Ben Johnson

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Kagan’s participation in ObamaCare decision may have violated judicial ethics and federal statute

Ben Johnson
Ben Johnson
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WASHINGTON, D.C., June 29, 2012, (LifeSiteNews.com) – Elena Kagan’s decision to vote on Thursday’s health care ruling may have violated judicial ethics and federal statute, legal experts say. As Solicitor General, Kagan appointed the head of the legal team that formulated the president’s legal defense of the health care reform bill, signaling a possible conflict of interest. Her participation, according to liberals and conservative scholars alike, casts a pall over the outcome.

“Her evident refusal to explain why she hasn’t recused herself given all the substantial information out there, taints the decision,” Judicial Watch President Tom Fitton told LifeSiteNews.com.

“We can be all upset, and rightly so, about [Chief Justice John] Roberts signing on to this terrible, judicial activist decision,” he said, “but in terms of good government there is now substantial question about the legitimacy of the decision, because of the outstanding questions about Kagan’s participation in the ObamaCare defense when she was Solicitor General.”

Federal statute 28 U.S.C. 455 demands that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

“Elena Kagan should have recused herself from this decision, considering she was Solicitor General during the highly contentious Congressional debates over the Affordable Care Act,” constitutional scholar John W. Whitehead, president of The Rutherford Institute, wrote in an e-mail to LifeSiteNews.com. “She was certainly in a position which would call into question her ability to be impartial in her ruling.”

After a contentious Freedom of Information Act request, Judicial Watch secured the text of multiple e-mails and the Vaughn index, which refers to seven e-mails written from March 17-21, 2010. Kagan was copied on three e-mails that discuss “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law.

On January 8, 2010, Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, wrote to Kagan’s deputy, Neal Katyal, asking for the office’s assistance in “how to defend against the inevitable challenges to the health care proposals that are pending.” Three minutes later, Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.” After Katyal volunteered, Kagan responded, “You should do it.”

A few hours later, Katyal updated Hauck, writing, “Brian, Elena would definitely like OSG [the Office of Solicitor General] to be involved in this set of issues.” Katyal added,”I will handle this myself, along with an Assistant from my office, (Name Redacted), and we will bring Elena in as needed.” (Emphasis added.)

(Click “like” if you want to end abortion! )

When Katyal suggested Kagan should attend a meeting “to help us prepare for litigation,”  Kagan ended the paper trail cold, responding, “What’s your phone number?”

Katyal would later insist Kagan had been “walled off from Day One,” and he had “never discussed the issue with her one bit.”

Kagan and Lawrence Tribe later exchanged e-mails celebrating the passage of the health care law.

Sen. Jeff Sessions, R-AL, called Kagan’s appointment of Katyal, “the legal equivalent of a firm’s senior partner delegating work to a junior associate.” Citing the Tenth Circuit Court’s ruling in United States v. Gipson and other precedents, Sessions argued that Kagan’s actions are all the law “requires to trigger mandatory recusal.” 

It is not merely conservatives who believe Kagan should have stepped aside.

Eric Segall, who describes himself as “a liberal constitutional law professor for more than 20 years, and a loyal Democrat,” wrote in Slate, “Elena Kagan should recuse herself from hearing challenges to the act.” He said even “the lack of certainty points to recusal, because it raises serious doubts…about the appearance that a Supreme Court Justice with a conflict of interest is sitting on a major case.” He noted no other justice had been as closely tied to a lawsuit as Kagan is to ObamaCare.

“She ought to step aside,” he wrote. “Nothing less than the integrity of the Supreme Court is at stake.”   

One of Kagan’s judicial heroes, Thurgood Marshall, disqualified himself in 98 of the 171 cases – 57 percent – decided his first year on the High Court, after leaving his post as Solicitor General. 

During her confirmation hearings, Kagan pledged to recuse herself if “officially formally approved something” or “played a substantial role.” 

Although that falls short of the legal standard, Chief Justice Roberts has taken a hands-off approach, writing at the end of last year that, because of the justices’ “exceptional integrity” and “character,” he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.” 

Fitton wrote in a letter to Kagan that he did not call on her to recuse herself but demanded she “address the facts surrounding your tenure as Solicitor General” and her role in the PPACA legal defense “‘as they existed,’ not as they are being ‘surmised or reported.’” Yet she has refused to clarify her role in the defense.

“Her silence certainly does not instill faith that there isn’t something there that would cause even greater concern,” Fitton told LifeSiteNews.

For years, Judicial Watch has led the legal effort to uncover Kagan’s role in the administration’s defense of the unpopular and far-reaching law, and determine if she is required to refrain from weighing in on the case. 

Fitton told LifeSiteNews.com the fight would continue. “This issue is not over,” he said.

The organization is currently in another lawsuit, requesting all calendars, agenda, and phone logs for the meetings their previous document cache revealed. 

“I predict we’re still going to get documents about the Kagan question. It surely will be interesting to see what they disclose.”


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Michelle Kaufman, New Zealand Correspondent

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Abortion group targets pro-life doctors, nurses with new website: New Zealand

Michelle Kaufman, New Zealand Correspondent
By Michelle Kaufman

Pro-life health practitioners and crisis pregnancy centres in New Zealand are the target of a new website designed to intimidate those who choose not to refer for abortion or prescribe contraception.

The website, My Decision, is created by the Abortion Law Reform Association of New Zealand (ALRANZ). 

The site lists health practitioners and crisis pregnancy centres which they believe women should avoid.  The incomplete list includes the names of individuals or organisations, the region and town, and whether they are a doctor, nurse or other provider. 

Women are asked to submit their stories of “hostile or unhelpful health professionals.”  The stories are non-identifying and can be edited for length or clarity.  At the time of writing only two stories had been posted.

In an earlier blog post, ALRANZ mentioned that the new website, which was still under construction at the time, is “aimed at shining the light on ‘conscientious objectors’… who deny people the reproductive healthcare they want or need.”

Right to Life NZ says they believe the site is “denigrating the good name and reputations of health professionals who believe that abortion is a harmful choice.”

Click "like" if you are PRO-LIFE!

Under New Zealand law, health practitioners can object to providing reproductive health services according to their conscience.  However, there is one caveat – they “must inform the person who requests the service that he or she can obtain the service from another health practitioner or from a family planning clinic.”

 “Sonscientious objection is a fundamental right and one that must be preserved if we are to continue to live in a free and civil society,” said Chris O’Brien, Vice President of Right to Life NZ. “We risk tyranny if this right is taken away.”

“There are very good doctors that appear on that website” said Dame Colleen Bayer, whose Dunedin Family Life Crisis Pregnancy Centre is also named.  “These doctors speak truthfully and have real care and concern for their patients.  Women do themselves a disservice to discount them based on this information.”

The resource section on the My Decision website links to ALRANZ, Family Planning (an affiliate of International Planned Parenthood Federation and an abortion provider), and the website Abortion Services in New Zealand. 

The Abortion Services website is sponsored by ISTAR Ltd, a registered Charitable Trust which is the sole importer of mifepristone into New Zealand.  ISTAR also provides Manual Vacuum Aspiration equipment for early surgical abortions.

ALRANZ, was instrumental in the writing of the Greens abortion policy, which was unveiled earlier this year.  That policy aims to take abortion out of the Crimes Act making it more accessible.  The policy also targets health professionals who may conscientiously object to ensure they refer patients on to a “neutral practitioner”.

More information about freedom of conscience in healthcare 


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The government is proposing allowing the killing of pre-born babies suspected of being disabled and those conceived through rape or incest.
Thaddeus Baklinski Thaddeus Baklinski Follow Thaddeus

Northern Ireland considers allowing killing disabled unborn babies: pro-lifers condemn

Thaddeus Baklinski Thaddeus Baklinski Follow Thaddeus
By Thaddeus Baklinski

Northern Ireland’s leading pro-life group, Precious Life, has condemned this week's announcement by Justice Minister David Ford that a consultation on changing the abortion law will be "ready by autumn." The government is considering allowing the killing of pre-born babies suspected of being disabled and those conceived through rape or incest.

“Abortion is a serious criminal offence in Northern Ireland,” said the director of Precious Life, Bernadette Smyth. “The law here protects unborn babies, and David Ford as Minister for Justice must ensure that all children are legally protected."

Last December, Ford revealed he would be undertaking a consultation to consider changes to the law after he heard the stories of two women, who complained that they had not been allowed to abort their babies who had been diagnosed with anencephaly. Instead, they said, they had traveled to Britain for abortions.

Abortion was refused under Northern Ireland’s laws because the diagnosis of anencephaly for the child poses no medical threat to the mother.

Click "like" if you are PRO-LIFE!

On Monday Ford told the BBC that the Department of Justice would bring forward its consultation paper on changing Northern Ireland's abortion laws by the fall.

However, Smyth warned that “the core ethical principle which must underpin this discussion is that every child deserves the right to life regardless of how short their life may be, and regardless of the circumstances of their conception."

She vowed that Precious Life will launch a public campaign in support of the life of all unborn babies.

“We all feel enormous sympathy for parents in these traumatic and distressing cases," Precious Life stressed in a statement. "But parents in these difficult situations deserve much more than our sympathy – they need a professional support system in place, which will provide them with help, support and resources.

"Precious Life are resolved to work towards a solution that loves and protects both mother and baby. Once again we call on the Health Minister to immediately establish perinatal hospice services for parents who have received a poor or difficult prenatal diagnosis for their baby,” said Smyth.

 

Contact:

Justice Minister David Ford
Department of Justice
Stormont Estate
Belfast, Northern Ireland
BT4 3SG
Phone:(028) 9076 3000
Email: via website (http://www.dojni.gov.uk/contact-us.htm)


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80% of parents who have an unborn child with spina bifida choose abortion. But Chad Judice (pictured with Eli) knows that life is worth it.
Dustin Siggins Dustin Siggins Follow Dustin

Abortion? No way. Dad says son with spina bifida is a ‘gift’ to the family.

Dustin Siggins Dustin Siggins Follow Dustin
By Dustin Siggins

What is the most pro-life, pro-God influence in your life? According to Catholic author and speaker Chad Judice, his five-year old, disabled son has been a tremendous source of happiness and faith for even the hardest of hearts.

In an op-ed published in The New York Post, Judice writes that when he and his wife found out their unborn son Elijah had spina bifida, they were offered the option of abortion. While they chose life, it didn't stop them from fearing the worst for their careers, eldest child, and Eli.

"That evening...Ashley cried as she read to me from the literature we’d been given," writes Judice. "It said 80 percent of parents who receive a spina bifida diagnosis choose abortion."

"And it told us that our son might have learning disabilities and be paralyzed from the waist down, unable to ever walk."

According to WemMD.com, the two most common forms of spina bifida have few, if any effects, on those who have them. However, the most rare and most aggressive form of the disability can result in significant problems for life:

  • Little or no feeling in their legs, feet, or arms, so they may not be able to move those parts of the body.
  • Bladder or bowel problems, such as leaking urine or having a hard time passing stools.
  • Fluid buildup in the brain (hydrocephalus). Even when it is treated, this may cause seizures, learning problems, or vision problems.
  • A curve in their spine, such as scoliosis.

Eli's form of spina bifida was severe, but -- as it turned out -- manageable, writes Judice. Despite surgeries and "medical challenges," he was out of the hospital within thirty days, though seizures and surgeries would continue to challenge the family. At five-and-a-half, he is entering kindergarten, learning to walk with modern technology, and "his intelligence is at or above average, and he's very talkative."

But perhaps the greatest miracle of all, Judice says, is the effect Eli has had on those who are outside of the family. His story has helped "some pregnant mothers...to reject abortion," and "rekindle the dormant faith of some...drawing them into a life with more room for God and family."

One of those rekindled Christians was a man who, after years in prison, prayed for Eli "as he recited The Lord's Prayer." According to Judice, "it was the first time he’d prayed in 30 years."

Since Eli's birth, Judice has written two books about his son and their family. "Waiting for Eli: A Father's Journey from Fear to Faith" was the first, and has received praise from Father Frank Pavone of Priests for Life. According to Pavone, it is "an inspiring story of faith, hope, love, and the power of prayer."

"The world judges the value of human life by physical perfection, but God sees things differently. To Him, we are perfectly lovable in our imperfection. Uplifting in its reverence for human life in its most fragile stages, WAITING FOR ELI will encourage pro-life activists everywhere, from the most seasoned to the newly initiated."

Also unstinting in praise was the Chair of the Committee for Pro-Life Activities, Archbishop Daniel Cardinal Dinardo, who writes for Judice's website that the book "chronicles [Judice's] spiritual journey from fear of one’s personal limitations to self-abandonment to the divine mercy of God’s providence."

The second book, "Eli's Reach: On the Value of Human Life and the Power of Prayer," received the "Best Book by Small Publisher" award in 2013 by the Catholic Press Association.

"I think of Eli as God’s special gift to my family," Judice wrote in the Post. "And as I share about him, Eli’s story softens hearts and brings people to a greater appreciation of the beauty and sacredness of life."


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