Weekly Pulse: Where are the Anti-Choicers at the Kagan Hearings?

by Lindsay Beyerstein, Media Consortium blogger

As Supreme Court nominee Elena Kagan begins her second week of confirmation hearings, Mother Jones’ Stephanie Mencimer wonders why the anti-abortion protesters have been uncharacteristically subdued this time around. Normally, they live for these hearings. For hardcore anti-choice activists, a Supreme Court confirmation is like Christmas, Mardi Gras, and the World Cup all rolled into one.

Mencimer suspects that the antis were caught off guard by a revelation about Kagan’s role in shaping a proposed partial birth abortion ban. Documents show that as a White House policy adviser Kagan worked with the American College of Obstetricians and Gynecologists (ACOG) to craft the organization’s position on the whether partial birth abortion is ever medically necessary.

ACOG and “partial birth abortion”

ACOG originally wrote that its experts “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” In short, ACOG dodged the question. As far as a health exemption is concerned, the is whether this procedure is ever the best option, not the only option.

The right is accusing Kagan of distorting science for political reasons. In fact, Kagan didn’t distort the science at all. Like any good law professor, she suggested that ACOG restate the same idea in language that was more germane to the question at hand. It seems unlikely that the ACOG revelation will have a significant effect on Kagan’s confirmation prospects.

ACOG told Kagan that the procedure is almost never medically necessary. The key words here are “almost never,” which imply that the procedure is sometimes necessary. Documents show that Kagan urged ACOG to clarify its position.

She suggested the following language, which ACOG incorporated into its position statement: “[the procedure] may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” This episode is a sore point for anti-choicers because the courts have deferred to ACOG’s opinions on questions of medical necessity.

According to Steve Benen of the Washington Monthly, the Republicans are still trying to derail Kagan’s nomination by painting her as evasive. It’s already a cliche to point out that Supreme Court confirmation hearings are a charade in which the nominee’s job is to reveal as little as possible about her judicial philosophy.

Republicans are unlikely to summon much public outrage against Kagan for playing by the rules. The Judiciary Committee is scheduled to vote on Kagan next Tuesday, and the leadership wants a full vote before Aug 6.

Ending the CPC bait-and-switch

Rep. Carolyn Maloney (D-NY) has re-introduced a bill to stop false advertising by so-called crisis pregnancy centers (CPCs), as Noelle Williams reports for Ms. Magazine’s blog. CPCs are anti-abortion propaganda outlets (“ministries”) that try to pass themselves off as storefront women’s health clinics. Some CPCs advertise in the abortion services section of the phone book alongside real providers. They’ve even been known to set up shop across the street from a real clinic.

The phony “clinics” lure women with promises of free pregnancy tests, ultrasounds, and referrals for abortion and contraception services—but that’s just a prelude to a hard sell against abortion. A Congressional investigation found that CPCs routinely give false information about the dangers of abortion. Maloney’s bill would end the bait-and-switch. The Stop Deceptive Advertising Women’s Services Act (SDAW) would crack down CPCs that falsely advertise that they provide abortion services or referrals.

Contraceptives covered under health reform?

Thanks to health care reform, insurers may soon be offering contraceptives at no extra cost. However, as Monica Potts notes at TAPPED, the women’s groups clamoring for free birth control are facing an uphill battle against the US Conference of Catholic Bishops and other conservative groups. The USCCB is trotting out the old line that contraceptives aren’t preventative health care because fertility is not a disease. Potts notes the age old irony that groups so fiercely opposed to abortion are still fighting birth control.

UN addresses gender equity

In international news, the United Nations announced the launch of a new umbrella agency to promote women’s rights and gender equity. Vanessa Valenti of Feministing explains that the UN is actually merging four existing women’s rights bodies into a single organization. Valenti is concerned that local concerns will get lost in a new monolithic bureaucracy. However, she notes that the groups in the merger seem very happy about the prospect of joining forces.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.



Weekly Pulse: SCOTUS Nominee Kagan a Cipher on Choice

by Lindsay Beyerstein, Media Consortium blogger

On Monday, President Barack Obama nominated solicitor general Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. Kagan’s nomination has raised eyebrows among progressives. Despite a long career in legal academia, Kagan has published very little. She seems to have studiously avoided taking a stand on almost any controversial issue. Ruth Conniff of the Progressive calls the Kagan pick “a triumph of the bland.”

“Partial Birth Abortion” ban

As a White House aide, Kagan wrote a memo urging President Bill Clinton to support a ban on so-called “partial birth abortion.” At the time, the House had passed a sweeping late-term abortion ban with no exceptions for the life and health of the mother. Clinton asked Kagan whether he should throw his support behind a more moderate Senate version of the same bill. She recommended a “compromise”—a ban with a maternal health exemption. In the end, Congress passed the extreme version and Clinton vetoed it.

Suzy Khimm of Mother Jones characterizes the memo as “more indicative of a political strategy than a legal argument.” In other words, Kagan was giving strategic advice to the president about what would be politically feasible, not legal advice about the government’s powers to regulate abortion. Kagan argued that the president should support the “compromise” position even though the Justice Department thought it was unconstitutional, according to Jodi Jacobson of RH Reality Check.

At TAPPED, Monica Potts argues that the memo gives us little indication of how Kagan would vote on abortion as a justice.

No Harriet Miers

There’s no question that Kagan is possessed of a formidable intellect. Stephanie Mencimer of Mother Jones quotes one of her former law school students, Elie Mystal, sharing his experience with Kagan on the blog Above the Law:

Like Frodo on Weathertop, there are some wounds that never fully heal. Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier — I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.

That’s the best news I’ve heard all day.

Kagan has never been a judge, but that’s not necessarily a deal-breaker in itself. As Steve Benen points out at the Washington Monthly, over a third of the 111 justices of the Supreme Court have had no previous judging experience.

A missed opportunity

Scott Lemieux argues in the American Prospect that Obama is wasting a rare political opportunity to confirm a more liberal justice. Right now, the Democrats still have a sizable, though not filibuster-proof, majority in the Senate. Lemieux argues that Obama is almost certain to get another Supreme Court pick before the end of his term. Then again, he points out, the Democrats are likely to lose Senate seats in the midterm elections.

If Obama were ever going to get a strong liberal on the bench, this would have been the time. No date has been set for a confirmation hearing. Kagan is in Washington today, courting lawmakers.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.



Abortion: legislative techniques post-Gonzales v Carhart

An interesting piece from McClatchy (ex-KR) on the possible effects of Gonzales v Carhart (the SCOTUS decision on the Federal partial birth abortion law) in expanding the constitutional scope for state and Federal collateral antiabortion legislation.

The piece quotes Justice Kennedy's majority opinion:

The state's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers and society as a whole of the consequences that follow from a decision to elect a late-term abortion.

and provides this comment:
"I think that this means that a vast array of regulations are likely to be upheld," Duke Law School Professor Erwin Chemerinsky predicted. "Certainly this will embolden states to adopt more laws regulating abortions."

(Chemerinsky is joint author (with his wife) of the key article on the Senate filibuster.)

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Harry still floats like a butterfly

The SCOTUS decision in Gonzales v Carhart falls outside the remit of the blog.

But it gives rise to a fascinating little vignette that I fancy doesn't.

Naturally, all leading pols were yesterday asked their opinion of the Carhart decision.

Pelosi's reaction is pretty straightfoward:

I am disappointed. Criminalizing doctors for performing medically necessary procedures to save a woman's life or protect her health is wrong. The Court's decision is a significant step backwards.

Uncle Harry's, though, is a different kettle of fish:

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SCOTUS: We Need More Dead Baby Jokes

Crossposted from Town Called Dobson& My Left Wing

click to enlarge

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