There’s been a lot of talk in the last week about Elena Kagan’s role in influencing partial-birth abortion legislation during the Clinton administration by rewriting a crucial passage of a statement by the American College of Obstetricians and Gynecologists (ACOG) on the necessity of such a procedure. (Shannen Coffin has an excellent summary of the case at National Review.) The evidence is damning, but William Saletan of Slate says there’s a larger problem not being discussed here:
But if conservatives are being naive about the relationship between science and politics, Kagan is being cynical about it. “There was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians, to get it to change its medical views,” she told senators on Wednesday. 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.
She also altered their legal effect. And this is the scandal’s real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.
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National Review, CNSNews, and Power Line make a damning case that courts mistook the ACOG statement for pure fact. In 2000, when the U.S. Supreme Court struck down Nebraska’s ban on partial-birth abortions, it cited ACOG: “The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded 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.’” That sentence, we now know, was written by Kagan.
“Judges should stop treating the statements of scientific organizations as apolitical.” It’s a depressing thought, as we still like to believe that the hard sciences are by their very nature above the political fray; if you open a statement with “scientists say,” what comes next is assumed to be unassailable — but clearly that’s not always the case. These organizations can come with biases the same as any other — or their statements may pass through any number of political filters first, as in the Kagan/ACOG case — and not questioning their pronouncements on issues from abortion to global warming (and everything in between) can be a dangerous business.
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