When Supreme Court nominee Elena Kagan was a domestic policy adviser at the Clinton White House, she wrote a memo in the midst of the debate over Congress issuing a ban on partial-birth abortion. Her 1996 memo cites a statement from the American College of Obstetricians and Gynecologists (ACOG), a medical group that eventually opposed a ban on partial-birth abortion, which reads:

“A select panel convened by 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.”

In the 1996 memo, Kagan worries the statement will go public – an eventuality which she described as a “disaster.”

Sen. Orrin Hatch, R-Utah, who has had a generally friendly demeanor towards Kagan, said today in her confirmation hearing,

Did you write that memo?

Kagan returned,

I’ve seen the document. The document is certainly in my handwriting.

Kagan explained that she thought the ACOG’s statement would be a “disaster” because she didn’t think the medical group had fully expressed its position. She characterized ACOG’s position as such: that there was never a circumstance where partial-birth was absolutely necessary, but it could be “medically best” and the procedure with the “least risk attached to it in terms of preventing harm to the woman’s health.” The ACOG copied her language in its statement, saying 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.

Hatch wasn’t convinced.

As you know, many in Congress came to the conclusion too that it was a brutal procedure that was really unjustified. That bothers me that you intervened in that particular area in that way.

A year earlier, in her White House notes about a partial-birth abortion ban, Kagan indicated what “health of the woman” could mean:

Key of this analysis – All you need is a dr certifying ‘this procedure is safer’ don’t even need him to certify that woman is choosing to have an abortion for health reasons.