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