Righties and “Medical Science”: Still at Odds

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abortion, Obama Administration

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 Gynecologists

Washington, 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.

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14 Comments

  1. c u n d gulag  •  Jun 30, 2010 @11:12 am

    “Which leads me to question — how stupid are wingnuts, really? ”
    SATSQ – off the chart’s stupid!!!
    So stupid, that they’re lucky that breathing is an involuntary reflex, because, if they actually had to think about, they’d be too stupid to live longer than a few minutes.
    But, we knew that…

  2. Kevin T. Keith  •  Jun 30, 2010 @11:56 am

    Excellent analysis, and good research. Thanks for getting this out there.

    As you note, it’s clear enough from the text itself, but Conservative Reading Comprehension Disorder, coupled to the Noise Machine, are formidable barriers to truth. Good job.

  3. felicity  •  Jun 30, 2010 @12:34 pm

    In pre-Vatican II days if a situation arose when a choice had to be made – either the mother dies and the fetus lives or the fetus dies and the mother lives – Catholic husbands were instructed to tell the attending doctor to spare the fetus, to hell with the mother. Something about an unbaptized fetus would go to hell, automatically, whereas a baptized mother wouldn’t? (I made that up but it might have been the rationale.)

    Of course the kicker is the woman didn’t have a vote. (It’s truly a miracle that we women ever got to vote in a political election.)

  4. joanr16  •  Jun 30, 2010 @1:12 pm

    Anti-abortionists upset about “fudged science” by ACOG. In related news, BP executives upset about pollution by Greenpeace!

    The best defense is to be incredibly offensive, I guess.

  5. LongHairedWeirdo  •  Jun 30, 2010 @3:57 pm

    I can almost understand the idea of being upset. She did change the wording from one that could be used to support a ban, to one that practically demands that the ban be forbidden.

    But… as you point out, she reworded their arguments, they agreed with the wording, and have used it ever since.

    This has nothing to do with changing science.

    It reminds me of a statement I saw about mammograms. It said there’d be x% positives, y% would be false positives, and followup would cause needless treatment in z%.

    And you look at the numbers, and it’s not easy to figure out what it means. (Meaning: I, with math and a head for statistics, couldn’t see the obvious implication – I could have if I’d gotten pencil and paper, but I didn’t).

    But – the upshot was, with those numbers, there’d be more false positives than early cancers caught. (NB: I’m not sure those numbers were right, and I’m not arguing about mammograms here. I’m simply saying that, rewording that statement from x%/y%/z% to “more false positives than true positives” was better, if those numbers were correct. Does that make sense?)

    “We won’t need this in the vast majority of cases” is true.

    “We *may* need this; it might be best” is also true.

    That she helped them realize that the latter was an alternate wording, and they *agreed* – they preferred that wording – is meaningless. The rightwingers are whining that Kagan helped them re-word their document so it read better.

    That’s okay – trying to restrict whining would cause more harm than good.

    But claiming that it’s misuse of science shows just how poor their understanding of science really is.

  6. c u n d gulag  •  Jun 30, 2010 @6:02 pm

    In honor of the false “Partial Birth Abortion” argument, I suggest we call carrying a child to term, either “Forced Pregnancy,” or “Forced Labor.”

  7. Dave S  •  Jun 30, 2010 @8:35 pm

    I guess none of these morons has never worked with an attorney before. Or an editor, for that matter. She came up with better language that better expressed their position, and they agreed with it. How will democracy ever survive the outcome?

  8. Swami  •  Jun 30, 2010 @10:44 pm

    “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.)”

    Why would Kagan’s role even need to be disclosed to the court? It doesn’t. Sounds like Shannen is bitter because Kagan was better, and she wants to paint Kagan’s anticipation as something sinister. Bitter, bitter, Shannen. Oh, drats, foiled again!

  9. Tom B  •  Jun 30, 2010 @10:54 pm

    Next, we’ll see the righties introduce a bill protecting the right of fetuses to pack concealed weapons.

  10. uncledad  •  Jul 1, 2010 @1:00 am

    “Keeping legal the intact dilatation and evacuation”

    Maha I’m sure you’ve noticed that sometimes I shoot my mouth of at your blog without reading the whole post, sorry but again. The shame of “senators” using this in a Supreme Court conformation hearing, those stooges just wanted the words “dilatation and evacuation” they wanted those words as part of the record, if not official once FAUX reports we’ll decide. Looks like shades of the Death Panel? What a bunch of knuckle dragging dimwits, reminds me of 10th grade. So I’ll read the rest of the post now.

    I think Kagen is doing a good job, I like her approach: relaxed, optimistic, unafraid. If I owned a team I’d pick her for my side.

  11. ema  •  Jul 1, 2010 @1:06 am

    To recap (from the linked NRO article):

    1) In a July 1996 meeting at the White House ACOG representatives told administration officials that “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.”

    2) Kagan then suggests that ACOG include “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.” in its final draft, and ACOG did so.

    3) Coffin asserts that the Kagan language that was copied in ACOG’s statement is nothing more than the political scrawling of a White House appointee, a calculated distortion not supported by scientific evidence.

    Coffin’s assertion is incorrect.

    The evidence that an intact D&E may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman is not only, you know, sciency but it was offered by ACOG’s representative (Dr. Cain) and by expert clinicians (Chasen, Hammond, Westhoff, Paul, Weiss, Johnson, Frederiksen, Creinin), under oath, in the New York trial (p 15-20). (As a relevant aside, the government’s expert witness, Dr. Lockwood, was in agreement.)

    For example:

    Testimony from ACOG (presented by deposition of its representative, Dr. Joanna Cain) showed that ACOG viewed reduced instrumentation as a significant reason why D&E with intact removal may be the best or most appropriate abortion method to save the life or preserve the health of a woman.

    Removing the fetus intact virtually eliminates the risk that fetal tissue will be left in the uterus. Retained tissue increases the likelihood of infection, hemorrhage, and infertility.

    D&E with intact removal takes less operating time than D&E with dismemberment, and may thus reduce bleeding, the risk of infection, and exposure to anesthesia.

    Intact removal is less likely to expose the uterus and cervix to sharp fetal bone and skull fragments.

    Third, the New York record also included abundant evidence that intact removal may be the safest option for women with certain medical conditions who are terminating their pregnancies. [being prone to or having infection; experiencing, or being at risk for, chorioamnionitis; being otherwise at risk of hemorrhage; having compromised immune systems; being prone to perforation or having uterine scarring]…In addition, ACOG’s expert panel pointed to numerous such conditions that make intact D&E the safest abortion method for certain patients….In addition to these conditions, there was also testimony in New York that D&E with intact removal could benefit women carrying fetuses with certain anomalies, such as hydrocephaly…and that it may also help in the post-abortion pathological diagnosis of certain fetal conditions.

    The evidence showed that the unique advantages of intact removal—–reduction of instrument passes, fetal fragmentation, and procedure time—–minimize the likelihood of complications that, while perhaps infrequent in an absolute sense, are potentially catastrophic in the very real cases when they do occur. The potential consequences of these complications include hemorrhage, overwhelming and systemic infection, and infertility.

    Bottom line: If you are Shannen W. Coffin and you accuse ACOG of issuing a statement that is not supported by medical data you better make absolutely sure you are familiar with the sciency stuff or risk being exposed as a giant, ignorant boob.

    (apologies for the length of the comment)

  12. uncledad  •  Jul 1, 2010 @1:25 am

    Is it wrong for the chair to act like a school girl with a camera?

    http://www.c-span.org/Special/Supreme-Court-Kagan-Senate-Confirmation-Hearing.aspx

  13. joanr16  •  Jul 1, 2010 @8:57 am

    I think it also bears repeating that, for 25 years after Roe v. Wade, late-term abortion wasn’t a front-burner issue. Then, in the 1990s, murder and terrorism by anti-abortionists suddenly erupted all over the U.S., and wham! manufactured outrage. The anti-abortionists came up with a clever distraction for their own moral failings.

  14. Swami  •  Jul 1, 2010 @1:01 pm

    “When President Obama promised in his inaugural address to “restore science to its rightful place,” he never explained what that rightful place would be.

    If it has to be explained don’t bother to try and understand. Colonel Robert Green summed it up succinctly….”If the Bible is true then every fossil is a perjurer”.

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