Welcome to another episode of “Righties Can’t Read.” Some rightie bloggers think they have found the smoking gun that will scuttle Elana Kagan’s Supreme Court nomination, and I have no doubt this is all we’re going to hear about Kagan for the next several days. But if you actually understand the issue in question — which leaves out righties, naturally — you’d know there is no “there” there.
The accusation comes from Shannen W. Coffin, who was the deputy assistant attorney general in charge of the defense of the federal “Partial-Birth Abortion Ban Act” during the Bush administration. This thing is so badly written it’s hard to piece together exactly what happened when, and I’m not sure if Coffin is talking about something Kagan did regarding the Clinton-era federal Partial-Birth Abortion Ban Act, which President Clinton vetoed in 1997, or Stenberg v. Carhart (2000), in which SCOTUS struck down a Nebraska ban on the D&E procedure, or what. Maybe all of that.
But here’s the story in a nutshell — in 1997, apparently in preparation for some court challenge or appearance (again, Coffin’s account of this is very muddy, so it’s hard to tell), Kagan worked with the American College of Obstetricians and Gynecologists (ACOG) on a position paper in support of keeping legal the intact dilatation and evacuation (intact D&E; sometimes referred to as intact dilation and extraction, or D&X) procedure, which righties erroneously call “partial birth abortion.” And she suggested some changes to ACOG’s statement to strengthen its argument. ACOG signed off on these changes. Now righties are screaming that Kagan’s wording somehow fudged medical science, but it didn’t.
ACOG is America’s primary professional organization for obstetricians and gynecologists, and it represents 90 percent of U.S. board-certified obstetrician-gynecologists. ACOG’s position on the D&E procedure is that under some circumstances removing the fetus intact through the uterus vagina puts less stress on the mother and has fewer risks than the alternative procedures.
The primary alternative procedures are to dismember the fetus in utero and remove it in pieces, or to remove it surgically through the abdominal wall. The first way carries a risk that surgical instruments could damage the uterus and that some piece of the fetus will be left inside, potentially becoming septic. The second way is major surgery and more stressful to the woman’s body generally. However, most of the time either of those procedures can be performed safely enough, even if D&E would be preferable. It is rare — although not unheard of — for the alternative procedures to pose substantially more risk than D&E. (In Wingnut World, of course, “rare” is the same thing as “never” when it comes to abortion risks, but in the real world that’s not quite how things are.)
Apparently an early draft of ACOG’s statement said “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.†And Kagan realized that would be the only sentence in the document anyone would read. All of the rest of it explaining why D&E is sometimes preferred and occasionally necessary would be ignored. So Kagan suggested adding “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” to clarify ACOG’s position.
ACOG liked this suggestion. I couldn’t find a copy of their 1997 policy statement, but here it is from 2003 (from the Maha Archives; note bolded paragraph) —
Statement on So-Called “Partial Birth Abortion” Law
The American College of Obstetricians and GynecologistsWashington, DC — The American College of Obstetricians and Gynecologists (ACOG) continues to oppose so-called “partial birth abortion” laws, including the conference committee bill approved by the US House of Representatives yesterday and sent to the US Senate. “Partial birth abortion” is a non-medical term apparently referring to a particular abortion procedure known as intact dilatation and extraction (intact D&X, or D&X), a rare variant of a more common midterm abortion procedure know as dilatation and evacuation (D&E).
In 2000, the US Supreme Court struck down a Nebraska “partial birth abortion” law in the case of Stenberg v. Carhart, ruling that the law violated the US Constitution by (1) failing to provide any exception “for the preservation of the health of the mother,” and (2) being so broadly written that it could prohibit other types of abortion procedures such as D&E, thereby “unduly burdening a women’s ability to choose abortion itself.” The bill now before the Senate, which its supporters claim can meet any constitutional test, blatantly disregards the two-pronged test the Supreme Court carefully established in Stenberg.
As noted in a 1997 ACOG Statement of Policy, reaffirmed in 2000, and in ACOG’s amicus curiae brief filed in the Stenberg case, ACOG continues to object to legislators taking any action that would supersede the medical judgment of a trained physician, in consultation with a patient, as to what is the safest and most appropriate medical procedure for that particular patient.
ACOG’s Statement of Policy explains why ACOG believes such legislation to be “inappropriate, ill advised, and dangerous.” The policy statement notes that although a select panel convened by ACOG could identify no circumstances under which intact D&X would be the only option to protect the life or health of a woman, intact D&X “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances, can make this decision.”
The Statement of Policy further reads that such legislation has the potential to outlaw other abortion techniques that are critical to the lives and health of American women. This was the second basis upon which the Supreme Court struck down the Nebraska law in the Stenberg case. The Court will invariably strike down laws that are overly broad or imprecisely drawn. Bills that frequently using terms — such as “partial birth abortion” — that are not recognized by the very constituency (physicians) whose conduct the law would criminalize, and that purport to address a single procedure yet describe elements of other procedures used in obstetrics and gynecology would not meet the Court’s test.
In this case, the bill before the Senate fails to respect the Stenberg test because bill supporters flagrantly refuse to include an exception for the health of a woman. Instead, legislators try to circumvent the Court’s requirements by issuing their own opinion to the nation’s physicians and patients that such a procedure is never needed to protect a woman’s health — notwithstanding opposing opinions from the medical community.
The medical misinformation currently circulating in political discussions of abortion procedures only reinforces ACOG’s position: in the individual circumstances of each particular medical case, the patient and physician — not legislators — are the appropriate parties to determine the best method of treatment.
# # #The American College of Obstetricians and Gynecologists (ACOG) is the national medical organization representing 45,000 members who provide health care for women.
Somehow, in the fevered imagination of righties, a professional organization representing 90 percent of U.S. board-certified obstetrician-gynecologists was duped by Kagan into telling a lie, or something, and because this wording came from Kagan it must not actually reflect the views of ACOG. Coffin concludes,
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.
Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.
But no scientific finding was “overridden,” just clarified, and ACOG must have agreed with the statement or they wouldn’t have continued to repeat it in their position papers ever after.
But of course right now just about every rightie blogger in the universe is brainlessly repeating the party line, which is that there is something unethical about Kagan’s working with ACOG on their policy statement. Which leads me to question — how stupid are wingnuts, really?
More from the Maha Archives — “Late Term Confusion,” More Late Term Confusion” and “The Kennedy D&E.”
Update: See also Taylor Marsh.
Update Update: The “Most in Need of Remedial Reading Classes Award” today has to go to Betsy, of Betsy’s Page, who wrote,
Think of this: there was a doctors’ opinion that said that partial birth abortion was not necessary and she, with no medical background at all, drafted a statement that said the exact opposite and that statement became part of the final report.
This is stunning. It’s not even in the same galaxy as what actually happened. Based on this I would infer that Betsy has less than a fourth grade-level reading proficiency, except that I met her once, and I know she really does know how to read. And she may once have known how to think as well; hard to say.