In the confirmation process for Elena Kagan, previous memos by the nominee were brought out for public scrutiny. The Senators were aware that Kagan was President Clinton’s legal advisor during the time the Supreme Court was reviewing the legality of Nebraska’s ban on partial-birth abortion.
Signed into law by then-governor, now Senior Senator Ben Nelson, the law was challenged to the Supreme Court into the administration of governor, and now Junior Senator Mike Johanns. At the conclusion, the Nebraska law was struck down by the Supreme Court.
In their ruling, they cited the American Congress of Obstetricians and Gynecologists (ACOG) which produced a statement that stated “a select panel convened by ACOG could identify no circumstance under which this procedure…would be the only option to save the life or preserve the health of the woman.” It means, the partial-birth abortion is, medically, never the only solution to any genuine medical issue involving life or health. The statement later, however, includes an additional statement that a “partial birth abortion may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
That seems to contradict the original statement. Regardless, in making their ruling, the majority opinion of the court cited this report, and quoted this statement in their ruling. More than once.
As it turns out, this statement was added by Ms. Kagan, confirmed in a handwritten memo listing optional language to be inserted into the original statement of the ACOG.
It is obvious when medical issues are brought to the court, it is the job of a lawyer, somewhere, to present the case in terms judges can understand and rule. It is also obvious Ms. Kagan was willing to represent facts in a way which provided the court the opportunity to strike down the state law without appearing to disagree with scientific facts.
Her willingness to provide an activist view will carry forward assuming she is confirmed. Mike Johanns has clearly stated he will not vote for her confirmation. It will be interesting to see if Ben Nelson, considered a “moderate” Democrat, who campaigns on the platform he wants to do what is best for “all Nebraskans” will consider the action taken against a law he signed, on behalf of Nebraska, warrants any response when it comes to keeping that mindset on the court.