- The Washington Times - Wednesday, June 30, 2010

Elena Kagan has failed the ethical standards necessary for service on the Supreme Court. She also has shown herself to be an apologist not just for legalized abortion, but for legalized partial-birth abortion - a gruesome form of infanticide opposed by up to 75 percent of the American public. In yesterday’s Senate Judiciary Committee hearings, Ms. Kagan utterly failed in her attempts to explain away her unethical actions on behalf of an immoral policy. After these revelations, no senator claiming to be a moderate should be able to support Ms. Kagan.

Documents from Ms. Kagan’s service in Bill Clinton’s administration show her saying it would be a “disaster” if word got out that the American College of Obstetricians and Gynecologists (ACOG) “could identify no circumstances under which [the partial-birth procedure] … would be the only option to save the life or preserve the health of the woman.” She was so ideologically committed to keeping partial-birth abortions legal that she didn’t want the full medical truth released without accompanying language that diluted the impact of the facts. In another memo, Ms. Kagan laments that it was “a problem” that Mr. Clinton might want to restrict such abortions to a greater degree than she did.

Ms. Kagan took it upon herself to draft language for ACOG to insert into its findings, and then she had the gall to present the amended statement to the president without acknowledging that it had been altered, for political reasons, at her direction. Ms. Kagan drafted language stating that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance.” This later became the linchpin of lower court fact-finding and the Supreme Court’s decision (largely reversed a decade later) that a ban on partial-birth abortions was unconstitutional. Without the language, those particularly inhumane abortions would have been banned a decade earlier.

As Jennifer Rubin noted yesterday on Commentary magazine’s Contentions blog, Ms. Kagan’s duty as a lawyer for the president, while the case advanced through the courts, was to have the administration correct the court’s misimpression that “they were relying on neutral, expert testimony.” Ms. Rubin, herself a lawyer, calls Ms. Kagan’s silence “a significant ethical breach.”


Indeed, Rule 3.3 of the American Bar Association’s Model Rules of Professional Conduct requires that if “a lawyer comes to know of [the] falsity [of evidence or testimony], the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

Ms. Kagan’s career repeatedly has involved efforts to use the courts for political ends. Her work on partial-birth abortion is a perfect, and perfectly egregious, example. Her nomination should be terminated by the Senate.