says:
JHA: — I think the problem here is that the ACOG isn’t supposed to be anyone’s witness. –
June 30, 2010, 8:06 amThey have their own self-interest, at least. I would be surprised if their report was not self-serving.
– My problem is that ACOG holds itself out as a neutral authority, and that is how they were treated by the courts. –
I take that as an error in judgment on the part of the court. Every expert worth anything holds him or herself out as a “neutral” authority. It’s up to the judge/jury to be objectively critical of those claims. No dueling experts in this case?
public_defender says:
Emphasis added. One rule in reading legal arguments is that “clear” signals that the author has no support for his position. What is your evidence that the statement was “designed to give a false impression[,]” rather than a true impression? The revision addresses a factual question not addressed in the first draft. That’s not evidence of any “design[] to give a false impression[.]”
Do you have any evidence of your allegation of intentional misrepresentation other than your personal belief that the malicious intent was “clear”?
And as to the point that this group put itself out to be “neutral,” I’ve worked with “neutral” groups, too. And part of the collaboration in litigation is exactly what Kagan did here. And given that the report was written with exactly this kind of litigation in mind, I don’t see how that deceived anyone.
June 30, 2010, 8:12 amspo says:
come on pd, this is misleading as hell.
June 30, 2010, 8:19 amStan says:
Untrue. The Clinton Administration was not opposed to a Federal ban. One of the memos you cite has Kagan saying that President Clinton “should continue to support the ban”
June 30, 2010, 8:21 ampublic_defender says:
Adler actually refutes his own point. He asserts that the omission of the statement that D&E might sometimes be the safest procedure means that D&E is never the safest procedure. That means that if the group did not want to make that impression, they had to change the language.
It all comes down to what was the group’s position before Kagan suggested the change. You and Adler have zero evidence that the group thought the D&E was never the safest procedure. Just because you disagree with a statement does not make that statement a lie.
June 30, 2010, 8:29 amcboldt says:
– What is your evidence that the statement was “designed to give a false impression[,]” rather than a true impression? –
June 30, 2010, 8:32 amThe evidence is in the article or articles referenced in the OP. The first of the following two sentences was deleted from ACOG’s report. The deletion is sensible, given ACOG’s stated policy preference, being against the PBA ban. I wonder if there is any exchange in the record that reflects an expert opinion whether or not intact D&E would be the only option to save the life or preserve the health of the woman. At any rate, not volunteering that point of view seems to me, to be designed to give a false impression of the expert’s point of view as to the necessity of permitting the intact D&E procedure.
Jonathan H. Adler says:
I may have overstated a bit. The changes were intended to give a different impression than the draft that was misleading. As one of the White House memos noted, Kagan thought the original formulation “would be a disaster.” Why? Because that formulation acknowledged that the ban would not imperil the life or health of any woman. Hence the revision. Was it misleading? Yes. Consider how the final ACOG language was interpreted in court: That the PBA ban could affect the health of some women. So the change created a different — and, apparently, inaccurate — impression about the factual question of whether the procedure was ever necessary to protect a woman’s life or health. Again, I don’t think this is, or should be, fatal to the Kagan nomination. I reject the idea that it’s a “smoking gun” against her (and I’m not looking for one). But I do think this is very problematic for ACOG.
One other point, yes it’s true that attorneys coach witnesses all the time, but we never hold up that process as emblematic of sound scientific practice. As I understand it, the ACOG statement was being held out as a neutral medical authority on this procedure, not a “third-party” expert witness for one side or the other.
JHA
June 30, 2010, 8:33 amcboldt says:
– You and Adler have zero evidence that the group thought the D&E was never the safest procedure. –
June 30, 2010, 8:36 amAdler said, “… a false impression, that the procedure could be necessary to safeguard the health of a woman …”
Adler did not say ” … a false impression, that the procedure was never the safest to safeguard the health of a woman …”
Jonathan H. Adler says:
It was to justify the Clinton Administration’s opposition to the ban being proposed at the time, and opposition to a ban that did not include a health exception. Recall Clinton vetoed the PBA ban twice.
JHA
June 30, 2010, 8:36 amRalph Hitchens says:
My guess is that the language in question is simply a more accessible rendition of the consensus viewpoint of the ACOG. Pundits of whatever persuasion have no professional standing to weigh in on an issue like this.
June 30, 2010, 8:50 amStan says:
Wrong. It was to justify the Clinton Administration’s opposition to the position of the American College. The American College opposed any ban. The Clinton administration supported a Federal Ban.
June 30, 2010, 9:08 amG.R. says:
The full, final ACOG statement appears to be available here (see pages 6 and 7 of the linked PDF). I think it is worth taking a look at for anyone interested in this question because the final statement is omitted by the PDF that NRO provides.
The final version of the ACOG statement contains the statement: “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.” That was the language present in the draft that Kagan reviewed, and it was present without change in the final.
What changed was the following sentence. In the draft that Kagan reviewed, it read: “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.”
After the revision, the draft instead read: “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.”
Even by the standards applicable to a written statement by an expert witness to be presented to a courtine, this seems to me to be routine sharpening and polishing of the kind an ethical lawyer would do and an honest witness would accept.
The view expressed in the original version was that the doctor should make the decision after consulting with the patient based on the particular circumstances. That implies, but does not directly state, that in some circumstances the doctor could determine that intact D&X was the best or most appropriate option (since if the doctor could never make that decision, why should the decision be left to the doctor?). The final version makes that position express.
And all that, of course, is assuming the applicability of witness-type standards, which (as several people have pointed out) neither Kagan nor ACOG were actually subject to here.
June 30, 2010, 9:12 amjames says:
Worship, eh? I know you enjoy a dark dirty alley like the rest of the rats, but it’s no place for a woman to go seeking a doctor when she gets in a family way.
June 30, 2010, 9:13 amArthur Kirkland says:
Mr. Coffin appears to have overplayed a weak hand, perhaps because his judgment was compromised by zeal; the Instaconservative and the three-clown circus amplified the mistake.
Or maybe all are unfamiliar with good lawyering.
Either way, an inconsequential sideshow.
June 30, 2010, 9:20 amcboldt says:
– I think it is worth taking a look at for anyone interested in this question because the final statement is omitted by the PDF that NRO provides. –
June 30, 2010, 9:25 amHaven’t looked at the PDF, but trust your representation – as ACOG didn’t omit the “not the only option” statement, the issue is not at all as presented by NRO and others. IMO, the “issue” as to ACOG vanishes.
Now NRO has to deal with the ramifications of its own omission and resulting misimpressions.
Malvolio says:
There are two interpretations of what happened. One is that the ACOG meant “there are many circumstances in which D&X is only one of several alternatives but by far the superior one” and somehow left out the sense of the italicized portion. Kagan’s role would therefore have been clarifying the testimony.
The other is that the ACOG meant “there are many circumstances in which D&X is only one of several alternatives, all of them roughly comparable in maternal outcomes.”
If that second reading is in fact the case (and none of us knows whether it is), Kagan’s actions are something very close to subornation of perjury. And not just regular perjury, but perjury before the Supreme Court, where she now (ironically) proposes to sit.
Obviously, it’s vital we find out which of the two cases obtained; equally obviously, we are extremely unlikely, given the politicization of the confirmation process, ever to do so.
June 30, 2010, 9:33 amJonathan H. Adler says:
G.R. –
Thanks for providing the link to the final statement. I think that is significant and lessens the strength of the accusations.
I don’t think that “witness-type standards” are applicable. In terms of ACOG’s credibility, I actually think they are to be held to a higher standard. Witness-type standards assume an adversarial process in which their presentations can be challenged. Here, on the other hand, ACOG was holding itself out as a neutral authority, and was not being presented as a witness by one side or another.
Malvolio –
Even assuming the latter scenario, Kagan’s actions are still nowhere close to “subornation of perjury.”
JHA
June 30, 2010, 9:41 ammls says:
What strikes me is the utter meaninglessness of the statement Kagan wrote. Its like saying that a hand grenade may be the best or most appropriate method of defending against a home invasion under some circumstance. Given (a) the vagueness of the standard (what does “most appropriate” mean), (b) the infinite number of circumstances that might be hypothesized and (c) the assertion is merely that a hand grenade “may” be the best or most appropriate method (then again it may not), this ought to be worthless as “expert” testimony. I don’t know that we ought to blame Kagan (this is what lawyers do), but it is fair to note that such a statement is designed either to deceive the courts or to allow the courts to use it to deceive the public.
June 30, 2010, 9:47 amStan says:
This makes no sense. ACOG was presenting its “position” on a contested issue. It was not holding itself out to be neutral on the issue.
June 30, 2010, 9:48 amA. Criminal says:
Abortion should only be legal if it’s necessary to save the career of a politician.
…probably not scandolous[sic] when done by a policy staffer for poltical[sic] purposes.
Wow. Lying for political puposes is sleazier than lying to get free money, but I guess it’s A-OK if an Official Government Lawyer is paid to do it – “just following orders, er, suggestions” I ‘spose.
June 30, 2010, 9:52 amORID says:
This was a daft political move to hold onto this. It seems obvious to me that Kagan is a shrewd politico. So be it that she also happens to be a Constitutional law scholar. I’ve been against her serving on the Supreme Court on these grounds since day 1.
Of course people who want to see her confirmed won’t examine or look at the evidence that she is a political activist and has more experience in that realm than working legal issues. I’ve seen some mis-representations that: a) she provided legal advice rather than political advice (for 30% of the time she was a White House lawyer, the rest of the time a political role), b) she was only “doing what her boss wanted” (anyone willing to work policy like Kagan clearly believes in the cause, you don’t do things like she did with this statement unless you truly believe it), and now, c) all lawyers do this.
Of course in politics none of this matters because she’s “their girl”… and you can’t root against the team.
There are plenty of well-qualified judges, even “progressive” judges who are worthy of a Supreme Court nomination. Put Kagan onto an appeals circuit court, but don’t but her directly onto the Supreme Court. I would like to see the Republicans pursue these lines exclusively and stop complaining about Justice Marshall and other issues that are so political it really seems like they don’t care about other stuff.
I agree with the poster who said this process makes the Senators look dumb and the nominee smart…
June 30, 2010, 10:38 amKCrary says:
According to the House testimony of Joanna Cain (a member of the ACOG task force), as summarized by judge Kopf in Carhart v Ashcroft (p 347), the task force relied on its own expertise and did not interact with outsiders. That much, at least, seems to have been a lie.
June 30, 2010, 10:46 amPeter says:
Jon — I think you are being either disingenuous about how any authority goes about ddrafting and submitting such statements. You acknowledge that the revision is one that would be perfectly reasonable to sharpen and refine a witness’s statement, but then state that ACOG should be held to a higher standard.
Do you think ACOG violated that higher standard in this instance. Honestly, I can’t believe you would after seeing precisely what the revision is, so why won’t you come out and state your judgment? What about the revision could possibly be something that ACOG could have reason not to stand behind. If ACOG believes (as they had initially written) that the decision to have a late term abortion should be left to the patient and doctor, doesn’t that necessarily mean they believe the patient and doctor could legitimately determine that for that patient under those circumstances it is the best procedure? If not, why would they endorse leaving it to the patient and doctor? Would they endorse leaving the decision to an HIV patient and his doctor whether to treat the HIV by having the patient have sex with a virgin? Of course not (even if lots of people think that’s an effective treatment).
Really, it comes down to whether ACOG signed on to a statement that accurately reflected its opinion, not where the language came from. Suppose they’d adopted the language verbatim from a blog because they believed that language effectively expressed their position? A problem? Of course not. What if they’d borrowed it from another position paper, substituting “an intact D & X” from the procedure discussed in the earlier position paper? A problem? Of course not. It’s utterly irrelevant where the language comes from!
June 30, 2010, 11:03 amG.R. says:
KCrary wrote:
I haven’t reviewed the full opinion, but based just on the pages you cite and those immediately following, this claim appears unfounded.
The discussion in Judge Kopf’s opinion distinguishes between the proposed report that was prepared by an ACOG task force (see p. 349 of the linked PDF) and the final report that was released (see p. 351). The court noted that the language at issue was “edited” by the “executive board” (id.) but that “[t]he additional phrasing was consistent with the task force’s discussion” (id.), which accords with my point above based on comparing the drafts.
The statement you cite and describe as a “lie” refers to “the task force’s proposed ACOG Statement on Intact Dilation and Extraction” having been prepared without outside input (p. 347), not to the additional language that was added by the executive board (i.e., the language that it turns out came from the White House, and apparently from Kagan).
June 30, 2010, 11:09 amElliot says:
Anybody remember a few years back when General Patraeus presented a report to Congress and all the democrats repeatedly accused him of taking dictation from the White House? It seesm such criticism is a well established tradition, so Kagan has to take the heat now.
June 30, 2010, 11:09 amArthur Kirkland says:
Thank you for the update, Professor Adler. As is common, the libertarian-liberal alliance was right and the conservatives’ “smoking gun” was fashioned primarily of lather.
The discussion of “subornation of perjury” (and not just “regular perjury,” but even worser perjury) and ‘deceiving the courts’ and “scandal” and “smoking guns” may now continue.
June 30, 2010, 11:12 amDean from Ohio says:
Elena Kagan is merely quoting the quasi-religious article of faith of bloody feminism: preserving a woman’s “health” includes mental or emotional health, as the woman or her politician defines it. So, to “preserve the health” of the woman is euphemism for saying that “a woman has an absolute right to a dead baby.” The fact that the baby could be born and given to someone else is worse than irrelevant, it is inconvenient and might remind the woman of what she wants to forget.
All we’re missing here are the cherry-red, superheated metal arms of Molech.
June 30, 2010, 11:21 amJaimeInTexas says:
Description
Intact D&X, or partial birth abortion first involves administration of medications to cause the cervix to dilate, usually over the course of several days. Next, the physician rotates the fetus to a footling breech position. The body of the fetus is then drawn out of the uterus feet first, until only the head remains inside the uterus. Then, the physician uses an instrument to puncture the base of the skull, which collapses the fetal head. Typically, the contents of the fetal head are then partially suctioned out, which results in the death of the fetus and reduces the size of the fetal head enough to allow it to pass through the cervix. The dead and otherwise intact fetus is then removed from the woman’s body.
Is that clear enough?
BTW, what is health of the mother? A headache?
June 30, 2010, 11:30 amJonathan H. Adler says:
Peter –
I think a professional organization drafting what purports to be a neutral expert statement about the state of medical science should be held to a different standard than an expert witness preparing a statement for trial. I think a professional organization drafting what purports to be a neutral expert statement about the state of medical science should not take direction or editorial revisions from the White House. The initial statement made clear that ACOG opposes legislative interference with a doctor’s determination of what the “best” procedure is in a given instance, but it offered nothing to suggest that such autonomy is necessary to safeguard the patient’s life or health, and yet that is the implication of the added language. Does it matter? I think it does. I also think it quite clear that had the provenance of the language been disclosed in the various legal cases challenging PBA bans, it would not have carried the same weight in court.
JHA
June 30, 2010, 11:34 amKen says:
Which is why most people think of lawyering as a gutter profession. I mean if the ethical standards of lawyers is such that writing conclusions as a White House advisor for a third party as testimony before the Court, even if that party was agreeable to it, is acceptable then lawyer’s ethical standards are on the level of used car salesmen. The issue here is Kagan’s actions and not ACOG’s (as bad as they may be). Kagan’s actions speak of someone who would say or do anything to get a particular outcome. For instance, why did she even review a draft in the first place? She wasn’t employed by ACOG. As a common man, placing her on the Supreme Court does not engender faith in the legal system of the United States.
June 30, 2010, 11:34 amtheobromophile says:
Glad no one says anything really anti-science and outrageous like, “If the kid didn’t already die from having a doctor stab it in the head with a pair of scissors, we remove its brains with a vacuum, just to be sure.”
Who the hell doesn’t oppose this?
June 30, 2010, 11:35 amrmd says:
Just for the record, that’s not me, the “rmd” who usually comments on gun- and zombie-related topics. Not that I necessarily agree or disagree with this rmd; this is just the sort of topic where I tend to keep my big mouth shut.
June 30, 2010, 11:37 ambyomtov says:
G.R. nails it rather well. This is utterly meaningless (as we might have guessed from those pushing it – NRO, Reynolds, Hinderaker – there’s a crew).
Look. Just because the procedure is never the only option that might save the life or health of the mother does not mean it will not be the best option in some cases. The document, as quoted by G.R., pretty much implied that before the change. What else can it mean to say:
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.”
And of course that means that in some cases, JHA notwithstanding, the procedure is the best way to safeguard the mother’s well-being, and the use of other methods unnecessarily imperils her.
It’s not necessary to take an airplane to get from NY to LA. You could walk or drive or take the bus. But it will quite often be the best way.
June 30, 2010, 11:41 amA. Zarkov says:
It’s never acceptable for a scientific expert to allow himself to be compromised– even slightly. The expert should never permit substitute language, even if it’s better worded. Your opinion must be exactly that, and you must be the one who writes that opinion. The words must be your words. Scientific people hold themselves (or they once did) to higher standard than mere lawyers.
I see the need for scientific professional organizations to strengthen their code of ethics.
The people here making excuses for ACOG and Kagan are despicable.
June 30, 2010, 11:52 ambbbeard says:
I prefer the euphemism I found in the ACOG’s official statement: “brain sucking abortions”. I think that’s even more easily understood.
June 30, 2010, 11:54 amJaimeInTexas says:
I am a father of 4, present at their birth. I can tell you from my observations and in conversation with my wife that the baby’s shoulders are as much a “hurdle” as the baby’s head. If the baby’s shoulder are already outside the vagina, as in the “procedure”, whatever danger there was to an acutal live birth is already past.
I am not squeamish: I have worked as a veterinary assistant, including assiting in surgery; I have performed First Aide on myself by cleaning paint chips out of 2 cuts (that required a total of 7 stitches); I have assisted in First Aid to others; etc.
It is not the gross factor of a medical procedure, it is the absolute grotesqueness of murdering a baby under the guise of an non-existing “medical necessity”.
It is not the choice of different routes to a destination. It is that one route also requires mowing over a pedestrian. It is more than just a choice of options.
June 30, 2010, 11:58 amA. Zarkov says:
It is unethical unless the coaching is strictly limited to form and substance. By “form” I mean the mechanical aspects of presentation as divorced from content, such as dress.
Your statement shows that you lack ethics. Don’t tell me everyone does it, that’s no excuse.
June 30, 2010, 11:59 amChris says:
I now demand apologies from those who questioned my assessment of Adler as a “political hack” in a prior thread. Indeed, he virtually admits it himself in his post by relying upon Powerline, Glen Reynolds and NRO. Just as he did with his prior post on Kagan and Bork, he is now vigorously backpedaling once it is shown that his post was fundamentally misleading. Interesting that his posts are always misleading in supporting a RW conservative viewpoint. He never seems to make a “mistake” the other way.
June 30, 2010, 12:07 pmmark f says:
So what do you mean by “substance”?
June 30, 2010, 12:10 pmbbbeard says:
I see that several people have voiced the same thought, but I’ll pick yours to quote since it’s the most recent ;-)
While I agree with the distinction you make here regarding Kagan’s re-formulation, doesn’t this require us to at least ask the question: Is partial birth abortion ever the best option?
The ACOG statement does not go quite this far. They say the doctor & patient should be allowed to decide. And in the weasel-worded statement written by Kagan, it “may be the best or most appropriate”. This is not the same as saying there actually are circumstances in which it is the best option.
My guess is that the truth of that statement hinges on the meaning of “may”. It could be the case that it is never the best option, but in some unforeseeable, unprecedented, theoretical circumstance, it could be. Or it could mean that there are many circumstances where it is the best option, but it’s just the luck of the draw, and we shouldn’t prevent doctors from using this handy technique.
My own anecdotal experience contradicts the latter interpretation. But that should bear no weight in this argument.
If the latter interpretation is true, however, why not say so? Why wouldn’t the ACOG (i.e. Kagan) write the statement, “There are medical circumstances for which intact dilation and extraction is the best option”? I believe they didn’t write that because it’s not true. But you may have a different interpretation.
June 30, 2010, 12:13 pmA. Zarkov says:
Everything else.
June 30, 2010, 12:19 pmzuch says:
Wow. Just “wow”. That’s a ‘smoking gun’, all right. I doubt that anyone else could have come up with such a sentence. And we have thus only Kagan to thank. Had it not been for this careful formulation, doubtless, Stenberg would have turned out differently. Thank goodness for clever lawyers like her….
Cheers,
June 30, 2010, 12:22 pmGreg says:
What are the “legal” issues in this instance? If this report is accurate; as a member of the Bar, doesn’t she have a legal duty to speak out when she is aware of a falsehood being used by sitting Justices as foundation for their opinions?
June 30, 2010, 12:23 pmBleh says:
JA, what are your feelings on Kagan’s response to this issue during her hearings? If you missed it, she basically said that ACOG had previously represented two things to the Clinton administration: 1) that they could think of no circumstance where the procedure would be the only option to save the life or preserve the health of the woman, but 2) the procedure may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman. When ACOG indicated that it would make a statement only speaking to the first point the administration contacted them to make sure that they also acknowledged the second point.
In others words, they didn’t make up the point and put it ACOG’s mouth, they just made sure that ACOG didn’t give a single side of the story. Is that improper?
June 30, 2010, 12:23 pmmark f says:
So if it’s ethical to coach on form and substance, as per your comment above, which entails “everything” that’s not form, how on earth is it unethical to coach on what language will most persuade judges to to the client’s position?
June 30, 2010, 12:29 pmA. Zarkov says:
Why should we believe her? Is she under oath?
June 30, 2010, 12:32 pmA. Zarkov says:
No. It might be ethical to coach on just form, but never on substance. Let me repeat. Form pertains to the mechanical aspects of presentation such as dress in a personal presentation. In a report, form would pertain to something like the choice of typeface, placement of page numbers, use of end notes or footnotes. But never graphics as graphics is part of the substance of the report. Not even the colors used in the graphics as we know from research that primary colors distort human interpretation of content. Of course all language must be the language of the expert and no one else.
June 30, 2010, 12:39 pmmark f says:
This is what happens when I revise as I type and don’t proof-read. If only this blog allowed me 5 minutes to edit my comments.
Anyway, you said it’s only ethical to coach on form and substance. You then defined “substance” as “everything else” that’s not form. Yet you also state that it’s unethical for a lawyer to advise a scientist on how to best word an opinion. How is that consistent?
June 30, 2010, 12:39 pmzuch says:
I get tired of this misrepresentation. It was the Republicans who had a dim understanding of what the meaning of “is” is. Clinton was nice enough to point this out for them, and alert them to the fact that tense is a characteristic of English verbs. Rather than responding to the intended tense rather than the actual question and putting himself in jeopardy of a perjury charge, or responding truthfully to the question as presented, but also putting himself in jeopardy of an ignorant charge of “perjury” for doing so, he demurred, and let the questioners know that they were probably asking the wrong question. He had no duty to do so (see, e.g., the Bronston case), although such clarification might have been politically expedient under the circumstances. Instead, the Republicans ignorantly (or dishonestly) vilified him for doing this, when the fault and ignorance, if any, was theirs….
Cheers,
June 30, 2010, 12:41 pmPaul Horwitz says:
I have already said that despite some points of genuine disagreement between us, I think Jonathan has offered reasonable arguments and done a fair job of cabining them. No need to say more, perhaps, but I do want to register a note of polite disagreement with Zarkov’s comments. Let us all agree that a scientific expert should never allow herself to be compromised — I think I already said that, in fact. That doesn’t strike me as being the same as saying that a scientific expert should “never permit substitute language,” even if it is equally accurate and, for purposes of this argument, not at all misleading. Imagine an expert who uses a phrase in Latin, or expresses the accuracy of DNA evidence using a fraction. The lawyer asks the expert to use an English phrase or to express the fraction as a ratio. I find it hard to conclude that this is unethical, for the expert or the lawyer. Similarly, I think your form/substance distinction, although certainly it has something of value to the extent it is getting at the “never compromise” point, cannot be maintained as bluntly as you suggest. I see little difference between the examples I’ve just given and a lawyer who suggests to a scientist who likes to wear jeans all the time that he might want to dress in a suit and tie in court. This is a formal suggestion, but of course it is understood to have an impact on the witness’s credibility and authority, whether it should or not. Expressing the expert’s number as a ratio rather than a fraction serves the same purpose, inasmuch as it makes the number easier for a jury or judge to understand, but it is also a “formal” change.
Of course you are free to disagree, or to suggest modifications to your rule. But I think there is at least enough room for disagreement to suggest that contrary conclusions are neither blindingly obviously unethical or “despicable.” And again, not that this matters, but I think your bluntly stated rule suggests that Jonathan himself has stated a “despicable” view — and I, for one, even while disagreeing with him in part, don’t thnk he has.
June 30, 2010, 12:42 pmbyomtov says:
bbeard,
I see your point, but what I don’t see is how Kagan’s wording differs in its implications from ACOG’s original sentence, which is just as qualified as Kagan’s.
Given the huge variety of situations which can arise, I think it’s entirely plausible for ACOG to avoid saying, as you put it,
“There are medical circumstances for which intact dilation and extraction is the best option”
Instead they propose to leave it to the doctor’s discretion, on the sensible basis, no doubt, that the doctor is familiar with the particular circumstances, is able to make a judgment, and should be allowed wide latitude in doing so. They want to avoid restricting the physician’s options in any single case by trying to specify under what circumstances intact D&X is best.
June 30, 2010, 12:44 pmPeter says:
Jon — You write: “The initial statement made clear that ACOG opposes legislative interference with a doctor’s determination of what the “best” procedure is in a given instance, but it offered nothing to suggest that such autonomy is necessary to safeguard the patient’s life or health, and yet that is the implication of the added language. Does it matter? I think it does.”
(1) Is there any other reasonable explanation for ACOG’s initial statement?
(2) If the revision more pointedly emphasized something ACOG believes (and that, for example, you don’t infer from the original statment), why does it matter where the language came from?
What you’re saying is that if the White House says to ACOG, “Hey, we think you mean that sometimes a doctor and a patient might determine the procedure is the best one for the patient and some people here (who read like you do, Jon) don’t think that meaning is expressed in this sentence,” that ACOG is not entitled to adopt the change.
That is to me nonsensical.
June 30, 2010, 12:46 pmzuch says:
Well, then it’s a good thing that the statement didn’t say “A so called ‘partial-birth abortion’ has to be used to save the life of or protect the life of the mother” (and in fact said: “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”). It may, however, be “the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman”.
Cheers,
June 30, 2010, 12:50 pmAlinka says:
How is there “no evidence” that the medical science experts didn’t believe the substance of Kagan’s rewrite? She was rewriting earlier language that said precisely the opposite scientifically, and her objection was that this earlier language would be catastrophic to the Clinton policy.
June 30, 2010, 12:51 pmJoey says:
I’m just glad that Obama health care reforms made it through, or at least some semblance of it, and abortions will be covered eventually: http://lawblog.legalmatch.com/2010/04/06/%e2%80%9cthe-law-of-the-land%e2%80%9d-obama%e2%80%99s-new-health-care-reform-law-sets-off-a-variety-of-responses/
June 30, 2010, 12:52 pmBleh says:
Please, the day that you have an opinion that does not consist of “all liberals are scum,” please let me know and maybe I’ll consider taking what you have to say seriously.
June 30, 2010, 12:54 pmyankee says:
It did? The sentence originally said “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.” It was rewritten to say “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.” How is that “precisely the opposite”?
June 30, 2010, 1:06 pmElliot says:
Interesting standard. Can we apply it to waterboarding?
June 30, 2010, 1:18 pmNowMDJD says:
I am a gynecologist. I am unaware of any situation in which the procedure popularly known as “partial birth aboution” has a significant safety advantage over all other procedures, let alone a situation in which it is necessary. Furthermore, I cannot conceive of a hypothetical in which this would be true. Can anyone provide a counterexample?
On the other hand, the standard form of mid-trimester abortion, “dilatation and extraction,” causes far more pain to the fetus, assuming the fetus experiences pain.
I’m not taking a stand on abortion here. My only stand here is that public policy should be based on facts.
June 30, 2010, 1:24 pmBill Dalasio says:
I’ve seen a lot of people suggest that this is a scandal for ACOG, but not Kagan. As, I’m not a lawyer, can someone explain to me how a body judging her fitness for the Supreme Court should not view this as the equivalent of a lawyer coaching the witness?
June 30, 2010, 1:25 pmBill Dalasio says:
And does that depend on what your definition of the word “is” is?
June 30, 2010, 1:32 pmA. Zarkov says:
Of course one can always select a benign example where the language substitution won’t create a distortion. But allowing substitution opens the door for mischief. The expert’s language must be his own. If he uses technical terms tell him to insert a glossary in the report. He should have done that anyway.
June 30, 2010, 1:32 pmA. Zarkov says:
When and where did I say “all liberals are scum.” You just don’t want to answer the question, so you fling insults. Why should we take anyone seriously who refuses to answer the most basic question about the matter at hand?
June 30, 2010, 1:36 pmmark f says:
“Hi, we’re ACOG. We have a problem we need help with. We need to file this legal brief that says something like, ‘In our opinion, D&X abortions may sometimes be necessary,’ but every time we sit down to write it comes out, ‘never before and never in the future will D&X be necessary in any case.’ Can you help us out?”
Yeah, that sounds likely.
June 30, 2010, 1:36 pmzuch says:
Why? Did, for example, the government have a “duty” to argue in favour of the segregation in Bolling v. Sharpe?
Is “obstruction of obligation” some kind of crime?!?!?
I understand that Dubya defenders think that it is the province and duty of executive branch lawyers to defend the Dubya maladministration’s unlawful acts (such as torture and wiretapping), but I don’t see that such is an ethical obligation … far from it, I think it is their duty to see that the law is carried out as they see proper. If you want to talk about “obstruction of obligation”, you might want to consider the “obligation” of the executive to conform with duly passed laws, and the ethics of those that worked so hard (albeit so poorly) to obstruct that … first.
Cheers,
June 30, 2010, 1:39 pmJonathan H. Adler says:
To reply directly:
(1) – Yes. There are things other than life or health that could make a procedure in the best interests of a patient or otherwise appropriate, such as convenience, time, discomfort, etc. I’ve had multiple discussions with doctors about potential courses of treatment where the trade-offs involve factors other than life or health.
(2) – When an organization presents something as the result of an independent task force’s deliberations, it is certainly relevant where the language came from. This is why, in some of the PBA ban litigation, so much time was spent looking at the provenance of the language. I also don’t think that the scenario you describe captures the tone of the relevant memos, which were focused less on ensuring the accuracy of the statement and more on its political implications.
JHA
June 30, 2010, 1:39 pmtheobromophile says:
Yankee: the issue is the distinction between ACOG’s scientific and policy-based conclusions. From a medical/scientific perspective, ACOG concluded just what NowMDJD said: partial-birth abortion isn’t necessary, nor even significantly safer, for a woman. The “Notwithstanding” language indicates that their policy preferences are made despite the medical issues, not because of them. (Nothing wrong with that; as NowMDJD indicates, the other options can be just as morally problematic, so there could be a decent policy reason for keeping this in place.)
Much as people are entitled to their own opinions, not their own facts, the problem with Kagan’s re-write is that it disguises her own opinion as medical fact. As a country, I think we’re all entitled to look through the science and decide for ourselves what policies work best in light of them, and that process is short-circuited when opinions are heralded as facts.
June 30, 2010, 1:41 pmzuch says:
How so? They gave an opinion. How is that “neutral”? Isn’t the only “neutral” testimony something like “I don’t know” or “I have no expert opinion”? And why would they want to hold themselves out as such a “neutral”?
Cheers,
June 30, 2010, 1:43 pmMonkeyEsq says:
They should view this as the equivalent of a lawyer coaching a witness, and there is nothing wrong with a lawyer coaching a witness. Lawyers frequently speak with witnesses ahead of testimony, even draft affidavits on behalf of witnesses – this is standard procedure. Lawyers typically will encourage witnesses to bring up facts that are helpful for their clients. There is only a problem if a lawyer starts asking a witness to lie.
June 30, 2010, 1:44 pmJaimeInTexas says:
“assuming the fetus experiences pain” ??? Assuming ???? At 20 weeks!!!
June 30, 2010, 1:45 pmKCrary says:
Mea culpa. I missed the fact that Kagan’s language was added by the ACOG executive board, and not by the task force. That doesn’t really cast ACOG in a better light, but Dr. Cain is off the hook.
In light of the fact that the key statement was added by the ACOG executive board, I wonder why Judge Kopf made such a big deal about how the task force operated without outside interaction.
June 30, 2010, 2:11 pmleo marvin says:
As Anderson explained in the other thread, you’re conflating hackitude with bias. That Adler credulously repeats what he reads in NRO but not, say TPM, reveals his bias, which we all have to one degree or another. That he issues corrections when his initial trust is shown to have been in error distinguishes him from a hack.
June 30, 2010, 2:26 pm~aardvark says:
That’s complete horseshit! SG has no obligation to defend a state statute, nor does anyone in the administration. In fact, WH routines takes position contrary to state claims not matter which party is in charge. Things are different when federal law is implicated, but it was not the case here.
June 30, 2010, 2:40 pmzuch says:
Fallacy of bifurcation.
But if the ACOG had meant either of these, they should (and probably would) simply have said so. They did not. They said something else.
Cheers,
June 30, 2010, 2:46 pmDilan Esper says:
My terminology rant aside, this is a procedure that about 85–90% of Americans oppose, except in the most dire of circumstances; obviously, that number includes over half of pro-choicers. Although the Constitution should not be interpreted to be a measure of popularity, we can certainly expect that our judges will not thwart the attempts of the people to affirm human dignity. The best analogy that I can think of at this late hour is waterboarding or torture. You can debate who is protected by the Constitution, and whether circumstances in our society justify these objectively terrible things, but I think that we are all squeamish about a person who finesses away the debate. This is even more of a concern when the person will be appointed, for life, to the position of a neutral arbiter of some of our toughest debates.
1. Kagan won’t change the vote count in Carhart.
2. If the Republicans thought appointing Supreme Court justices who oppose abortion was a winning issue, they would run on it in Presidential elections. Instead, their candidates barely mention the issue and leave it for the platform committee. Obviously, no matter how the public feels about partial birth abortions, the overall valence of this issue plays out a lot differently than you think it does.
June 30, 2010, 2:55 pmzuch says:
What if someone decided that .357 revolvers were not an appropriate method of defence against home invasion, and decided to ban them, seeing as some authorities could be found that said that there’s no circumstances that could be identified where such a revolver is the only method for such defence, and others could be found that claimed that other available alternatives are just as effective. And after that, maybe .223 long rifles next….
Cheers,
June 30, 2010, 2:58 pmToby says:
I would argue that there is a difference between some lawyer working for you or for me suggesting “improved wording” and note from the White House suggesting “improved wording”. It moves beyond good lawyering to abuse of office…
June 30, 2010, 3:06 pmzuch says:
Of course. Scientists must stand firmly on their own two feet, and immunize themselves carefully from any thoughts of others, lest they be contaminated and/or prejudiced. They are incapable of telling which are their actual thoughts and therefore must live in isolation so as to avoid contamination or any hint or suspicion that their thoughts are not their own but rather someone else’s. Which explains their lousy sex lives, I’m sure. “If I have seen further it is by standing on the shoulders of Giants” notwithstanding.
Cheers,
June 30, 2010, 3:07 pmtheobromophile says:
Dilan: why would it matter if Kagan would change the vote count or not? Surely, we are entitled to a jurist who is good on her own merits, not as equally bad as her predecessor.
What’s your point? That, come hell or high water, I’m a pro-life feminist so you’re going to find some way to tell me that I’m wrong, wrong, wrong and need to learn my place?
June 30, 2010, 3:46 pmGuest14 says:
But why? This strikes me as a very strange rule. You’ve provided no support for it, and I can’t help but notice that in this discussion, it’s very politically expedient rule for you. Could you maybe explain why you think it’s true?
June 30, 2010, 3:48 pmCynical says:
D&X, which is the alternative to ID&X, involves cutting the fetus into pieces in utero. Where is the human dignity in this? If you think a successful ban of ID&X would not be followed by an immediate ban of D&X, you are dreaming.
Conventional D&X necessarily involves a lot of messing around inside the uterus with instruments, and things can go wrong; ID&X can easily be the best of a bad set of options. Congressional busybodies on the conservative side are just trying to regulate away the right to abortion in the same way the liberal busybodies regulate away the RKBA. While I do think there is some small role for Congress in the way America has and uses arms, it has no business “playing doctor”.
June 30, 2010, 3:56 pmJohn D says:
It was just in the news. Fetuses might not experience pain until past 24 weeks.
June 30, 2010, 4:06 pmNew York Magazine
The Guardian
~aardvark says:
Yet more organic fertilizer. The original statement was that the committee found no cases where it was the only option. The report said nothing with respect to it even being or not being the best option. ACOG clearly intended to say that, in their opinion, although D/X was not the only option, sometimes it may be the best option. Since they did not cite any cases where this is true, the statement lacked the air of authority. This is where Kagan came in. She rephrased what appeared to be a vague expression of personal preference into a strong statement of professional opinion, which is what would have been required from the group. The comment that the original statement was a “disaster” meant exactly that–it did not communicate the professional standard which, in this case, was to let doctors and not legislators decide what is the best medical approach. There is nothing controversial or sinister here–both ACOG and Kagan were doing their job, although Kagan appears to have done it better. She neither altered nor substituted her own opinion for scientific findings, which is what the whole Coffin-Reynolds cabal has been suggesting–she simply performed her job as a lawyer.
June 30, 2010, 4:22 pmbbbeard says:
?
There is already a federal law, upheld by SCOTUS, banning partial birth abortion. AFAIK there has not been a follow-on general ban on dilation and extraction. So are you saying that the current federal law is not “successful”? Or did you just not know that partial birth abortions are illegal? I’m just wondering what point you’re trying to make.
BTW, a number of commenters here seem to believe that “intact dilation and extraction” is the same as “partial birth abortion” (and some even prefer the formal jargon over the latter, which is perceived to be tendentious). However, the two terms are not exact synonyms. An intact D&X to remove a dead fetus is perfectly legal.
June 30, 2010, 5:37 pmDilan Esper says:
why would it matter if Kagan would change the vote count or not? Surely, we are entitled to a jurist who is good on her own merits, not as equally bad as her predecessor.
It matters if you are thinking that she has this way out of the mainstream view on partial birth abortion. It was no more out of the mainstream than her predecessor.
Look, Democratic presidents are going to appoint liberals to the Court. That’s not controversial. When your guys are in office, they shove conservatives down our throat too.
What’s your point? That, come hell or high water, I’m a pro-life feminist so you’re going to find some way to tell me that I’m wrong, wrong, wrong and need to learn my place?
How do you ever get that from my statement? Look, you aren’t a feminist, but it’s not because you are pro-life, rather it’s because you are a member of the religious right who doesn’t accept most of the major tenets of modern feminism and the need to preserve the room for the choices that other women made and you reject. But that wasn’t my point.
My point was if the public really thought it was a terrible thing that Obama would be appointing liberals to the courts (including liberals on the abortion issue), it would be straightforward enough for Republicans to run on this issue, point out partial birth abortion as a key example, and win elections. In fact, the public is perfectly fine with Democrats appointing liberals on the abortion issue to the Court, even though I very much concede your point that the public is generally against partial birth abortion. I would suggest to you that if Republicans really made an issue of this, the problem would be that it would call attention to the fact that Republicans want to appoint justices who are not only anti-partial birth abortion, but anti-Roe, and Roe is actually quite popular.
So the valence is that the public may be anti-partial birth abortion, but that still doesn’t mean you can get much traction opposing a Supreme Court nominee on that ground.
June 30, 2010, 5:44 pmbbbeard says:
There is no human dignity in abortion, at least not for the fetus.
Consider our notions of capital punishment. Are there humane and inhumane methods of execution? Either way, the convict winds up dead. Does is matter to the corpse if his head is chopped off and put on a pike, pour encourager les autres? Or if he is drawn and quartered? Or if he is strapped to a table and injected with lethal chemicals? Somehow we have decided that the first two options are not civilized, but we can live with the third. In much the same way, we have decided as a nation that we cannot tolerate the medical technique of partial birth abortion, which is just inches short of infanticide, but that other methods are allowable.
FWIW some abortion providers have reportedly taken to injecting the fetus with lethal chemicals (a concentrated saline solution injected into the heart) prior to abortion. Most people would say this is more humane than just starting to cut the fetus up.
June 30, 2010, 5:53 pmMichelle Dulak Thomson says:
Dilan Esper,
[to theobromophile:]
Look, you aren’t a feminist, but it’s not because you are pro-life, rather it’s because you are a member of the religious right who doesn’t accept most of the major tenets of modern feminism and the need to preserve the room for the choices that other women made and you reject.
Enh. I say that theobromophile is a feminist. Not just because she says so herself (though that ought to be enough — we are “in the business of believing women’s stories,” are we not?). She knows her own mind and speaks it. She’s deferential to no one. If (per Rebecca West) you only get called a feminist if you express sentiments that differentiate you from a doormat, tbp self-evidently deserves to be called a feminist. I will bet that she won’t allow you to wipe your boots on her.
June 30, 2010, 6:28 pmThe handwriting is on the wall – but it’s not mine! — The Curt Jester says:
[...] religious believers are at war with science? ESCR was a prime example of that meme. One of the defenses of Kagan’s revisions to the ACOG statement is that they really were just editorial, that they [...]
June 30, 2010, 6:40 pmnoahp says:
This is not a case of “politization of science”…its a case of medical politics excusing the equivalent of “drawing and quartering” of a human being who can definitely feel pain.
There are no clinical trials regarding this issue. The OB/GYN that devised the procedure is hopefully burning in Hell.
June 30, 2010, 6:41 pmAnatid says:
There are so many different definitions of feminist, let’s please not argue about which flavor to apply to who …
Also: can we please cut out the emotional appeals? “Brain sucking” is a horrible mental image, which makes it really easy to forget that the brain being destroyed does not yet have most of the personhood-related developments that make you, you. I could play the other side of the emotional appeal and write a florid piece about bodily integrity and powerlessness, but neither will help the discussion.
Is there dignity in having a dead, partially-formed child pulled out of your uterus? This would be a surprise to me. Every woman I’ve known who had an abortion was glad she’d chosen to have the procedure, but still found it to be an unpleasant one.
June 30, 2010, 6:44 pmSaintCroix says:
You kill one baby, you’re a baby-killer. Most people think that’s kinda bad. If a Supreme Court Justice went out into the street and killed one person, on a percentage basis that’s really low.
There have been 46,000,000 abortions since 1973. If the Supreme Court is right about 99% of them, and pro-lifers are right about 1%, well, do the math. Is 460,000 homicides bad? Is one homicide bad?
June 30, 2010, 6:53 pmMichelle Dulak Thomson says:
Anatid,
“Brain sucking” is a reasonably neutral description of what happens in an ID&X. Sure,
the brain being destroyed does not yet have most of the personhood-related developments that make you, you.
Still, it is a brain, and it’s still being vacuum-suctioned out. How is describing what actually happens an “emotional appeal”?
June 30, 2010, 6:56 pmAnatid says:
There are plenty of ways to manipulate language to alter emotional content while keeping the factual content the same.
Brain sucking.
Removal of neural tissue.
Deflation of the skull via extraction of contents.
You’re telling me all three terms have the same emotional weight? Maybe I’m the odd one out here, but the first item on that list gives me the jeebies, and the others conjure a dry, medical procedure to mind.
“Rape” is more emotional than “nonconsensual intercourse,” or “anguish” is more emotional than “extreme discomfort,” or a “vehicular collision” is less emotional than “two unsuspecting souls torn apart by flying metal and smeared across three lanes as asphalt candy.”
But they’re all what actually happens.
June 30, 2010, 7:07 pmElliot says:
Reminds me a bit of a governmant official writing up a report recommending a drilling moratorium, then claiming a panel of experts made the recommendation.
Or UN officials issuing a report claiming millions of Bangladeshis would perish as the Himalayan glaciers melted away.
Or basing EPA orders on that same UN climate report.
June 30, 2010, 7:19 pmMichelle Dulak Thomson says:
Anatid,
Brain sucking.
Removal of neural tissue.
Deflation of the skull via extraction of contents.
You’re telling me all three terms have the same emotional weight? Maybe I’m the odd one out here, but the first item on that list gives me the jeebies, and the others conjure a dry, medical procedure to mind.
I am not telling you anything about “emotional weight.” People who can, well, read do know what “neural tissue” is, and have some vague idea what are the “contents” of the skull.
June 30, 2010, 8:20 pmAnatid says:
Okay, so when you used the word “neutral,” if you weren’t talking about emotional valence, what were you talking about? Switzerland?
Yes. And being acquainted with a piece of information on a cognitive level is not the same as having an emotional, visceral understanding of it. Spanish has two different verbs for “to know”: saber and conocer. Saber is to have factual knowledge of something. Conocer is to be acquainted with and familiar with something. It’s a shame English doesn’t bother to make the distinction.
I used the example of sexual assault because I’ve noticed in other threads that many VC commentors show remarkably little empathy towards victims of negative sexual situations that fall short of the definition of rape. Knowing, cognitively, that such events occur is a completely different experience from personally knowing someone who has been in such a situation. Even though the cognitive knowledge is the same in either case, the emotional weight of the two is quite different.
As someone who didn’t grow up in the healthiest of families, I can assure you that learning to manipulate language to alter someone else’s perceptions without ever telling a lie is quite an art, and can be quite compelling. It’s the same foundation upon which a huge portion of media, particularly advertising, thrives. You’re arguing that a multibillion-dollar industry doesn’t exist.
To put the nail in this coffin, I’d also like to point out that this cognitive-emotional rift can be found in the physiology of the brain itself. The brain has multiple pathways for evaluating information, and the fast, emotional pathway can function largely independently of the slower, cognitive, logical pathway, and the two only compare notes at the end, hundreds of milliseconds later. Although they interact, they’re not the same.
Words have power.
Usted lo sabe, pero no lo conoce.
June 30, 2010, 8:59 pmLaura(southernxyl) says:
Well, I used to like Kagan.
An earlier post came up about her ghostwriting for somebody and I didn’t like that. I don’t like this at all. I don’t think ACOG presents itself as a partisan body. It has no business letting anyone draft a statement in support of a political effort. She shouldn’t have offered one.
As to PBA, one reason I’ve seen women offer that they wanted one was that late in the pregnancy, they discovered that their fetus had some sort of defect that would have caused it to die shortly after birth. They didn’t want to go through that. I can see a doctor who doesn’t view human life with any sort of respect thinking that that makes PBA the “best” option. The problems here are that (1) other women make the choice to let their babies have what moments they can, so clearly this is not unthinkable, and (2) it could then be thought the “best” choice (and many do think this) that an imperfect baby (Down or whatever) should be allowed to die from easily treatable health issues because this is just “best”.
I don’t want to be unsympathetic to women in this situation. I haven’t been there. I’m sure it’s devastating for many. The point is simply to say that what one person would consider “best” might not be “best” to another person. Many women whose prenatal tests reveal Down syndrome in their unborn report that their doctors immediately want to schedule their abortions as if it is unthinkable that they do anything else. I personally consider this to be heading down a bad road.
June 30, 2010, 9:22 pmAnatid says:
Laura, just to be specific, Down’s syndrome is generally not fatal shortly after birth. A better example might be Tay-Sachs disease, a genetic condition that causes the baby’s brain to deteriorate until fatal, causing a life to be very short and very miserable.
Down’s kids, on the other hand, can have long, healthy, and happy lives. A Tay-Sachs kid literally doesn’t have a chance.
They’re two different ethical situations, and for many people, they have two different answers.
June 30, 2010, 9:28 pmMichelle Dulak Thomson says:
Anatid,
Oh, my.
Okay, so when you used the word “neutral,” if you weren’t talking about emotional valence, what were you talking about? Switzerland?
I think that I meant that if a procedure in fact involves sucking a fetus’s brains out, describing said procedure as involving sucking a fetus’s brains out isn’t honestly slanting the issue. We are talking about making a hole in the fetal skull, and then suctioning out the contents so that the skull can be collapsed. Can’t we accurately describe what we’re doing? Are we so ashamed of what we are doing that we can’t put “sucking” and “brains” in the same sentence?
FWIW, I spent some years learning Spanish (in high school, in the early 80s); the saber/conocer distinction is not exactly new to me.
June 30, 2010, 9:55 pmJersey McJones says:
“Partial birth abortion” is not even a recognized medical term by the ACOG and they’ve always been against the ban. It doesn’t matter whose wording they used. The same thing would have been asserted. And all of a sudden you guys care about outside entities writing law? Really? So, should Dick Cheney face charges for the Bush-years energy bills?
JMJ
June 30, 2010, 10:25 pmLaura(southernxyl) says:
“They’re two different ethical situations, and for many people, they have two different answers.”
Not for everybody. Here
Not for me either, but I prefer to err, if err it be, on the side of life. Everybody now living is going to die. It can’t be prevented, ultimately, even if we want to. I see no compelling reason to run after the grim reaper – he’ll get his in due course, always.
June 30, 2010, 10:33 pmMichelle Dulak Thomson says:
Anatid,
Laura, just to be specific, Down’s syndrome is generally not fatal shortly after birth.
Well, there are nasty defects to the gastrointestinal tract associated with Down’s. Try Googling “Infant Doe,” for a case of a Down’s infant whose parents refused surgery which would have made it possible for the baby to take in food. The child starved to death.
June 30, 2010, 10:40 pmDilan Esper says:
As to PBA, one reason I’ve seen women offer that they wanted one was that late in the pregnancy, they discovered that their fetus had some sort of defect that would have caused it to die shortly after birth. They didn’t want to go through that. I can see a doctor who doesn’t view human life with any sort of respect thinking that that makes PBA the “best” option.
I’m not going to defend partial birth abortions specifically, but as a general matter, learning that the fetus has a severe and unrecoverable condition is actually a very compelling reason for a late-term abortion. I certainly would trust doctors’ and women’s judgment on this issue. And the real problem then is that just about any late-term abortion is going to be gruesome.
June 30, 2010, 10:59 pmAnatid says:
To me, these two lines have differing emotional valence. For you, perhaps they are the same. This is because every human being’s methods of evaluating semantic information is different, including the extent to which any given topic will be emotional. Maybe the latter phrase is as horrifying to you as the former phrase, or maybe the former phrase is as impassive to you as the latter phrase; I don’t know.
Can you grant, at least, that for some of us, the emotional impact of these two phrases is different?
I could say the same for half a dozen other activities associated with the opposite end of the political spectrum, that folks aren’t eager to talk about. Kinda like how the Virgin Mary is “great with child” far more often than she’s “preggers.”
For you, maybe this description seems “accurate” and unvalenced. But not everyone shares your perceptions and your beliefs. In my mind, for example, legalization of SSM carries connotations of equality, liberty, privacy, and dignity, and if I read a sentence describing SSM with that language, I probably wouldn’t notice any valence – but other VC commentors sure would.
It’s incredibly difficult to find a topic which can be “accurately described” in a way that will be unvalenced for all readers. Even a topic like accounting might be boring for some, a reminder of a hellish job for others, and a fascinating opportunity to manipulate money for others still. Do you think a highly charged topic like late-term abortions can be described in such a way that everyone will have identical feelings in response?
Then presumably you understand the concept I am trying to convey here?
June 30, 2010, 11:17 pmAnatid says:
Thanks for the references, Laura and Michelle. Interesting reads.
June 30, 2010, 11:29 pmElliot says:
You just used English to make the distinction.
June 30, 2010, 11:45 pmMichelle Dulak Thomson says:
Laura (southernxyl),
Thanks for linking the Philip Becker case. I knew of Becker the same way I knew of Infant Doe — via George Will. Strange that it takes one of those famously callous conservative types to point out that starving infants to death is wrong; that denying children life-saving surgery is wrong.
July 1, 2010, 12:16 amwhit says:
all this talk about the language to use in describing it, ignores the more accurate way of describing it animation , or god forbid – videotaping ( i am sure the technology would exist ?).
think of an abortion like a police use of force. never pretty, needs to be placed in context, but always better understood if seen and described vs. talked about.
July 1, 2010, 2:51 ampublic_defender says:
I’m not going to rehash the argument about the propriety of Kagan’s role. Even Adler concedes that she personally doesn’t seem to have done anything improper.
The only real question is whether ACOG in anyway misrepresented the process for creating the statement. Some here say ACOG lied. That’s really hard to prove, and in one of her Corner posts, Coffin concedes that it would take a significant review of the trial and deposition transcripts before anyone could make that accusation fairly.
One commentator here cites a judge’s paraphrase of the House testimony of ACOG task force member Joanna Cain as evidence that the group “lied.” But a paraphrase is just a paraphrase. Ms. Cain was not on any of Kagan’s memos, so we don’t know if she knew about it. And we also don’t know (or at least I don’t) whether they were talking about the same statement, and whether knowledge of consultation would have had any effect on the result of the case.
If parties or lawyers intentionally misled a judge, that would be serious. But that’s a serious allegation that takes serious homework to backup. So far, no one has done that homework. And it’s not clear that the homework would prove that they were right or wrong.
July 1, 2010, 5:51 ampublic_defender says:
And on a somewhat related topic, I’m glad to see libertarians and conservatives show a healthy skepticism about self-interested statements from doctors. Remember that the next time you read an AMA survey about how doctors claim malpractice issues make them order unnecessary tests and conduct unnecessary procedures.
July 1, 2010, 6:01 amDavidicus says:
Are statements by purportedly neutral and apolitical professional organizations re-written by White House staff for political advantage?
Didn’t you hear that the Obama administration rewrote conclusions from its own experts to support a moratorium on off-shore oil drilling? Is this really any different?
http://www.nightchicken.com
.
July 1, 2010, 6:41 am.
Anatid says:
What, and liberals don’t? Or you’re not happy to see it when they do?
July 1, 2010, 7:28 amStudents for Life of Michigan - Blog says:
[...] Adler writes at the Volokh Conspiracy: “Was ‘language purporting to be the judgment of an independent body of medical experts [...]
July 1, 2010, 8:14 amJaimeInTexas says:
A needle is inserted into the cranium of a baby, er fetus, and its contents aspirated. What does a cranium contains? Yeah, brain sucked out is a non-technical but accurate way of stating what is being done.
Partial birth abortion may non-technical but what how would you describe soemthing that requires that a baby be breached, made to partially exit the vagina (up to his/her neck) so that the brains may be sucked out and cranium crushed?
If you believe that abortion ought to be the road less travelled, albeit available, the road of partil-birth abortion ought not be taken at all.
July 1, 2010, 12:47 pmJaimeInTexas says:
It is still a baby, a human baby. Innocent of any capital crimes.
Has any of those studies pricked the baby to see if it reacts?
I guess it is open season on humans who feel no pain: link
July 1, 2010, 12:57 pmzuch says:
“Not exactly”, as Hertz would say.
Cheers,
July 1, 2010, 1:13 pmDilan Esper says:
think of an abortion like a police use of force. never pretty, needs to be placed in context, but always better understood if seen and described vs. talked about.
Well, there’s a big difference between releasing the footage of Rodney King getting pummeled on a public street and releasing footage of woman’s vagina.
July 1, 2010, 1:32 pmOrenWithAnE says:
Just one?
July 1, 2010, 1:56 pmAlan K. Henderson says:
Shouldn’t perpetrating scientific fraud get Kagan disbarred?
Does disbarment disqualify one from serving on the Supreme Court?
July 1, 2010, 2:40 pmMonkeyEsq says:
What she did is well within the scope of what attorneys regularly do. Suggesting language for witnesses, even expert witnesses is not only permissible, but expected. Attorneys regularly draft entire affidavits for witnesses. It only becomes a problem if the Attorney intentionally asks the witness to lie, which does not appear to have happened here.
No, the only requirements to be a Supreme Court Justice are that you be appointed by the President and confirmed by the Senate. There is no need to be an attorney, or even have gone to law school.
July 1, 2010, 2:46 pmAnatid says:
But that’s the brilliant part about what she did. It’s not fraud. Quite misleading, but nothing she wrote is technically untrue or outright falsified.
The level of partisan dishonesty Kagan showed in her writing isn’t any worse than, say, the manipulations that most popular science press inflict on the data that it seems many VC readers are using as their primary, or only, source of scientific information. We humans like to be mislead when it suits our purposes and pre-existing views.
But why is it a surprise when scientific data undergoes the same mangling that any other information does as it worms its way through the annals of media and democracy? We’re sensationalists; we like scandal. Remember last year, when Vioxx and Bextra were removed from the market in response to massive public outcry about Merck’s misleading data on the risk of heart attacks? Was this a scientific decision? Definitely not, when you bother to take note of the fact that the next best medication on the market available for pain relief is Vicodin, which lacks the slightly elevated risk of heart disease, but ravages the nervous system and liver.
Kagan was, like any other administrator in a partisan government, doing her part to represent her administration’s views in law. We generally don’t notice or care when elected officials do this.
Is it reasonable to hold Supreme Court nominees to a higher ethical standard? When Kagan wrote this, was she thinking, “I really ought to take a more moderate stance so I don’t firebomb my chances of a nomination for Justice years down the road?” Should she have been?
July 1, 2010, 6:34 pmOrenWithAnE says:
Nor is it materially different from the normal practice of advocates and their expert witnesses repeated in nearly every such case brought in our courts.
July 1, 2010, 6:45 pmCynical says:
One could argue that there’s no human dignity in being squeezed out of a part of the anatomy we don’t allow to be shown on television. There’s no dignity in excreting on one’s self because one has no bowel control or muscular coordination.
The point is that these messy biological realities don’t matter to something which can’t begin to understand them. Shame doesn’t begin to develop until about 18 months.
But that’s a state action, and thus a state decision. The state has no business deciding the vast majority of options open to individuals, especially the most intimate.
In other words, killing the fetus while removing it is somehow abhorrent, but killing the fetus first eliminates any human dignity it might have so how it is removed is no longer an issue.
It’s nice to know that sophistry is not dead in 21st century America. </sarcasm>
July 1, 2010, 7:09 pmMichelle Dulak Thomson says:
Cynical,
In other words, killing the fetus while removing it is somehow abhorrent, but killing the fetus first eliminates any human dignity it might have so how it is removed is no longer an issue.
It’s nice to know that sophistry is not dead in 21st century America.
Well, actually, I think the reasoning is that it’s less painful to die of a heart attack than to be torn limb from limb, which is your basic D&X. Would you disagree? (You’re to be executed tomorrow, but you have your choice: We can either induce a heart attack, or else tie your arms and legs to four different trucks and have them all drive off in different directions. Makes no difference to us; your call.)
July 1, 2010, 7:46 pmAnatid says:
Pain is interesting stuff.
There’s the release of substance P in the sensory neurons. There’s the encoding of this message into a nerve impulse and transmission up the spinal cord to the base of the brain. There’s buffering by endorphin and enkalphin. There’s transmissiom and filtering of the signal through the thalamus. There’s activation of the insula. There’s both conscious perception of pain, as well as meditative reduction of pain, in the neocortex.
Inflict identical injuries on two people, and their experience of pain will be quite different. The literature I’ve seen so far on fetal pain suggests that the way you understand pain is very different from how an unconscious, nonsentient, half-formed fetus feels pain.
July 1, 2010, 8:03 pmMichelle Dulak Thomson says:
Anatid,
The literature I’ve seen so far on fetal pain suggests that the way you understand pain is very different from how an unconscious, nonsentient, half-formed fetus feels pain.
No doubt that’s so; though I find it difficult to imagine any way of determining just what a fetus experiences during a D&X. Let me put it this way: We can assume that a second-trimester fetus has something like the mental capacity of a late-gestation fetal kitten. Would anyone be comfortable tearing the kitten into small pieces? If not, why not?
July 1, 2010, 8:33 pmleo marvin says:
Charmaine Yoest of Americans United for Life misrepresented the facts in her testimony today. Responding to a question from one of the Senators, she said ACOG replaced its original language with the language provided by Kagan. As we know, Kagan’s language was appended to ACOG’s original language, it didn’t replace it, a difference of major significance.
July 1, 2010, 10:10 pmAnatid says:
Sure, if it served some legitimate purpose.
“Comfortable” may not be the best word for it – it’s not comfortable to pull a piece of glass out of my foot when I step on a broken bottle, but it’s still necessary and it’s a lot less painful than leaving the glass in.
July 2, 2010, 6:23 amJaimeInTexas says:
Good grief! Is this logical? If so I am moron.
Maybe, if you had said that killing you by ripping your limbs apart would be OK “if it served some legitimate purpose” then I would understand your point. I would also totally diasgree.
July 2, 2010, 10:58 amAnatid says:
Doesn’t make any difference to the fetus either way.
July 2, 2010, 1:44 pmMichelle Dulak Thomson says:
Anatid,
Doesn’t make any difference to the fetus either way.
That, I submit, is what you want to believe. There are second-trimester “fetuses” who were prematurely delivered and survived. Ripping their arms and legs off post-delivery would, of course, be murder; what’s more to the point here is that anyone would also think it would be painful. Why would it be less painful in utero?
July 2, 2010, 1:54 pmCynical says:
Fallacious argument. The difference is not between a second-trimester fetus in and out of utero, it’s the difference between a second-trimester fetus and a full-term one.
Second-trimester fetuses lack many important neurological capabilities of a full-term infant, such as the sucking reflex. It’s well-understood that the incomplete development includes pain nerves also. So yes, it probably would be less painful. A first-trimester fetus or embryo probably experiences no pain at all.
July 2, 2010, 2:17 pmMichelle Dulak Thomson says:
Cynical,
Fallacious argument. The difference is not between a second-trimester fetus in and out of utero, it’s the difference between a second-trimester fetus and a full-term one.
Really? I hesitate to pose the hypothetical, but I think if you were to rip the arms and legs off a baby in the preemie ward, you might hear a tiny scream. Followed, of course, by the much louder scream you’d give out yourself as you were arrested.
July 2, 2010, 2:40 pmCynical says:
I’d say something about ventilators and what they imply about screaming, but since you have already descended to flaming I will bow out here.
July 2, 2010, 3:26 pmJaimeInTexas says:
Good thing.
Maybe it would be difficult for the baby to make a sound but the baby would most definitely have the natural reaction towards screaming.
Maybe the proponents of the “procedure” would like to propose an experiment, on preemies, to test the proposition?
BTW, there has been surgery performed on unborn babies:
link
The baby was anesthesized
prenatal surgery definition
July 3, 2010, 9:17 amanother defintion
OrenWithAnE says:
Wow, quite a number of antecedents you’ve got buried in there.
July 3, 2010, 12:32 pm