What makes Elena Kagan worthy to sit on the Supreme Court? That’s really what lies at the bottom of hearings for a judicial nominee in my mind. What makes her enough of an expert on law that she deserves to be on the highest court in America?
(The question of bias and judicial activism is also important, but not relevant to this post.)
Kagan Is No Medical Expert
Whether Kagan is qualified to be an “expert,” serving on Supreme Court is debatable. Whether she is an expert in the field of medicine is not.
Kagan is not a doctor. Yet a sentence she wrote has been cited as the expert medical opinion of the American Congress of Obstetricians and Gynecologists (ACOG) on the issue of Partial Birth Abortion (PBA).
Four Crucial Documents Show Medical Necessity Was Created By Kagan
William Saletan explains how this happened very clearly in his article on Slate.com, “When Kagan Played Doctor.” You can see the progression in a series of documents uncovered by the Media Research Center. I’m going to summarize here what Saletan explains in detail.
The first is a memo Kagan wrote on June 22, 1996, stating that PBA is not medically necessary, according to a meeting she attended with ACOG representatives. They conclude that Clinton’s excuse for vetoing the bill (the lack of a life and health of the mother exception) might never justify the performance of a single PBA.
The second notable document is the draft statement by ACOG which states that their panel “could identify no circumstances under which this procedure…would be the only option to save the life or preserve the health of the woman.”
This was no challenge for Clinton’s loyal staffer, Elena Kagan, who drafted a list of “suggested options” for revising the ACOG statement. Instead of there being “no circumstances” PBA would be necessary, Kagan suggested the statement say that PBA “may be the best or more appropriate procedure in a particular circumstance to save the life or preserve the health of a woman”
The real problem is that 1) ACOG accepted Kagan’s suggestion in toto, adding it to the statement approved by their board, and 2) the Supreme Court (and other courts) accepted ACOG’s statement as expert medical testimony on the necessity of PBA and overturned PBA bans based on it.
Why Does Expertness Matter?
Perhaps you’re wondering why I’m so interested in this topic. It’s because this is precisely what I wrote my Master’s thesis on: the 1995 Partial Birth Abortion Ban debate and Clinton’s veto of it. I can send you the whole thing if you want it, but I guarantee it’s longer than any normal person would want to read. So let me highlight a couple of things that seem relevant here.
People against the Ban referred vaguely to the AMA and ACOG with their thousands of members and paraphrased the words of (often unnamed) experts to support their points.
A favorite quote of mine comes from the California Medical Society which claimed that banning PBA would “prohibit all sorts of medical benefits.” (Sounds impressive, right?) Just claiming the backing of “experts,” then, should not be enough for us to immediately give in to their superiority.
Secondly, two women were often touted as opposing the Ban because they had had “medically necessary” partial-birth abortions, according to their own testimonies. Senator Chris Smith (R, NH) clearly points out that they are either lying or stupid (my words, not his). Their own descriptions of what happened prove that these abortions were not the ones being banned by this law. So again we see that the pro-aborts are not above manipulating the truth to get their own way.
Finally (and not surprisingly) the “men can’t get pregnant” argument was also raised frequently. Senators Barbara Boxer (D, CA) and Carol Moseley-Braun (D, IL) had an exchange on the Senate floor observing how “amusing” it is that “most of this debate takes place between people who themselves have never been pregnant.”
It is basically the same old argument, “Keep your morality away from me because only I can decide what is best for myself.” A person who has never been pregnant can obviously not make a moral decision about pregnancy and abortion (sarcasm).
Why Does This Matter?
But, in the end, why does it matter what happened in 1995?
Because the same argument continues to be made by the abortion promoters.
We regularly talk to women at the late-term abortion clinic near our office (Albany) who are having abortions because their doctor—the expert—told them they needed to. He said their baby didn’t have a brain. He said their baby wouldn’t live long after birth. He said (insert excuse here).
And because their doctor said it, they accept it as true.
But the Kagan memos prove that we can’t simply accept what the experts tell us.
Being Pro-Life Sometimes Means Taking a Leap of Faith
Sometimes this takes a leap of faith. I was riding an empty city bus once and the driver struck up a conversation with me. He told me that his wife was on some strong medication that warned against women becoming pregnant while they were on it.
Well, she did become pregnant. The doctors all warned that this baby would be malformed—she’d have too many arms, or legs in the wrong place, and all sorts of scary things.
His wife decided, courageously—and against the recommendations of every doctor—to carry the baby to term. The driver told me that his daughter is the most beautiful child in the world. The only blemish she had at birth was a tiny birthmark on the bottom of her foot.
Likely you have heard similar stories of children who doctors said should have been aborted but who, thankfully, were spared and lived long and beautiful lives (or short but significant ones).
We cannot simply give ourselves into the hands of the experts. We must obey God’s law and live morally, even when the “experts” tell us it’s not the wisest thing to do.