Kagan’s Fraud Upon the Courts
Jun 30, 2010
Joseph Bottum
In 2003, the ban on partial-birth abortion was signed by President Bush—and promptly challenged in court, leading to the 2007 Supreme Court decision upholding its constitutionality, Gonzales v. Carhart.
Along the way to the Gonzales v. Carhart decision, the District Court Judge Richard Kopf ruled the ban unconstitutional, relying heavily on a report that the American College of Obstetricians and Gynecologists (ACOG) prepared during the Clinton administration.
And he relied on it particularly, he said, because it was produced without influence from the contending parties on abortion—proving its scientific integrity: “Before and during the task force meeting neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics [the report] addressed.”
Turns out that isn’t true, even though the report said this was. In a blockbuster article in National Review, Shannen Coffin discloses the evidence he found in Clinton administration documents—a topic made timely by the hearings on Elena Kagan’s nomination to the Supreme Court.
And the evidence, Coffin claims, is that Kagan, from her post in the Clinton White House, wrote the central passages of the ostensibly neutral ACOG report and had them inserted in the text—which reveals, he says, Kagan’s “willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion.”
Apparently, the first draft of the ACOG report concluded that its panel “could identify no circumstances” that would make the partial-birth method “the only option to save the life or preserve the health of the woman.”
Kagan, then deputy assistant for domestic policy, issued a quick update to the White House:
This, of course, would be disaster—not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.
Coffin explains what happened next:
So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document captioned “Suggested Options”—which she apparently faxed to the legislative director at ACOG—Kagan proposed that ACOG include the following language: “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.”
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.)
This is the hard hand of politics forcing scientific fraud to get the results it wants. “What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered,” notes Yuval Levin.
But it is just as much a fraud upon the courts that relied on the independence of the ACOG “independent report.” And the fraud persisted all the way to the Supreme Court that Elena Kagan has now been nominated to join.
Given the current make-up of the Senate, and the academic backing that Kagan has as a successful law-school dean, there seemed little point in investing much energy in opposing her nomination. She appeared a shoo-in from the beginning.
But this revelation yesterday from Shannen Coffin is deeply disturbing. She will undoubtedly be questioned about this today. Indeed, I imagine her handlers have been up all night trying to find an explanation. We’ll have to wait to see what account Kagan offers, but, as of now, the evidence looks damning.
Joseph Bottum is editor of First Things.
Comments:
6.30.2010 | 7:19am
sanpietrini says:
So far, Obama hasn't shown any more integrity than Clinton: Kagan would seem to have a history of influencing the courts.
6.30.2010 | 8:51am
Joel Gibbons says:
Ms Kagan's fraud upon the federal court was indeed compounded by the ACOG leadership, but that doesn't absolve her. The report was presented to the court as the product of a special panel, but in the most important respect it contradicted that report. It was filed falsely, as perjured testimony. The respulting question is not whether or not this was a nice thing to do. The question is whether or not it was a crime. If it is a case of suborning perjury, Ms Kagan will be liable even if she is sitting on the bench.
6.30.2010 | 9:31am
Joel C Gibbons says:
Since the matter of Gonzalez vs Carhart involved the state of Nebraska, it would seem to be only natural that the atorney general of Nebraska would want to investigate the particulars of this case to determine if the disposition of the case, involving the validity of one of their laws, was prejudiced by the fraudulent filings.
6.30.2010 | 10:11am
veejay says:
Sorry Doc, but when testimony, either oral or affidavit, is manipulated, an argument may be made of suborning perjury. The original testimony was manipulated by Kagan to make this loathsome procedure become more palatable to the Court as well as the unsuspecting public.
This is the part you conveniently overlook. Did you have an issue with the original statement from ACOG or does the final product agree with your sense of what is medically and personally righteous?
This is the part you conveniently overlook. Did you have an issue with the original statement from ACOG or does the final product agree with your sense of what is medically and personally righteous?
6.30.2010 | 11:18am
Paul says:
Dr. B,
In what circumstances would an intact D&X be a better tool for saving the life of a pregnant woman than finishing the process of delivery with a live birth (even if that birth came at some risk to the child newly delivered)? You're statement suggests that there is greater risk to the woman's life with a full birth than with a partial birth conjoined with the termination of the life partially delivered and then its clinical extraction from the womb. Would you please inform us what circumstances those might be? As well, could you tell us whether you subscribe to the utilitarian notion that it is sometimes acceptable to deliberately kill one innocent life in order to preserve another? That is, do you think that some innocents can be intentionally sacrificed to save others? Your stance turns on acceptance of the utilitarian proposition, unless, of course, you think that personhood is determined by one's ability to make use of one's cognitive faculties or that it turns on the degree of development or deterioration of those faculties. But if you do, then you must think that deliberate killing of the mentally disadvantaged less wrong than killing those of us who can read and write with more proficiency.
I'm sure you'll understand if some of us reject the sort of crass utilitarian commonly used to justify partial birth abortion. And I'm sure you'll understand if some of want to know exactly what cases there might be in which partially deliver the child, killing it, and extracting it (in the way that is commonly done in this procedure) is more likely to save the life of the mother than a full delivery? At least with a full delivery no one is intentionally taking the life of another, even if there is some risk as a result of early delivery to the life of the child (that risk is accidental and not intentional, direct killing); at least with a full delivery, we're not sacrificing one life to save another as if the value of human life could crassly be reduced to some quantitative measurement.
In what circumstances would an intact D&X be a better tool for saving the life of a pregnant woman than finishing the process of delivery with a live birth (even if that birth came at some risk to the child newly delivered)? You're statement suggests that there is greater risk to the woman's life with a full birth than with a partial birth conjoined with the termination of the life partially delivered and then its clinical extraction from the womb. Would you please inform us what circumstances those might be? As well, could you tell us whether you subscribe to the utilitarian notion that it is sometimes acceptable to deliberately kill one innocent life in order to preserve another? That is, do you think that some innocents can be intentionally sacrificed to save others? Your stance turns on acceptance of the utilitarian proposition, unless, of course, you think that personhood is determined by one's ability to make use of one's cognitive faculties or that it turns on the degree of development or deterioration of those faculties. But if you do, then you must think that deliberate killing of the mentally disadvantaged less wrong than killing those of us who can read and write with more proficiency.
I'm sure you'll understand if some of us reject the sort of crass utilitarian commonly used to justify partial birth abortion. And I'm sure you'll understand if some of want to know exactly what cases there might be in which partially deliver the child, killing it, and extracting it (in the way that is commonly done in this procedure) is more likely to save the life of the mother than a full delivery? At least with a full delivery no one is intentionally taking the life of another, even if there is some risk as a result of early delivery to the life of the child (that risk is accidental and not intentional, direct killing); at least with a full delivery, we're not sacrificing one life to save another as if the value of human life could crassly be reduced to some quantitative measurement.
6.30.2010 | 11:22am
Anon says:
Read the Kagan memos. The ACOG's original language and her suggested edits are not mutually exclusive. It's only one option (ACOG) and it may be the best option (Kagan, with agreement from ACOG). The ACOG, without input from Kagan, also wrote: "The potential exists that legislation prohibiting specific
medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate , ill advised, and potentially dangerous." It's spin to suggest that Kagan added a make-or-break line. It's a lie to suggest she manipulated science.
medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate , ill advised, and potentially dangerous." It's spin to suggest that Kagan added a make-or-break line. It's a lie to suggest she manipulated science.
6.30.2010 | 12:17pm
Kamilla says:
Paul,
"Dr. B" can't give you an answer because there is none. The *only* purpose of a partial-birth infanticide is to kill the baby. The Baby is still fully delivered, so medically it makes no difference to the mother and probably increases her risk since the birth/delivery are delayed in order to first kill the baby.
Kamilla
"Dr. B" can't give you an answer because there is none. The *only* purpose of a partial-birth infanticide is to kill the baby. The Baby is still fully delivered, so medically it makes no difference to the mother and probably increases her risk since the birth/delivery are delayed in order to first kill the baby.
Kamilla
6.30.2010 | 12:24pm
Fred says:
But . . . but . . .but only REPUBLICANS politicize science. Didn't Chris Mooney say so in his book?
6.30.2010 | 12:46pm
Albert says:
"Anon", you're obviously wrong since no one suggested "Kagan added a make-or-break line." Whatever that might mean in your mind.
What is being suggested is that political ends played a unreported role in guiding the process that materially changed the language of the report in a way that effected the case, and this is fraudulent because the scientific report was supposed to be, and publicly relied upon to be as demonstrated by the statements of the court officials, free of such influence.
You should stop accusing people of lying when it's quite obvious you're willfully ignoring the damning context of these events.
What is being suggested is that political ends played a unreported role in guiding the process that materially changed the language of the report in a way that effected the case, and this is fraudulent because the scientific report was supposed to be, and publicly relied upon to be as demonstrated by the statements of the court officials, free of such influence.
You should stop accusing people of lying when it's quite obvious you're willfully ignoring the damning context of these events.
6.30.2010 | 12:46pm
Paul says:
Anon,
The passage you cite gets things exactly backwards, as I'm sure you see. For the matter isn't one of legislative bodies intervening in medical decisions but is, rather, a matter of medical bodies and scientists overreaching, beyond their proper jurisdiction, into matters moral and legal--something in which medical doctors and scientists have no particular specialization. It is not for scientists and doctors to tell us the legitimate boundaries of their professions. For that is the proper jurisdiction of moral philosophy. One would have thought the record of indiscriminate scientific experimentation in Nazi Germany might have served as a lesson to the rest of us. But historical memory has gone lax in recent decades. But any one who has studied history and bio-ethical reflection realizes that bio-ethics has come to be dominated by the same sort of moral relativism that Benito Mussolini defended in Diuturna. At any rate, anyone possessed of the slightest logical capacity should realize that scientific practice cannot of itself judge the moral limits of scientific practice. That would involve us in a self-referential incoherency of the most apparent sort.
The passage you cite gets things exactly backwards, as I'm sure you see. For the matter isn't one of legislative bodies intervening in medical decisions but is, rather, a matter of medical bodies and scientists overreaching, beyond their proper jurisdiction, into matters moral and legal--something in which medical doctors and scientists have no particular specialization. It is not for scientists and doctors to tell us the legitimate boundaries of their professions. For that is the proper jurisdiction of moral philosophy. One would have thought the record of indiscriminate scientific experimentation in Nazi Germany might have served as a lesson to the rest of us. But historical memory has gone lax in recent decades. But any one who has studied history and bio-ethical reflection realizes that bio-ethics has come to be dominated by the same sort of moral relativism that Benito Mussolini defended in Diuturna. At any rate, anyone possessed of the slightest logical capacity should realize that scientific practice cannot of itself judge the moral limits of scientific practice. That would involve us in a self-referential incoherency of the most apparent sort.
6.30.2010 | 4:29pm
Anon says:
Albert,
That's the whole point of the article, that Kagan changed the report by adding a crucial, politically inspired line to it. That's what Bottum meant when he called Kagan's addition "the central passage" or when Coffin called it "critical." How am I obviously wrong on that point?
Further, I'm not ignoring the "damning" context. It's quite obvious that Kagan's opponents will use it to damn her. My statement involved the charge that she manipulated science. If you read the source material you will see that Kagan did not add anything that was incorrect or inconsistent with ACOG's position, nor did ACOG remove the line about "identify no circumstances." It was one line amongst many that lead to the same conclusion.
----
Paul,
I don't engage in discussions with those who play the Nazi card against their opponents, whether it's from the left or right. It's lazy thinking disguised as righteousness.
That's the whole point of the article, that Kagan changed the report by adding a crucial, politically inspired line to it. That's what Bottum meant when he called Kagan's addition "the central passage" or when Coffin called it "critical." How am I obviously wrong on that point?
Further, I'm not ignoring the "damning" context. It's quite obvious that Kagan's opponents will use it to damn her. My statement involved the charge that she manipulated science. If you read the source material you will see that Kagan did not add anything that was incorrect or inconsistent with ACOG's position, nor did ACOG remove the line about "identify no circumstances." It was one line amongst many that lead to the same conclusion.
----
Paul,
I don't engage in discussions with those who play the Nazi card against their opponents, whether it's from the left or right. It's lazy thinking disguised as righteousness.
6.30.2010 | 4:30pm
Richard says:
The use of the word "fraud" in describing Kagan's actions in this case is a good example of the hysterical self-righteousness so prevalent in the right to life movement. There are very few late term abortions as a practical matter, most reasonable people are opposed to them unless medically necessary which does happen, and Kagan has demonstrated no amount of moral fecklessness in her actions.
I had a friend whose son's wife was long into her term when doctors diagnosed the fetus to be Siamese twins joined at the head with one brain. And the diagnosis was the child(ren) would never survive. The birth would have been a significant threat to the health of the mother. They did what reasonable people would do and ended the pregnancy. One notable bishop has declared their actions immoral. Oh, for such moral certainty, for such a black and white existence.
I had a friend whose son's wife was long into her term when doctors diagnosed the fetus to be Siamese twins joined at the head with one brain. And the diagnosis was the child(ren) would never survive. The birth would have been a significant threat to the health of the mother. They did what reasonable people would do and ended the pregnancy. One notable bishop has declared their actions immoral. Oh, for such moral certainty, for such a black and white existence.
6.30.2010 | 4:42pm
Peter Leavitt says:
Note how abstractly Kagan and Dr. B among other physicians refer to "D&X" partial-birth abortion. The actual procedure is as follows:
"Intact D&X, or partial birth abortion first involves administration of medications to cause the cervix to dilate, usually over the course of several days. Next, the physician rotates the fetus to a footling breech position. The body of the fetus is then drawn out of the uterus feet first, until only the head remains inside the uterus. Then, the physician uses an instrument to puncture the base of the skull, which collapses the fetal head. Typically, the contents of the fetal head are then partially suctioned out, which results in the death of the fetus, and reduces the sizes of the fetal head enough to allow it to pass through the cervix. The dead and otherwise intact fetus is then removed from the woman's body."
All of this to stay within the limitation of Roe v. Wade and Casey. Another way of stating the savage procedure would be that a potentially viable human being is slaughtered in accordance with the "Pro Choice" ideology.
"Intact D&X, or partial birth abortion first involves administration of medications to cause the cervix to dilate, usually over the course of several days. Next, the physician rotates the fetus to a footling breech position. The body of the fetus is then drawn out of the uterus feet first, until only the head remains inside the uterus. Then, the physician uses an instrument to puncture the base of the skull, which collapses the fetal head. Typically, the contents of the fetal head are then partially suctioned out, which results in the death of the fetus, and reduces the sizes of the fetal head enough to allow it to pass through the cervix. The dead and otherwise intact fetus is then removed from the woman's body."
All of this to stay within the limitation of Roe v. Wade and Casey. Another way of stating the savage procedure would be that a potentially viable human being is slaughtered in accordance with the "Pro Choice" ideology.
6.30.2010 | 5:03pm
Paul says:
Anon,
It's not lazy thinking. The canard that it is, is itself lazy thinking. I merely suggested that we might learn from experience, the lessons which history teaches. And history certainly has some lessons when it comes to allowing scientists and medical associations to dictate the boundaries of medicine and science. It is lazy thinking to say that invoking the lessons of history is lazy thinking without taking so much as an interest in demonstrating why. But, thanks for your ad hominem demonstration. But really, Anon, what you make of my noetic capacities is really quite irrelevant to the question at hand.
At some point you have to come terms with history. For instance, a good number of pro-choice arguments regarding slavery are formally identical to those advanced by the proponents of slavery. It's as if pro-choice philosophers read the arguments of Steven Douglas (and others) and decided to apply his argument concerning the autonomy of states in our constitutional system and applied those arguments at the level of individual as regards the right to an abortion. It's logically inconsistent to defend abortion liberty the way its defended and then decry social ills like slavery or segregation. It's also hypocrisy. But historical amnesia occludes the hypocrisy from the vision of of folks like anon. Is there not some culpability in refusing to take history seriously?
It's not lazy thinking. The canard that it is, is itself lazy thinking. I merely suggested that we might learn from experience, the lessons which history teaches. And history certainly has some lessons when it comes to allowing scientists and medical associations to dictate the boundaries of medicine and science. It is lazy thinking to say that invoking the lessons of history is lazy thinking without taking so much as an interest in demonstrating why. But, thanks for your ad hominem demonstration. But really, Anon, what you make of my noetic capacities is really quite irrelevant to the question at hand.
At some point you have to come terms with history. For instance, a good number of pro-choice arguments regarding slavery are formally identical to those advanced by the proponents of slavery. It's as if pro-choice philosophers read the arguments of Steven Douglas (and others) and decided to apply his argument concerning the autonomy of states in our constitutional system and applied those arguments at the level of individual as regards the right to an abortion. It's logically inconsistent to defend abortion liberty the way its defended and then decry social ills like slavery or segregation. It's also hypocrisy. But historical amnesia occludes the hypocrisy from the vision of of folks like anon. Is there not some culpability in refusing to take history seriously?
6.30.2010 | 5:33pm
John2 says:
I knew there was something wrong with Miss Kagan's evasive (my interpretation) attitude. She had plenty of opportunity to speak up, and didn't. That can only be a conscious choice. Then we learn of this behind-the-screen activity.
I hope the detailed point by point analysis will continue to full resolution.
No matter how it goes, we can conclude at this point, with dogmatic certainty, that the republic is best served by placing this one far, far away from the Supreme Court.
I hope the detailed point by point analysis will continue to full resolution.
No matter how it goes, we can conclude at this point, with dogmatic certainty, that the republic is best served by placing this one far, far away from the Supreme Court.
6.30.2010 | 6:02pm
Anon says:
Paul,
You flatter yourself. Please spend some time researching logical fallacies. You didn't merely suggest that we should learn from history, you purposely equated this specific case with Nazi experiments, Mussolini and now slavery. Using your reasoning, I could suggest moral and legal arguments have no business in the realm of science because Bruno was burned at the stake. It's a fallacious argument, but it invokes your call for "culpability in refusing to take history seriously."
You flatter yourself. Please spend some time researching logical fallacies. You didn't merely suggest that we should learn from history, you purposely equated this specific case with Nazi experiments, Mussolini and now slavery. Using your reasoning, I could suggest moral and legal arguments have no business in the realm of science because Bruno was burned at the stake. It's a fallacious argument, but it invokes your call for "culpability in refusing to take history seriously."
6.30.2010 | 6:40pm
Paul says:
Dear Anon,
Now who is being lazy? I did not equate Nazi experiments or Mussolini with this case. You've read my posts too quickly and heedlessly. You seem to just take for granted that people who disagree with you are fools or possessed of malfunctioning cognitive capacities. This is indicated by the fact that you simply assume you know my educational background. You take for granted that I have not studied nor taught logical fallacies--both formal and informal. And that's a magnificent assumption--it's also magnificently wrong. By the way, as one trained in formal and informal fallacies, I can tell you that what you say follows from my reasoning actually doesn't. It's what those of trained in philosophy call a non-sequitur. Of course, you've also caricatured my position. But we'll let the straw man slide.
At any rate, my post wasn't about me. Attacking me is simply a tactic for avoiding the argument. Let's take just one instance--I didn't equate the case at hand with Mussolini. What I said was that the predominant view in bio-ethics is the same relativism of the sort that Mussolini described and averred as being the very essence of fascism in his Diuturna. Anyone who disagrees either hasn't read much in bio-ethics or hasn't studied Mussolini or fascism. As for the Nazis--I merely said that they showed us what can happen when science is allowed to determine its own normative jurisdiction and requirements. But I also noted that suggesting that the sciences and medical arts determine their own moral limits is self-referentially incoherent. It's on par with allowing some exercise of will to be obligatory vis-a-vis other exercises of will just because its an exercise of will. To say that science or medical art is its own moral arbiter is just the same as to say that it has none. And very few of us are or should be okay with that state of affairs. And finally slavery, the point about the formal similarity in the arguments is so evident that I'm shocked any informed person would deny it. The published arguments for abortion, advanced by theorists and practitioners of various stripes, just do mirror the arguments advanced by Steven Douglas for slavery--with the exception that the autonomy advocated is that of individuals rather than the collective autonomy for which Douglas advocated. Anyone who denies this is uninformed or dishonest--but I prefer to think the former.
Now who is being lazy? I did not equate Nazi experiments or Mussolini with this case. You've read my posts too quickly and heedlessly. You seem to just take for granted that people who disagree with you are fools or possessed of malfunctioning cognitive capacities. This is indicated by the fact that you simply assume you know my educational background. You take for granted that I have not studied nor taught logical fallacies--both formal and informal. And that's a magnificent assumption--it's also magnificently wrong. By the way, as one trained in formal and informal fallacies, I can tell you that what you say follows from my reasoning actually doesn't. It's what those of trained in philosophy call a non-sequitur. Of course, you've also caricatured my position. But we'll let the straw man slide.
At any rate, my post wasn't about me. Attacking me is simply a tactic for avoiding the argument. Let's take just one instance--I didn't equate the case at hand with Mussolini. What I said was that the predominant view in bio-ethics is the same relativism of the sort that Mussolini described and averred as being the very essence of fascism in his Diuturna. Anyone who disagrees either hasn't read much in bio-ethics or hasn't studied Mussolini or fascism. As for the Nazis--I merely said that they showed us what can happen when science is allowed to determine its own normative jurisdiction and requirements. But I also noted that suggesting that the sciences and medical arts determine their own moral limits is self-referentially incoherent. It's on par with allowing some exercise of will to be obligatory vis-a-vis other exercises of will just because its an exercise of will. To say that science or medical art is its own moral arbiter is just the same as to say that it has none. And very few of us are or should be okay with that state of affairs. And finally slavery, the point about the formal similarity in the arguments is so evident that I'm shocked any informed person would deny it. The published arguments for abortion, advanced by theorists and practitioners of various stripes, just do mirror the arguments advanced by Steven Douglas for slavery--with the exception that the autonomy advocated is that of individuals rather than the collective autonomy for which Douglas advocated. Anyone who denies this is uninformed or dishonest--but I prefer to think the former.
6.30.2010 | 7:13pm
Paolo Pagliaro says:
Anon, Protagoras would be proud of you!
You will forgive my bad English, since I'm Italian; and, reading your reasoning, I'm really doubting my ability to understand your language.
So "It's spin to suggest that Kagan added a make-or-break line."??? Let me ask some questions:
1) Did you read what Kagan wrote? Namely: "This, of course, would be disaster....there is obviously a chance that the draft will become public.".
2) Are you able to spot any difference in meaning between the following two sentences:
a) “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”
b) “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.”
3) Was absolute scientific integrity - according to judge Kopf's exposition - preserved when then president Clinton's policy adviser suggested the report change and ACOG complied?
4) Of course, Kagan's "amendment" and the sentence by ACOG you quote are not mutually exclusive. So what? Also the original text wasn't conflicting with your quote. In fact they are not related. And, by the way, eventually it's not up to the doctors to decide if legislative bodies' intervention into medical decision is "inappropriate , ill advised, and potentially dangerous." Otherwise, I'd be really scared.
5) A final remark for Doctor B.
PBA "in certain emergency situations, in primitive hospitals especially overseas" could be the better practice, indeed! I would suggest: where gynecology is performed using machetes and jackhammers you wouldn't notice the difference... please. The problem is not if *logically* Kagan's sentence is valid (given an arbitrary possible context); the problem is that it suggests that the practice is the best in a *unqualified* (possibly very common) particular circumstance: and, here, the qualification is everything, since we're talking about human lives.
You will forgive my bad English, since I'm Italian; and, reading your reasoning, I'm really doubting my ability to understand your language.
So "It's spin to suggest that Kagan added a make-or-break line."??? Let me ask some questions:
1) Did you read what Kagan wrote? Namely: "This, of course, would be disaster....there is obviously a chance that the draft will become public.".
2) Are you able to spot any difference in meaning between the following two sentences:
a) “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”
b) “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.”
3) Was absolute scientific integrity - according to judge Kopf's exposition - preserved when then president Clinton's policy adviser suggested the report change and ACOG complied?
4) Of course, Kagan's "amendment" and the sentence by ACOG you quote are not mutually exclusive. So what? Also the original text wasn't conflicting with your quote. In fact they are not related. And, by the way, eventually it's not up to the doctors to decide if legislative bodies' intervention into medical decision is "inappropriate , ill advised, and potentially dangerous." Otherwise, I'd be really scared.
5) A final remark for Doctor B.
PBA "in certain emergency situations, in primitive hospitals especially overseas" could be the better practice, indeed! I would suggest: where gynecology is performed using machetes and jackhammers you wouldn't notice the difference... please. The problem is not if *logically* Kagan's sentence is valid (given an arbitrary possible context); the problem is that it suggests that the practice is the best in a *unqualified* (possibly very common) particular circumstance: and, here, the qualification is everything, since we're talking about human lives.
6.30.2010 | 7:19pm
Anon says:
Paul,
What arguments am I avoiding? I started this discussion with a specific reference from a specific memo. You decided to avoid that discussion and lecture me on history.
As to your logical fallacy, you wrote, "history certainly has some lessons when it comes to allowing scientists and medical associations to dictate the boundaries of medicine and science." What examples did you use? Nazi medical experiments and Mussolini's belief structure. So, tell me professor, would that be considered a hasty generalization, i.e., Nazi doctors couldn't set limits on science, so no doctor is able to.
Your Douglas/slavery example is simply a red herring. What exactly does it have to do with the propriety of Kagan's memo?
What arguments am I avoiding? I started this discussion with a specific reference from a specific memo. You decided to avoid that discussion and lecture me on history.
As to your logical fallacy, you wrote, "history certainly has some lessons when it comes to allowing scientists and medical associations to dictate the boundaries of medicine and science." What examples did you use? Nazi medical experiments and Mussolini's belief structure. So, tell me professor, would that be considered a hasty generalization, i.e., Nazi doctors couldn't set limits on science, so no doctor is able to.
Your Douglas/slavery example is simply a red herring. What exactly does it have to do with the propriety of Kagan's memo?
6.30.2010 | 7:24pm
John2 says:
OK, grant that Paul knows the widely accepted catalog of logical fallacies. Frankly, I don't much care whether Anon equals, surpasses, or comes up short vs. Paul's knowledge.
Is there any possibility of returning to the article?
The future of a Supreme Court justice is at stake. A Catholic, even a committed lefty Catholic, can hardly take Miss Kagan's position on abortion as irrelevant. It is real, she holds it with real force, and it colors her thinking in ways that are not good for anybody including the child. The history of slavery, Mussolini, and all the rest are secondary -- almost red herrings -- in this case; interesting, but not central given the abortion issue.
With all the things I dislike about her, Miss Kagan is a pretty good example where President Obama can say "Uh, oh, I messed this up worse than ... (insert other stuff here)." Even if he can't say it in public. I wonder if (when?) he will pull the nomination and who he might nominate next. I expect to find this out rather soon as he withdraws the mistaken Miss Kagan.
Is there any possibility of returning to the article?
The future of a Supreme Court justice is at stake. A Catholic, even a committed lefty Catholic, can hardly take Miss Kagan's position on abortion as irrelevant. It is real, she holds it with real force, and it colors her thinking in ways that are not good for anybody including the child. The history of slavery, Mussolini, and all the rest are secondary -- almost red herrings -- in this case; interesting, but not central given the abortion issue.
With all the things I dislike about her, Miss Kagan is a pretty good example where President Obama can say "Uh, oh, I messed this up worse than ... (insert other stuff here)." Even if he can't say it in public. I wonder if (when?) he will pull the nomination and who he might nominate next. I expect to find this out rather soon as he withdraws the mistaken Miss Kagan.
6.30.2010 | 7:39pm
Anon says:
Paolo,
1) Yes. I read all the memos and the draft and final versions of the ACOG position. There was little difference between the draft and final versions.
2) Sure, there's a difference, and they are also both statements of fact.
3) Yes, as nothing "scientific" was changed. Can you point out any such change that amounted to a conclusion inconsistent with the association's position or findings?
4) To me, this is the main point, since the suggestion is that the science was manipulated and a fraud was perpetrated. How was there a fraud or manipulation if she inserted a statement that was factually correct and agreed to by the association?
1) Yes. I read all the memos and the draft and final versions of the ACOG position. There was little difference between the draft and final versions.
2) Sure, there's a difference, and they are also both statements of fact.
3) Yes, as nothing "scientific" was changed. Can you point out any such change that amounted to a conclusion inconsistent with the association's position or findings?
4) To me, this is the main point, since the suggestion is that the science was manipulated and a fraud was perpetrated. How was there a fraud or manipulation if she inserted a statement that was factually correct and agreed to by the association?
6.30.2010 | 9:15pm
Bret Lythgoe says:
It's well known, in the medical community, that partial birth abortion is medically unnecessary. The fact that Kagan, having no medical training, would be willing to alter a medical statement, so that it supports the proabortion side, is very alarming.
This type of abortion, frankly, is just a sanitized form of murder. The testimony, before congress, in 1996, from a nurse who witnessed a partial birth abortion of a down's syndrome fetus, although otherwise completely healthy, provided further insight into this despicable act. The fetus's brain was sucked out, and the fetus was thrown in a garbage can. I WISH I was making this up.
This type of abortion, frankly, is just a sanitized form of murder. The testimony, before congress, in 1996, from a nurse who witnessed a partial birth abortion of a down's syndrome fetus, although otherwise completely healthy, provided further insight into this despicable act. The fetus's brain was sucked out, and the fetus was thrown in a garbage can. I WISH I was making this up.
7.1.2010 | 3:27pm
Christopher Benson says:
Mr. Bottum: I hope you'll offer a follow-up to this post. Did Elena Kagan answer questions about partial-birth abortion? Did Republicans show courage or cowardice when they inquired about her "violation of the boundary between scientific expertise and politics"?
7.3.2010 | 10:36am
Tim says:
" Sure, there's a difference, and they are also both statements of fact."
I'm not sure this is a statement of fact. Any Ob docs out there who can give us an example of a circumstance where this would be true?
I'm not sure this is a statement of fact. Any Ob docs out there who can give us an example of a circumstance where this would be true?
7.3.2010 | 1:28pm
Paul says:
Anon,
A doctor qua doctor and a scientist qua scientist are unable to set limits on the practice of their profession. For you cannot generate normative standards regulating scientific and medical practice from scientific and medical practice. Any attempt to do so would be self-referentially incoherent or question begging. One of course that the doctor is not just a doctor and that the scientist is not just a scientist. Hence a scientist with some capacity in practical reason--i.e., with some ability to reason about natural law--might arrive at right standards. But not because he's a scientist. Rather, because humans are moral and philosophical by nature (i.e., to reason about matters moral in accordance with the canons of logic is part of the proper functioning of the cognitive capacities as such). Of course, materialistic scientists, who tend deny that our cognitive faculties as such have a proper function--or proper functions--or who affirm that they do while denying the ontological ground for any such thing, might have some difficulty with moral reasoning, which requires some capacity to reason teleologically.
But, again, the medical doctor qua doctor nor the scientists qua scientist is a moral reasoner. They have to exit that sphere and contemplate the human good more generally in order to arrive at a proper understanding of scientific inquiry within the pursuit of the human good. Anon, I was making a broader point. Either you affirm the objectivity of morals or you don't. If you do, then you must concede that these are not merely intrinsic to the practice of any art. Rather, moral limits, almost as a matter of definition, transcend that which they limit. This is generally true, and so also follows when applied to science and medical arts.
Finally, anon, nothing I said entailed the consequent you inferred. You posit a certain conditional, which you attribute to my posts. But that conditional is nowhere stipulated in my posts. Nor does it follow from anything contained in them. I don't affirm it. Please don't accuse me of such sloppy thinking simply because you disagree with what I happen to say.
A doctor qua doctor and a scientist qua scientist are unable to set limits on the practice of their profession. For you cannot generate normative standards regulating scientific and medical practice from scientific and medical practice. Any attempt to do so would be self-referentially incoherent or question begging. One of course that the doctor is not just a doctor and that the scientist is not just a scientist. Hence a scientist with some capacity in practical reason--i.e., with some ability to reason about natural law--might arrive at right standards. But not because he's a scientist. Rather, because humans are moral and philosophical by nature (i.e., to reason about matters moral in accordance with the canons of logic is part of the proper functioning of the cognitive capacities as such). Of course, materialistic scientists, who tend deny that our cognitive faculties as such have a proper function--or proper functions--or who affirm that they do while denying the ontological ground for any such thing, might have some difficulty with moral reasoning, which requires some capacity to reason teleologically.
But, again, the medical doctor qua doctor nor the scientists qua scientist is a moral reasoner. They have to exit that sphere and contemplate the human good more generally in order to arrive at a proper understanding of scientific inquiry within the pursuit of the human good. Anon, I was making a broader point. Either you affirm the objectivity of morals or you don't. If you do, then you must concede that these are not merely intrinsic to the practice of any art. Rather, moral limits, almost as a matter of definition, transcend that which they limit. This is generally true, and so also follows when applied to science and medical arts.
Finally, anon, nothing I said entailed the consequent you inferred. You posit a certain conditional, which you attribute to my posts. But that conditional is nowhere stipulated in my posts. Nor does it follow from anything contained in them. I don't affirm it. Please don't accuse me of such sloppy thinking simply because you disagree with what I happen to say.
7.3.2010 | 1:43pm
wakeupamerica says:
Elena Kagan is just a cross section of those in this country who believe in murder of the unborn as a means to an end. Women and men have abdicated their responsibility of protecting their offspring from destruction in order to pursue other pleasures. Our government has taken on the role of God, in so doing has condemned the one man , one woman relationship, replacing it with a false truth. This action will destroy this nation as it has destroyed many before us . We have rotted from within and the stench is overwhelming.
7.7.2010 | 10:26pm
Anon says:
Paul,
The fact of the matter is, I haven't been disagreeing with your conclusions. I've been disagreeing with your methods.
You typed the following in your first post:
"The passage you cite gets things exactly backwards, as I'm sure you see. For the matter isn't one of legislative bodies intervening in medical decisions but is, rather, a matter of medical bodies and scientists overreaching, beyond their proper jurisdiction, into matters moral and legal--something in which medical doctors and scientists have no particular specialization. It is not for scientists and doctors to tell us the legitimate boundaries of their professions. For that is the proper jurisdiction of moral philosophy."
I think that statement is a fair response to the trade association's position and I wouldn't have offered any follow-up comment. However, you added the following:
"One would have thought the record of indiscriminate scientific experimentation in Nazi Germany might have served as a lesson to the rest of us."
Therein lies the problem. Does this not suggest a slippery slope between a medical association's policy position and Nazi experimentation? You suggest, because an association issued an overreaching policy position (as you see it), that we have not learned a lesson from one of the great crimes of history. The insertion of "Nazi" into any policy discussion is an appeal to both emotion and consequence. The world is politically charged whether you see it that way or not.
You then added the following in your next post:
"At some point you have to come terms with history. For instance, a good number of pro-choice arguments regarding slavery are formally identical to those advanced by the proponents of slavery."
This sets up a straw man (he who hasn't come to terms with the history lesson of Nazi experimentation) and throws in the pro-choice/slavery red herring.
Accuse me of whatever you like. I'm simply pointing out your words.
The fact of the matter is, I haven't been disagreeing with your conclusions. I've been disagreeing with your methods.
You typed the following in your first post:
"The passage you cite gets things exactly backwards, as I'm sure you see. For the matter isn't one of legislative bodies intervening in medical decisions but is, rather, a matter of medical bodies and scientists overreaching, beyond their proper jurisdiction, into matters moral and legal--something in which medical doctors and scientists have no particular specialization. It is not for scientists and doctors to tell us the legitimate boundaries of their professions. For that is the proper jurisdiction of moral philosophy."
I think that statement is a fair response to the trade association's position and I wouldn't have offered any follow-up comment. However, you added the following:
"One would have thought the record of indiscriminate scientific experimentation in Nazi Germany might have served as a lesson to the rest of us."
Therein lies the problem. Does this not suggest a slippery slope between a medical association's policy position and Nazi experimentation? You suggest, because an association issued an overreaching policy position (as you see it), that we have not learned a lesson from one of the great crimes of history. The insertion of "Nazi" into any policy discussion is an appeal to both emotion and consequence. The world is politically charged whether you see it that way or not.
You then added the following in your next post:
"At some point you have to come terms with history. For instance, a good number of pro-choice arguments regarding slavery are formally identical to those advanced by the proponents of slavery."
This sets up a straw man (he who hasn't come to terms with the history lesson of Nazi experimentation) and throws in the pro-choice/slavery red herring.
Accuse me of whatever you like. I'm simply pointing out your words.
7.7.2010 | 10:32pm
Anon says:
Tim, I'd recommend calling the ACOG, I hear they have a policy position paper that speaks to this.
10.23.2010 | 1:06am
Neoma Totzke says:
The fact is, Kagan's amendment is correct: an intact D&X, may be the best procedure, in preserving the life of the woman, in certain emergency situations, in primitive hospitals especially overseas. Read the Kagan memos. The ACOG's original language and her suggested edits are not mutually exclusive. It's only one option (ACOG) and it may be the best option (Kagan, with agreement from ACOG). The ACOG, without input from Kagan, also wrote: "The potential exists that legislation prohibiting specific
3.3.2011 | 4:56pm
Lachelle Beckem says:
Read the Kagan memos. The ACOG's original language and her suggested edits are not mutually exclusive. It's only one option (ACOG) and it may be the best option (Kagan, with agreement from ACOG). The ACOG, without input from Kagan, also wrote: "The potential exists that legislation prohibiting specific The future of a Supreme Court justice is at stake. A Catholic, even a committed lefty Catholic, can hardly take Miss Kagan's position on abortion as irrelevant. It is real, she holds it with real force, and it colors her thinking in ways that are not good for anybody including the child. The history of slavery, Mussolini, and all the rest are secondary -- almost red herrings -- in this case; interesting, but not central given the abortion issue.
“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.”
The fact is, Kagan's amendment is correct: an intact D&X, may be the best procedure, in preserving the life of the woman, in certain emergency situations, in primitive hospitals especially overseas.
Note that indeed, though the professional board could not imagine at first the circumstances that would require such a procedure, on further professional consideration, it signed off on the statement.
- Dr. B.