Righties and “Medical Science”: Still at Odds

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.

The Irony of McDonald v. Chicago

I defer to Scott Lemieux’s legal analysis of McDonald v. Chicago, the gun rights decision handed down by SCOTUS today. I’m not going to quote it here; just read the whole thing, and then come back.

From a liberal perspective, any act of SCOTUS that dismantles the 19th century Slaughterhouse decision and rules that the 14th Amendment applies to the states ain’t a bad thing. This is the same legal principle on which most of the great civil rights decisions of the 20th century were based. I believe most if not all of the decisions that have ever caused wingnuts to scream about the awfulness of liberal judicial activism were tied somehow to the 14th Amendment forcing states to observe the rights of U.S. citizens.

Brown v. Board of Education, which desegregated public schools, rested on the equal protection clause of the 14th Amendment. Scott says the majority opinion in McDonald cites the due process clause of the 14th, which also is a critical part of Roe v. Wade and all of the cases that decided public schools should not be leading prayers in classrooms, such as Abington School District v. Schempp.

In other words, exactly the same part of the Constitution that allowed legal abortion and threw classroom prayers out of public schools has now been cited in a way that probably will overturn a whole lot of state and local gun control ordinances, and righties are dancing in the streets.

Given the Heller decision (see also this), I think McDonald is no big surprise. But while I appreciate the legal foundation of the decision the result — which will be to dismantle a lot of gun control ordinances, mostly in urban areas — worries me. And, frankly, I think it ought to worry the NRA as well.

Contrary to wingnut lore, there is not a huge public sentiment in favor of dismantling gun control laws. According to polls, recent and going back a few years, the enormous majority of the public either thinks gun control laws should be left as they are now (42 percent, according to an April CBS/New York Times poll), or made more strict (40 percent, same poll). So, per this poll, 82 percent of the public thinks gun control laws should be left as they are or made stricter, compared to 16 percent who want gun laws to be less strict. An October Gallup poll had nearly the same result.

It’s true that when the poll questions are framed in terms of gun rights rather than gun control, the numbers are somewhat more favorable to the NRA position. But I think this is the result of people reacting to the word “rights” — we’re always in favor of “rights” — without thinking through logical consequences. In other words, there are people who favor gun rights in the abstract, but they also want gun control in their neighborhoods.

And it is possible that if the NRA gets too aggressive about dismantling gun control laws, especially in large urban areas, the day may come when people start to think long and hard about amending the Second Amendment. That may be many years down the road, and I may not live to see it, but I think it could happen.

Update: Steve M on why the gun control war will never be over. And it isn’t because the gun control movement won’t quit. The gun control movement pretty much faded out of view several years ago, except in the fevered hallucinations of the NRA.

And that’s not just because they won’t consider America to be anything less than a fascist dictatorship until it’s as easy for virtually anyone to buy a gun in D.C., Chicago, or New York City as it is in, say, rural Mississippi. Even if the day comes when we have gun laws everywhere that are as loose as the loosest ones now (and I think that’s far more likely over the next couple of decades than ever passing any laws anywhere that actually tighten gun access), the gunners still won’t admit they’ve won.

They can’t. As I say here all the time, the belief that right-wingers are the perpetual victims of liberal fascism is a core element of their self-image. What’s more, believing this is what opens up wingers’ wallets and keeps groups like the NRA and Gun Owners of America — as well as every other right-wing organization that seeks small contributions — well funded and healthy.

In politics there is no hand so good it can’t be overplayed, I say.

Sen. Robert Byrd, 1917-2010

Truly, the end of an era.

Update: Thanks to everyone who corrected the date in the earlier headline. I had the senator dying at the age of minus seven.

I may have heard that the Senator could play the fiddle, but I never heard him play. Here is the Senator performing “Cumberland Gap.” I’ve heard it sung better, but it’s real decent fiddlin’. (h/t Ezra)

Financial Reform

You remember Simon Johnson’s “The Quiet Coup” we discussed awhile back? Here is Johnson talking about the “doom cycle” this past March.

Simon Johnson on the Doom Cycle (MMBM) from Roosevelt Institute on Vimeo.

We learned today that the House and Senate have agreed on a finance reform bill and are prepared to pass it into law. Tim Fernholz has a brief explanation of the major provisions. I will keep an eye out for other analyses of the bill.

Fernholz believes the bill really does diminish the likelihood of future “bailouts” of the financial sector. Andrew Leonard calls the bill a “deeply flawed success” that is worthy of guarded optimism.

BTW, do you remember a time when we didn’t have to guard our optimism? I certainly don’t.

Rights: A Primer

Unless something else went on that no one is admitting, I have to agree with the righties on this one. Merely standing in a public area and handing out literature is not “disorderly conduct.”

So, no matter that I think it’s a damnfool thing to do, if Christian proselytizers are standing in a public area next to the Arab International Festival in Dearborn, Michigan, and silently handing out copies of the Gospel, I don’t see how they could be afoul of the law. Of course, it’s possible the area wasn’t really public, or that stuff went on that wasn’t captured on video camera. But until I hear otherwise I have to assume the arrests were not justified.

And it strikes me that handing out Gospels outside a Muslim festival is is a blatant act of territorial marking. The message is less “come to Jesus” than “you’re not one of us, and don’t forget it.” But as long as they weren’t literally pissing on trees, the “markers” have a right to do that.

Another explanation might be that the area was a designated “free speech buffer” zone, like big chunks of Manhattan became during the 2004 Republican Convention. Allahpundit writes that the Dearborn incident is “one of the most ridiculous First Amendment violations you’ll ever see,” but I say it doesn’t come close to citizens being rounded up in orange nets and hauled away to detention just because they might get unruly.

In other news, the remains of 72 people, killed on September 11, were sifted out of debris that had been removed from under Manhattan’s West Side Highway. This story triggered a hearty round of chest-thumping on several rightie blogs.

It also triggered renewed outrage about plans to build a mosque two blocks from the “ground zero” site. Sorry righties; there are churches and synagogues in the same area. Equal protection under the law, and all that. You can’t complain about peaceful proselytizers in Dearborn and then deny a building permit to Muslims in Manhattan, just because they’re Muslims.

More McChrystal

Gen. McChrystal has been relieved of command and replaced by Gen. Petraeus, who was already commanding Afghanistan and Iraq, so I don’t know how that’s going to work.

Late yesterday I had fun watching the news headlines whir by on the Web. First the news (originating from The Telegraph, I think) was that General McChrystal had resigned. Then it was that he intended to resign. Then it was that he might offer his resignation. By noon or so today it had retreated to “might be asked to resign.” But “relieved of command” works.

One of the best analyses of l’affaire McChrystal is by Simon Tisdall at The Guardian. One of the dumbest is by WaPo‘s Jackson Diehl.

Update: See also analysis by Adam Serwer at TAPPED.

The McChrystal Mess

Today’s bombshell is the Rolling Stone article about Gen. Stanley McChrystal. In case you’re unable to have the web fed to you intravenously throughout the day, as I do — General McChrystal, the top commander in Afghanistan, and his aides badmouthed the Obama Administration. In print.

I’ve been trying to understand precisely what’s wrong with General McChrystal, and my impression is that he’s an asshole. This could be wrong, of course, since I never met him. Alex Pareene provides a more nuanced overview. A consensus is forming that the General feared the President wanted to end the Afghanistan campaign, and McChrystal seems to have thought the interview would stir public opinion against Obama and toward continued military operations in Afghanistan. That was a really stupid thing to think, but there it is.

As Pareene says, “the story presents a counterinsurgency expert general who got literally everything he wanted from an initially (and understandably) reluctant White House, and who is still childishly peeved that anyone in the civilian leadership ever had doubts to begin with.” See also Marc Ambinder.

The military’s subordination to civilian authority is a time-honored principle in the U.S. going back to the beginning. Generals who forget that principle tend not to be remembered well. George McClellan and Douglas MacArthur come to mind, suggesting that we need a rule about not promoting anyone with a “Mc” name above the rank of colonel. And McChrystal needs to be relieved of command asap.

Today’s Snooze

Oil still spreading in Gulf of Mexico, wingnuts still crazy. Today’s headlines —

In crazy wingnut news, we’ve learned that Rep. Michele Bachmann is so crazy she makes Bill O’Reilly seem sensible.

By now you may have heard the rumor that Rahm Emanuel will be leaving the White House. I say “rumor” because the story seems to have been fabricated entirely out of speculation, but “Rahm Emanuel expected to quit White House” is an easier headline to write than “Anonymous Source Who May Not Know Diddly From Squat Expects Rahm Emanuel to Quit White House.”

Not that anyone I know would mind if Rahm Emanuel did quit the White House, but apparently, there’s no “there” to this story. The columnist for The Telegraph just pulled it out of his butt. That hasn’t stopped anyone on the Right Blogosphere from seizing this story as evidence that the Obama White House is on its last legs.

Regarding the Gulf — everybody screwed up. This was in the New York Times

An examination by The New York Times highlights the chasm between the oil industry’s assertions about the reliability of its blowout preventers and a more complex reality. It reveals that the federal agency charged with regulating offshore drilling, the Minerals Management Service, repeatedly declined to act on advice from its own experts on how it could minimize the risk of a blind shear ram failure.

It also shows that the Obama administration failed to grapple with either the well-known weaknesses of blowout preventers or the sufficiency of the nation’s drilling regulations even as it made plans this spring to expand offshore oil exploration.

Finally, today Nobel Prize-winning economist Paul Krugman explains how economic growth (or not growth) happens.


I understand the White House is working overtime to hang Rep. Joe Barton’s apology to BP around the necks of the entire Republican Party. I hope this is noticed by independent voters, because of course it won’t make a dent in the opinions of wingnuts.

Barton’s “shakedown” and “slush fund” lines are, in fact, popular in the wingnut echo chamber. Via Digby, we find the increasingly irrational Rush Limbaugh saying

Now, here are my questions. You know, it’s funny, was just last week congressional Democrats said they wanted BP to set aside $20 billion. Where did this figure come from? And will the same people be administering this as who administered TARP money? Look, the government is in charge of this. I want to know who’s gonna get it. Who’s gonna get this money? Union activists? ACORN people? Who’s going to get this money? Let’s keep a sharp eye on who Feinberg gives this money to because I’m telling you this is just another bailout fund called something else and we’ll see who gets it. If Obama’s past is prologue — and it is — then this is going to be used as a little miniature slush fund and that’s why he’s bragging about it being third party, independent, so forth and so on.

Of course, an escrow account is not a “slush fund,” but you know that, so let’s go on … In wingnutland, see, the money set aside to play for the economic damages done to small business and honest, hard-working wage earners along the Gulf Coast is a “bailout.”

And somehow, ACORN is going to get its hands on the money, even though ACORN had dismantled itself and is no longer operational. I have no doubt that the name George Soros will get hauled into the Right’s hallucinations about the escrow account eventually. ACORN, George Soros, union activists (i.e., “thugs”) — all bogymen.

The basic irrationality that is wingnuttia is exposed pretty well in this Associated Press article, which I think is meant to be a fluff piece extolling the virtues of conservative citizen activists. But if you actually read it, you see that the wingnuts seem not to be living in the same time-space continuum as the rest of us. Even when they get something right, they get it wrong. Here, for example, we see an exchange that includes Hildy Angius, head of an organization called Colorado River Republican Women —

One of the golfers, between sips of a stiff drink, asks about the country he loves: “Why are we in such dire straits?”

“Years of neglect,” says Angius.

“Democrats!” another golfer exclaims.

See, in their world, Republicans did not control Congress for most of the past two decades, and the George W. Bush administration didn’t count as “not-Democrat” because Bush was not a conservative. And why not?

For her, it comes down to the competing and vastly divergent ideologies of the left vs. the right, and a feeling that American conservatives have been marginalized for years – throughout even the presidency of George W. Bush.

Bush, she says, “spent like a drunken sailor. He reached across the aisle. We weren’t happy with the taxes. We weren’t happy with his policy on illegal immigration. So, by the time he left, he was not very popular among conservatives. Because he was not conservative.”

We weren’t happy with the taxes — what taxes is she talking about? Does she think Bush raised taxes? And when did Dubya ever reach across the aisle? And the idea that the Right has been “marginalized” these past few years, when in fact until very recently the Right pretty much controlled the whole show in Washington, and still does control a whole lot state governments, tells me that Angius and her ilk are not responding rationally to current events. Instead, they’re responding to dog whistles.