Testimony by Dr. Charmaine Yoest before the Senate Judiciary Committee on July 1, 2010:
Thank you Chairman Leahy, Ranking Member Sessions, and members of the Committee for inviting me to testify on behalf of Americans United for Life (AUL), the oldest national pro-life public-interest law and policy organization. Our vision at AUL is a nation where everyone is welcomed in life and protected by law. We have been committed to defending human life through vigorous judicial, legislative, and educational efforts since 1971, and have been involved in every abortion-related case before the Supreme Court including Roe v. Wade. In fact, thirty years ago this week AUL successfully defended the constitutionality of the Hyde Amendment before the Supreme Court in Harris v. McRae, a landmark case in defense of unborn human life.
I am here tonight because of AUL’s strong opposition to the nomination of Solicitor General Elena Kagan to the United States Supreme Court. Based on our research, we believe that Ms. Kagan will be an agenda-driven justice on the Court, and that she will oppose even the most widely-accepted protections for unborn human life.
These hearings have strengthened our opposition to Ms. Kagan’s appointment as the record shows she was willing to manipulate the facts to pursue her own personal political agenda while serving as an advisor to President Clinton. Indeed, she demonstrated a pattern of behavior of letting her passion for a particular policy – in this case partial-birth abortion – overwhelm her judgment.
Tonight I’d like to make three points:
First, I urge this Committee to officially investigate the discrepancies that have arisen this week between Ms. Kagan’s testimony and the written record about her actions related to lobbying the American Medical Association and the American College of Obstetricians and Gynecologists during her tenure in the Clinton White House. The questions surrounding this period are troubling and call into question Ms. Kagan’s ability to adopt an impartial judicial temperament.
Second, Ms. Kagan has an extensive record that demonstrates her hostility to regulations of abortion and any protections for unborn human life. We believe that Kagan would undermine any efforts by our elected representatives to pass or defend even the most widely-accepted commonsense regulations of abortion like bans on partial-birth abortion, parental notification and informed consent. Her testimony this week, particularly her response to Senator Feinstein that any regulation of abortion requires the Doe health exception, has added to this concern.
Then third, we believe that a nominee’s judicial philosophy goes to the heart of his or her qualifications to serve on the United States Supreme Court. And we believe that Ms. Kagan’s agenda-driven judicial philosophy makes her unqualified to serve on the Court.
I. Testimony Discrepancy Related to AMA and ACOG Lobbying
We are asking this committee to investigate Ms. Kagan’s record related to her interaction with both the AMA and ACOG during her tenure as a policy advisor to President Clinton.
I’d like to focus attention tonight on her apparent efforts to influence and distort the record on the medical science related to partial-birth abortion. In a December 14, 1996 memo, Kagan addressed the pending release of a proposed statement by ACOG that partial-birth abortion is never medically necessary. The release of such a statement, she argued, “. . .would be a disaster . . .”
In response, White House documents show that Kagan drafted an amendment to ACOG’s statement, dramatically altering their language, which stated that partial-birth abortion: “may be the best or most appropriate in a particular circumstance to save the life or preserve the health of a woman.” ACOG subsequently adopted Ms. Kagan’s handwritten change into their final statement.
Kagan claimed before this Committee that she was simply a scribe for changes coming from ACOG. But Kagan’s response raises more questions than it answers.
And this was not an isolated case. We have further evidence that she pursued this same strategy with the AMA.
Similar to ACOG’s original position, the AMA issued a policy stating that no situations had been identified where partial-birth abortion was the only appropriate method of abortion and that ethical concerns surrounded it.
In a White House email dated June 1, 1997, Ms. Kagan wrote that she just came from a meeting which focused on “whether the AMA policy can be reversed at its convention on June 23.”
Kagan then concluded: “We agreed to do a bit of thinking about whether we …could contribute to that effort.”
Elena Kagan was so opposed to the passage of a ban on partial-birth abortion that she appears to have advocated for ACOG and the AMA to suppress or modify their view. She made a deliberate decision to advocate for partial-birth abortion, even to the point of working to deceive the American public about the medical science related to the procedure.
As a woman, this deeply offends me.
II. Elena Kagan’s Abortion Record and Hostility to Abortion Regulations
Kagan’s partial-birth abortion activism highlights our next concern: her record demonstrates a commitment to advancing an abortion regime with no restrictions and a particular hostility to abortion regulations.
During Elena Kagan’s service in the Clinton White House she urged the President to oppose any meaningful restrictions on partial-birth abortion arguing in a memo that even a weak “ban” was “unconstitutional. . .”
Kagan argued that any partial-birth abortion ban that extended to pre-viability abortions for any reason was unconstitutional.
In contrast, the Supreme Court upheld the Partial Birth Abortion Ban in Gonzales v. Carhart, over ten years after Kagan advised President Clinton that his much weaker proposal was unconstitutional.
Our concern is not simply that Elena Kagan will be another judge who supports upholding Roe v. Wade. Rather, we are concerned that even the most widely-accepted regulations on abortion will not withstand her review.
Our concern about the future of these laws only deepened during Kagan’s testimony. During an exchange with Senator Diane Feinstein, Kagan stated that the Doe v. Bolton health exception applies to all abortion regulations. Kagan’s next-day statement that Gonzales is “settled law” neither retracts her testimony from Tuesday, nor mitigates the concern it raises.
Kagan’s view is more radical than what the Supreme Court has required even prior to the Gonzales decision. Laws that are supported by a majority of Americans – parental involvement, informed consent, abortion funding, fetal pain, late-term procedures, abortion clinic regulations and more — all these have been upheld without Doe’s unlimited “health” exception.
All of these laws would be in jeopardy under Elena Kagan’s professed view that Doe’s unlimited definition of “health” must apply.
III. Elena Kagan’s Judicial Philosophy
Finally, in conclusion, a Supreme Court nominee’s judicial philosophy is as relevant to whether she is qualified to serve on the Court as her intellectual ability, education, and professional experience. And Elena Kagan’s record indicates that she will be an agenda-driven justice, deciding cases on her own political and social ideology rather than the Constitution.
For example, Ms. Kagan once wrote:
“. . . judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.”
The record of Ms. Kagan’s professional career in politics and on abortion reveal a committed pro-abortion ideologue. When combined with other statements and writings that reveal her judicial philosophy, it is clear that a Justice Kagan would use the Constitution and other sources of law to “mold and steer the law” to promote her own agenda and force a right to abortion on our country broader than the one created in Roe v. Wade.
Thank you for inviting me to testify today.