SS INVESTIGATING THE CONFIRMATION TESTIMONY OF ELENA KAGAN BEFORE THE U.S. SENATE JUDICIARY COMMITTEE AND THE NEGATIVE IMPACT OF HER AMENDMENT OF THE JANUARY 1997 POLICY STATEMENT OF THE AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS (ACOG) ON THE FEDERAL ADMINISTRATION OF JUSTICE AND. THE U.S. SUPREME COURT a Report of i AUL# action The Legislative Action Arm of Americans United for Life 655 1STH STREET N.W. SUITE 410 WASHINGTON, DC 20009 JuLy 15, 2010INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AU La actrowr july 15.2010 Table of Contents Page L The Facts About Elena Kagan’s Amendment to the 2 January 1997 ACOG Policy Statement Il, Elena Kagan’s Senate Testimony 5 Ill. There was No Medical Evidence to Support 8 Elena Kagan’s Amendment to the ACOG Policy Statement IV. Elena Kagan’s Amendment Seriously Misled the 3 Federal Courts, including the Justices of the U.S, Supreme Court, about the Relative Safety of the Partial-Birth Abortion Procedure between 1997-2007 Appendices Appendix 1: References by Federal Courts to the ACOG Policy Statement or Kagan ‘Amendment Appendix 2: Transcript of Hlatch-Kagan Exchange, June 30, 2010 Appendix 3: Transcript of Coburn-Kagan Exchange, June 30, 2010 Appendix 4: Transcript of Graham-Kagan Exchange, June 30, 2010 Appendix 5: Kagan Memorandum of June 22, 1996 Appendix 6: ACOG Draft Statement of December 5, 1996 on “Intact D&X” Appendix 7: Kagan Memorandum of December 14, 1996 Appendix 8: Kagan Amendment to ACOG Statement Appendix 9: ACOG Final Policy Statement released January 12, 1997 ‘Appendix 10: Kagan Memorandum for the President of April 10, 1997 Appendix 11: William Saletan article in Slate.com, July 3, 2010INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AULA action, Iisa ‘Americans United for Life Action calls for a Senate investigation into (1) the facts surrounding Elena Kagan’s amendment to the Policy Statement of the American College of Obstetricians & Gynecologists (ACOG) on partial-birth abortion (D&X procedure), (2) the discrepancies in Kagan’s testimony before the U.S. Senate Judiciary Committee on June 30, 2010, and (3) the distorting impact of Kagan’s amendment on federal judicial and Supreme Court consideration of state and federal prohibitions on partial-birth abortion between 1997 and 2007, Kagan’s actions have raised unresolved questions. Because of the lack of other reliable scientific data, the ACOG Policy Statement, as Kagan amended it, was relied upon by federal courts to invalidate the laws of 30 states and an act of Congress. This seriously compromised the integrity of the U.S. federal judicial process for more than a decade Kagan’s willingness to amend and politicize an impartial medical report by a major medical organization in order to affect lezal and judicial events at the highest level of the American judicial system, relating to a major piece of Congressional legislation, raises serious questions. 1. The Facts About Elena Kagan’s Amendment to the January 1997 ACOG Policy Statement. Ho During the summer of 196, the Clinton W! ¢ evaluated the possibi ty of a Congressional override vote of the President's veto of the Partial-Birth Abortion Act of 1997 enacted by Congress. Kagan, then an associate White House counsel, and several als met with officials from ACOG other White House o' bout its position. nvINVESTIGATING THE CONFIRMATION OF ELENA KAGAN AULS action JULY 15,2010, Ina June 22, 1996 memo,! Kagan reported to her White House superiors: “Two important points emerged from the meeting. First, there are an exceedingly small number of partial-birth abortions that could meet the standard the President has articulated. In the vast majority of cases, selection of the partial-birth procedure is not necessary to avert serious adverse consequences to a woman's health; another option...is equally safe....Suffice it to say that we went through every circumstance imaginable...and there just aren't many where use of the partial-birth abortion is the least risky, let alone the ‘necessary, approach.” On October 5-6, 1996, a “select panel” of ACOG drafted a medical report on the procedure (“Statement on Intact Dilation and Extraction”).? The select panel’s Draft stated: “However, a select panel convened by ACOG could identify no circumstances under which [an intact dilation and extraction] would be the only option to save the life or preserve the health of the woman, Kagan reviewed the Draft after it was faxed to the White House on December 5, 1996. In a December 14, 1996 memo,* Kagan pronounced the Draft a “dis ster.” Kagan wrote the following amendment: “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 a doctor should be allowed to make this determination.”* Qn. ' See Appendix 5. 2 American College of Obstetricians and Gynecologists Exceutive Board, Statement on Intact Dilation and Extraction, draft 5 See Appendix 6. American College of Obstetricians and Gynecologists Executive Board, Statement on {ntact Dilation and Extraction, deat {See Appendix 7 ‘See Appendix 7, American College of Obstetricians and Gynecologists Executive Roard, Statement on Intact Dilation and Extraction, draft, with notes by Elena Kagan (undated).INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AUL@ action iivncn a The ACOG Executive Board, without consulting the “select panel,” adopted Kagan’s amendment. (This is verified by federal court testimony outlined on p. 11 below.) On January 12, 1997, ACOG released its final Policy Statement,’ with the Kagan Amendment, which stated: “A select panel convened by 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, 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.” On April 10, 1997, Kagan wrote a memo for President Clinton on partial-birth abortion, in which she touted the veracity of the ACOG Policy Statement that she had amended, without indicating her involvement (o the President: “Perhaps the most reliable opinion is from the American College of Obstetricians and Gynecologists, which issued a statement in January addressing the procedure” (emphasis added).’ Kagan quoted the ‘no circumstances” sentence from the Policy Statement and then quoted the sentence she had dratted.* ‘The President underlined this statement.” Kagan’s intervention in the ACOG Statement was not an isolated incident, but part of a pattem of behavior, Kagan also lobbied the American Medical Association (AMA) to change its medical policy on partial-birth abortion. Similar to ACOG’s original position, the AMA issued a policy stating that no situations had been identified where partial-birth abortion was the only appropriate method of abortion and that ethical * See Append 9 7 See Appendix 10 8Sce Appendix 10. ” See Appendix 10INVESTIGATING THE CONFIRMATION OF ELENA KA‘ AULS action JULY 15, 2010 concems surrounded it, Ina White House email dated June 1, 1997, Kagan wrote that she just came from a mecting that focused on “whether the AMA policy ean be reversed at its convention on June 23.” Kagan then concluded: “We agreed to do a bit of thinking about whether we...could contribute to that effort.” II. Elena Kagan’s Senate Testimony In her Senate testimony on June 30, 2010, Kagan admitted writing the amendment in an exchange with Senator Orin Hatch, Kagan defended her amendment to Senator Hatch, stating that ACOG had informed her that intact dilation and extraction “was in some circumstances the medically best procedure.""° During her testimony, Senator Tom Coburn asked: “...final question, it's your testimony before this committee that you had no efforts at all to influence the decision by ptt ACOG in terms of whet they ultimately put out on partial-birth abortion?”"' Kagan testified: “[M]y only dealings with ACOG were about talking with them about how to ensure that their statement expressed their views. I was a, you know, a staller with no medical knowledge.” William Saletan, in a Saturday, July 3, 2010 article in Slate, noted that Kagan’s explanation “doesn’t quite match her 1996 memo about her meeting with ACOG.""" As Saletan concluded, "See Appendix 2. William Saletan, When Kagan Played Doctor: Elena Kagan's Partal-Birth Abortion Scandal, July 3, 2010, at htp.//vw slate.com/id/2259495/pagenum/all/ép2. "See Appendix 3. " See Appendix 3. See Appendix 11INVESTIGATING THE CONFIRMATION OF ELENA KAGAN JULY 15, 2010 6 “the participants [in the June 1996 meeting] doubted whether ‘anything at all” would meet Clinton's standard—namely, a ease in which intact D&X would be ‘necessary to preserve the life of the woman or avert serious adverse consequences to her health.’ So, Kagan’s statement at her hearina—that ACOG had said intact D&X ‘was in some circumstances the medically best procedure’— considerably stretches the truth as she recorded it. It impli contrary to her contemporaneous notes, that ACOG had affirmed a specific need for the procedure." While Kagan testified that she was “clarifying the second aspect of what [ACOG] thought,” Saletan called this explanation “bogus.”"° He pointed out that Kagan “reframed” the ACOG conclusion and “changed its emphasis.”'7 It was not a mere As Saletan noted, Kagan altered both the political and the legal effects of ACOG’s statement: “With this clever phrasing, she obscured the truth: By reframing ACOG?’s judgments, she altered their political effect as surely as if she had changed them." Kagan’s testimony is belied by her June 1996 memo, which stated that the participants “went through every circumstance imaginable...and there just aren’t many Where use of the partial-birth abortion is the least risky, let alone “necessary,” and questioning whether an intact dilation and extraction would be necessary in “any [circumstance] at all." Kagan’s amendment to the ACOG Statement was politics, not science. Without any medical data to support her amendment, Kagan deftly incorporated the “health See Appendix I VE See Appendix 1 "6 See Appendix I See William Saletan, When Kagan Played Doctor: Elena Kagan’s Partial-Birth Abortion Scandal, July 3, 2010, at http://www slate.com/id/2259495/pagenum/all/#p2. "8 See Appendix 11 " Partial-Birth Abortion, memo, Elena Kagan to Jack Quinn & Kathy Wallman, June 22, 1996,INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AUL pea exception” language from Doe v, Bolton." which defined “health” for abortion law as all factors—physical, emotional, psychological, familial, and the woman's age— to! relevant to the well-being of the patient Thus, “health” in abortion law means “emotional well-being.” If a “health” exception is required in any regulation of abortion—parental consent, parental notice, partial-birth abortion, clinic regulations, funding limitations, ete—the regulation cannot be applied to the abortion provider if the regulation would affect the “emotional well-being” of the woman. Kagan effectively ‘wrote this health exception into the ACO yolicy statement, altering the emphasis of the statement, as Saletan notes. By virtue of Kagan’s amendment, ACOG’s policy was significantly changed from DE&X being not a necessary procedure to D&X possibly being necessary for “health” reasons. No circumstances” under which partial-birth abortion “would be the only option to...preserve the health” became “may be the best or most appropriate in a particular circumstance to...preserve the health of a woman.” This, nota mere audition. Kagan seems to claim that she was simply a scribe for changes coming from ACOG. But if Kagan met in June 1996 with ACOG repress entatives, and her amendment came from ACOG, why did its draft statement in December 1996 not have the language that Kagan subsequently added? ® 410 US. 179 (1973). "dat 192.INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AUL& action, why 15.2010 How could Kagan presume to alter the medical findings of ACOG?s ‘select panel” with such a substantive chang And, if Kagan had had talks with ACOG officials in which they expressed the views reflected in her amendment, why did Kagan react so strongly that ACOG’s draft was a “disaster”? Kagan’s amendment significantly influenced both the Congressional debate and judicial and Supreme Court consideration of the state prohibitions between 1997-2000 and the federal Partial-Birth Abortion Ban Act (PBABA) of 2003 between 2003-2007. IIL There Was No Medical Evidence to Support Elena Kagan’s Amendment to the ACOG Policy Statement. Elena Kagan’s amendment to ACOG’s medical statement from its “select pane!” ‘was not based on any medical evidenee. Kagan’s amendment was particularly influential and especially misleading precisely because the federal courts relied upon the ACOG Policy Statement in the absence of any peer-reviewed medical studies showing the safety of D&X. The tial record in the New York case, National Abortion Federation v. Asherofi? revealed that the ACOG “select panel” met for only two days to draft the organization's January 1997 policy statement on D&X that was edited by Kagan.” The panel did not identify or examine any studies regarding the safety of D&X and other 22330 F.Supp.2d 436 (S.D.N.Y. 2004). © 330 F.Supp.2d 436 (S.D.N.Y. 2004), Trial Record (“TR”) 2235,INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AULS actor Wey is.2010 abortion methods. Any written materials were reviewed only for “issue spotting,” and the panel failed to discuss D&X with any other physicians.”* The panel then sent a draft statement to the ACOG Executive Board with the following conclusion: “it could identify ‘no circumstances under which [D&X] would be the only option to save the life or preserve the health of the woman.° Without consulting the panel, the ACOG executive board unilaterally added the statement—which we now know was drafted by Kagan—that D&X “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman...” ‘The statement was never approved by the select panel or voted upon by ACOG"s membership.” ‘The record testimony in the three federal eases (in Nebraska, New York, and San Francisco) challenging the Partial-Birth Abortion Ban Act of 2003 demonstrated that there was no reliable evidence that any maternal or fetal medical condition required the use of D&X, or that D&X was safer than existing procedures. Experts testified that D&X is in fact contraindicated in true emergency jations because the dilation of the cervix takes too long.’® The New York federal court concluded: “In no case involving these or other maternal health conditions could Plaintiffs point to a specific patient or actual * Id. TR 2438-42. % jl, TR 153-54, 2461 (emphasis added). One expert who testified in the Nebraska partial-birth abortion ‘case, Dr Sprang, testified that ACOG “couldn't come up with a single example where it would be...the best, most appropriate alternative to save the health of the mother.” Carhart v, Asheroft, 331 F.Supp.2d 805 (D. Neb. 2004), TR 1098-1102, 2 J, TR 2460-62; i * Carhart v. Asherot, TR 2221-22, 2229, 331 F-Supp.2d 805, 934-35 (D. Neb. 2004), (TR) 1327, 1517-18,INVESTIGATING THE CONFIRMATION OF ELENA KAGAN AUL# action JULY 15,2010 circumstance in which D&X was necessary to protect a woman’s health.””” In contrast, there was substantial and reliable evidence that there were well-established alternatives to D&X (namely, dilation & evacuation (D&E) and medical induction), There was no reliable data that D&X was safer than existing procedures. No published medical studies existed in 1996-97 to support the claim that D&X was necessary or safer, and none existed at the time of the federal court trials in 2003-2004. All evidence about the sufety of D&X amounted to assertions of the intuitive safety of the procedure from the few who performed them; no reliable empirical evidence was presented, with the sole exception of one seriously flawed study by Stephen Chasen, published after the federal court trials. Several experts conceded the lack of any empirical studies. The plaintiffs’ experts could identify no studies comparing blood loss or risk of injury from “bony parts” between D&X and D&E.” The Government's experts also emphasized that no empirical data existed, Even if it is generally true that the safety for each particular woman depends on her individual circumstances when Avo procedures are statistically similar in terms of risk, there was no data indicating that D&X could be so compared because there was no data showing that it is statistically similar in terms of risk. The only peer-reviewed study addressing the comparison of D&E and D&X published before the Supreme Court’s 2007 decision in Gonzales v. Carhart is the Chasen study, an observational, retrospective cohort study that compared a group of 330 F-Supp.2d at 480. ® Carhart, 331 F-Supp2d at 928, 935. 10