There’s a lot of buzz about Will Saletan’s incisive analysis of Elena Kagan’s role in shaping, from the White House, the “medical” conclusions of the American College of Obstetricians and Gynecologists on the partial-birth abortion method.  (See full article, below.)  The criticism of Kagan and ACOG is certainly welcome, especially coming from this “pro-choice” writer at this left-leaning magazine.

But Saletan is dead wrong on one central point:  Kagan did substantively change the ACOG statement with the sentence she dictated to the organization.  Before Kagan’s interference, the ACOG statement read:

“a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.”

Before Kagan, partial-birth abortion was equal to or lesser than other methods in ACOG’s view.  With the addition of Kagan’s wording that it “may be the best” method “in a particular circumstance,” partial-birth abortion now became potentially better than other methods in the official view of ACOG.  Saletan apparently doesn’t understand that making it potentially best in some unnamed hypothetical situation was equivalent to making it definitively best in the view of the reviewing courts.  Even a cursory reading of the lower court rulings shows that the Kagan “best” language was absolutely key to the courts’ reasoning in overturning the bans.

Ultimately, of course, the Supreme Court got past this politicized medicine and got the ruling right.  But this revelation should be a permanent black eye for ACOG’s reputation on any abortion-related issue in the future, and is proof that Kagan is a zealous pro-abortion political animal trying to disguise herself in judge’s robes.

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“As one who has spent a number of years in uniform, as a Marine and a police officer, my remarks will focus primarily on Ms Kagan’s treatment of military recruiters at Harvard Law School.

“As has been pointed out while Dean of the law school she defied the requirements of a federal law, known as the Solomon Amendment. Her violation of this federal law was motivated by her vehement opposition to the military’s prohibition against open homosexuality.

“This protracted incident, combined with the just made public report of her re-writing of the medical findings of ACOG on partial birth abortion as advisor in the Clinton White House, raises doubts as to whether she possesses the requisite judicial temperament and impartial nature required of a Supreme Court justice.

“We do not need a justice on the Supreme Court who sees it as her life mission to write the homosexual version of Roe v. Wade by striking down one-man, one-woman marriage across America. These positions and the temperament accompanying them make her unfit to sit as an associate justice on the Supreme Court. I urge the Senate to reject her nomination.”

Perkins’ complete prepared testimony can be viewed here.

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POSITION: Supreme Court nominee

NOMINEE: Elena Kagan

Born: April 28, 1960

Occupation: Dean of Harvard Law School and Charles Hamilton Houston Professor of Law at Harvard University.

Education: BA summa cum laude, Princeton University, 1981; MPhil, Worchester College, Oxford, 1983; JD magna cum laude, Harvard Law School, 1986

Clinton White House: 1995-1996 associate counsel to the President; 1997-1999 deputy assistant to the President for Domestic Policy; 1997-1999 deputy director Domestic Policy Council.

NOTE: From 1986 to 1987 Ms. Dean Kagan served as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit.  From 1987-1988 she also served as a judicial clerk for Supreme Court Justice Thurgood Marshall.  Dean Kagan briefly served as a staff member for Michael Dukakis’s presidential campaign.  During the summer of 1993 she served as Special Counsel to the Senate Judiciary Committee to work on the confirmation of Supreme Court Justice Ruth Bader Ginsburg.

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