Updated: July 8, 2008 - In his May 2008 column in the archdiocesan paper, The Leaven, Archbishop Joseph F. Naumann of the Archdiocese of Kansas City in Kansas publicly chastised Kansas governor Kathleen Sebelius:
“In no small part” due to the governor’s actions and inactions, said the Archbishop, “Kansas has become infamous for being the late-term abortion center for the Midwest.”
If anything, Archbishop Naumann understated the state’s notoriety. Incredible as it may seem, Kansas has emerged as the late-term abortion capital of the world.
This is no exaggeration. Indeed, in 2007 more than 90 percent of the late-term abortions in Kansas were performed on women from out of state. In the past two years alone, women have come from 48 states and many points beyond to have abortions in Kansas.
The state’s most efficient practitioner of this dubious art, Dr. George Tiller of Wichita, has boasted on his website of having “more experience in late abortion services with fetuses over 24 weeks than anywhere else in the Western Hemisphere, more than 60,000 since 1973.” He has also claimed, with some accuracy, “I am the outpatient abortion provider of the last resort in the United States, the Western Hemisphere and Australia.”
The contribution of Comprehensive Health of Planned Parenthood of Kansas & Mid-Missouri to the late-term total cannot match that of Tiller’s Women’s Health Services, but that it contributes at all may come as a surprise to Planned Parenthood’s supporters in the affluent Kansas City suburb of Overland Park. Local CEO Peter Brownlie has repeatedly said that Planned Parenthood did not perform any abortions past the 22nd week of pregnancy, the legal definition of “late-term.”
Most Kansans remain in the dark about the state’s questionable celebrity for the simple reason that the media throughout the state, and especially in the Kansas City area, have chosen not to enlighten them. Thus, the scolding of Sebelius had to have come as a surprise to many, Catholics included. From what they had been told, the “moderate” Democrat Sebelius—there are no liberals in Kansas— was the best thing to happen to the state since ethanol.
Indeed, the handsome 60-year-old has become something of a political centerfold for the national Democratic Party. Vogue Magazine did a recent feature of the governor in designer gowns. Time Magazine named Sebelius one of America’s five best governors. The Democrats tapped her to give the party’s response to the president’s most recent state of the union speech, and Barack Obama, so rumor has it, may choose her as his would-be VP.
In his very public rebuke of Sebelius, the Archbishop joined a swelling grass roots chorus of those who would be silent no longer about the state’s unlikely status as abortion capital. This chorus includes church leaders, a variety of pro-life groups, some stalwart Republican public officials, and more than a few unaffiliated concerned citizens. Serving as choirmaster is the much-maligned District Attorney of Johnson County, Phill Kline.
For years, the media have steadfastly refused to ask themselves—why Kansas? The answer, as Kline has revealed, is not that the state has uniquely liberal abortion laws, but that the state has been uniquely indifferent to the law’s enforcement. Therein lies the scandal.
The abortion industry ignores the law
The story could begin in any number of places, but a likely starting place is 2002, the year Sebelius ran for governor and Kline ran for Attorney General.
A state representative from suburban Kansas City, Kline, then just 42, showed real promise of becoming a statewide, even a national political leader. Good looking and well spoken, Kline had the advantage of being a Republican in a state that gave George Bush 60 percent of its vote both times. He had the disadvantage, however, of being unapologetically pro-life in a state whose reigning political establishment prized “moderation” even above party affiliation.
As a state representative five years earlier, Kline had helped draft legislation to check the state’s then thriving late-term abortion business. To understand the controversy that has followed, it is necessary to understand the law and the logic behind it.
Although in Roe v. Wade the U.S. Supreme Court threw out the laws of all fifty states and declared abortion a legal option everywhere, the court has consistently allowed the states some regulatory power. After the 1992 Casey decision, the legal marker for state intervention became “the viability of the fetus.” By “viable” the court meant that the unborn would be able to “live outside the womb, even if requiring medical assistance.”
When Kansas enacted its ban on late term abortion in 1998, the existing science estimated viability in the 20-24 week range, and Kansas codified it at 22 weeks. If anything, science has since improved the life chances of babies born at that stage. Significantly, too, the state’s right to regulate late-term abortions has not diminished since 1998.
In the interest of drafting a bill that could pass Supreme Court muster, Kansas lawmakers conceded to abortion supporters the possibility of valid medical reasons for abortions. In return, however, they demanded that practitioners validate the integrity of the decision to abort in two critical ways.
One was that the physician would file a report with the Kansas Department of Health and Environment (KDHE) that would demonstrate the reason for the abortion and the basis for that determination. This was to be a report, subject to review by the Kansas Board of Healing Arts and the state attorney general. Given the life and death issues involved in the determination, no single report in the state of Kansas was to be taken more seriously.
The second was that in the case of an abortion on a viable baby, a second unaffiliated physician would have to confirm the risk to a mother’s life or health.
As written, the new law allowed for a late-term abortion on a viable baby only “to preserve the life of the pregnant women” or to prevent her from suffering “substantial and irreversible impairment of a major bodily function.” Although these exemptions are required by Roe v. Wade, pro-life groups accept them because they know, as Kline did, that in no known circumstances does a late-term abortion spare a woman “substantial and irreversible” physical or mental impairment, let alone her life.
Tlller works the system
The new law and the reporting requirement should have put a major dent in the flourishing late-term business of Dr. Tiller and a handful of others, but by this time Tiller had learned to work the system. His first step was to use his influence to finesse a mental health exception. But even the then attorney general, moderate Republican Carla Stovall, insisted that mental health problems had to be “permanent and substantial” to justify a late-term abortion.
Undaunted, Tiller made enough strategic donations to enough politicians to assure that no one enforced the law as written or even as interpreted. In fact, the number of late-term abortions in Kansas actually increased in the three years after the restrictions were passed and began to decrease only after Kline announced for attorney general.
When Kline chose to run in 2001, Tiller sensed trouble and responded accordingly. He invested indirectly in his moderate republican primary opponent, and when Kline prevailed, funneled more money still into the campaign of Kline’s general election opponent, an obscure mid-state Democrat named Chris Biggs. Like an old world mafia don, Tiller understood that he and his business, though tolerated, could not be embraced publicly. Were Biggs to receive campaign cash from Tiller himself or his ProKanDo political action committee (PAC), the GOP would use that information against Biggs. So Tiller and Democratic operatives set up a separate PAC called Kansans for Democratic Leadership (KDL).
KDL existed for a total of 36 days. Except for a $1,000 donation from a labor union, all of KDL’s $265,000 reported income came from ProKanDo or Tiller himself, and none of these transactions were made public until after the election. Chairing KDL was Tom Sawyer, a Democratic state representative from Wichita and a recipient of Tiller’s largesse. In 2002, no PAC in Kansas spent more than ProKanDo.
Given the pro-choice bias even in Midwest newsrooms, most of the state’s media endorsed the unheralded Biggs. The then-governor, moderate Republican Bill Graves, refused to endorse Kline. The KDL-sponsored ads heated up the airwaves in the last weeks, warning Kansans about the extremist in their midst. And a badly bruised Kline eked out a half-percent victory in an election that should have been a landslide.
A more opportunistic politician would have heeded the message from the moderate establishment and left the abortion industry alone, but Kline was not easily dissuaded.
Given that the numbers coming out of Tiller’s clinic had increased since the tougher law had been written, Kline began to review the KDHE reports to see just how Tiller had been able to circumvent the law. If Kline had not acted, no one would have. The attorney general and the Board of Healing Arts have access to these reports, and the Board had repeatedly given Tiller a pass.
The back of this one-page KDHE abortion report asks the doctor how he verified if the baby was “viable”—that is, able to live outside the womb at the time of the abortion.
The form then asks the doctor to check one of two boxes: one if the abortion was necessary to prevent the “patient’s death”; the second if it were necessary to avoid “substantial and irreversible impairment of a major bodily function.”
To date, not a single doctor in Kansas has checked the “prevent patient’s death” box. All check the “impairment” box. The next question on the form asks the “reasons for determination” of death or impairment. The subsequent question asks the “basis” for that same determination.
In reviewing the KDHE reports, Kline noticed that in the spaces provided for “reasons” and “basis” Tiller offered no medical diagnosis. He simply reiterated the wording of the law, namely “to avoid substantial and irreversible impairment of a major bodily function.”
Given the gravity of the procedure—that is the taking of a viable baby’s life—Kline believed that some measure of respect for the legal process was due. There was only one way to assess the legitimacy of the work behind that process, and that was to subpoena the patient files.
The files in question were to be found at two Kansas abortion clinics—Tiller’s Women’s Health Care Services in Wichita and Comprehensive Health of Planned Parenthood in Overland Park. Both clinics, as Kline suspected, were politically wired. Using the courts and their allies in government and the media, the clinics would launch a fierce campaign to derail the investigation and define Kline as a religious fanatic, a hayseed Torquemada.
“It is unlawful to refuse to allow law enforcement officers to inspect wildlife in possession,” reads the Kansas state law on fishing, a law that, as fishermen know, is vigorously enforced. Before his ordeal was through, Kline would envy the enforcement powers of the state’s game wardens.
Tiller ignores Kline
Although Tiller proved more cautious with Kline in office, an abortion that took place in May 2003 would reveal just how confident Tiller was in his ability to weather even Kline’s tenure as attorney general. It would also show how gruesomely routine were Tiller’s violations of state law.
That year, as she would later testify before the Kansas legislature, the then 18-year-old Michelle Berge, now Armesto-Berge, was pressured by her mother to abort her baby in the 26th week of her pregnancy.
“It’s murder and I will not do it,” Michelle protested, but her mother had other plans. Staff at Tiller’s clinic eased those plans along by informing Michelle of a Catholic group that “believed in abortion” and promised baptism for the aborted baby. In reality, the Catholic Church considers abortion “murder” and “always morally evil,” an article of faith that has so far eluded the ostensibly Catholic Kathleen Sebelius.
As Armesto-Berge would soon learn, Tiller honored Kansas law about as faithfully as he proffered Catholic doctrine. Not one woman among the five with whom she was being processed, herself included, risked physical or mental health impairment of any sort.
The women talked among themselves during their stay in Wichita. “All were there,” Armesto-Berge testified, “because they were told [late-term abortion] would solve their problems.” These problems ranged from unreliable boyfriends to socially ambitious parents.
After the group watched a video on “Dr. Tiller’s legacy,” a nurse took Armesto-Berge to a private room and prepared her for an ultrasound. When she tried to look at the screen, the nurse abruptly moved the screen away. She was then taken to another room. There a female doctor inserted a large needle twice to make sure she injected the unborn child, “and that,” said Armesto-Berge, “is when the baby was killed.”
Only after this procedure was completed did Armesto-Berge fill out the paperwork and meet with a counselor, a charge proven by time stamps on her medical records. She also met with a self-identified Unitarian minister who consoled her with the hitherto unknown Christian doctrine, “You have to take care of the ones who are here, not the ones who aren’t born.”
After the initial injections Armesto-Berge underwent a variety of preparations to facilitate the delivery of the dead baby. A late-term abortion of this kind usually takes three-days. Like most others, Armesto-Berge spent her nights at a Wichita hotel. On her second day, Armesto-Berge met casually with Tiller for the first time but only for a few minutes. He talked to her about his own teenage child and how presumably, “if in the same situation, would do the same thing.”
The next morning, Armesto-Berge’s fiancé found the hotel at which she was staying. “He begged me not to go through with the abortion,” Armesto-Berge lamented, “and I told him it was too late.” The fiancé was sincere in his affection. Despite the abortion, he later married Armesto-Berge, and today the couple has three living children.
By the third day Armesto-Berge’s labor had proceeded to the point where she was ready to deliver. What follows is not for the faint of heart.
“I remember yelling at the nurse and calling her names and telling her I did not want to be on the toilet,” Armesto-Berge recounted. “I finally birthed the baby and I distinctly remember seeing the baby on the floor to the left of the toilet.” Said Armesto-Berge, “That image haunts me daily.”
There was no follow-up care of any kind for the young woman. Nor did Tiller’s clinic call to see that there was. Only when Armesto-Berge obtained her medical records four years after the abortion did she learn the depths of Tiller’s deceit: he had falsely designated her baby “non-viable,” a status that requires a lower standard of validation.
For an abortion on a viable baby, a second doctor, one not affiliated with the abortionist, must verify that the abortion is needed to prevent the mother’s death or impairment. Armesto-Berge’s husband believes that if his baby had been properly identified as viable, and a second doctor sought, he might have had time to reach Michelle early enough to save their baby.
The Industry finds a savior
To complement its legal and media strategies, the abortion industry contributed to a political strategy as well. In October 2005, after some serious backstage engineering by Sebelius and her cronies, popular Johnson County District Attorney Paul Morrison, a moderate Republican, announced that he would switch parties to run against Kline in November 2006.
“I pledge to you to uphold the laws of the state for everyone,” Morrison said at the time, adding with a none too subtle nod to the abortion industry, “I will not pursue a narrow agenda that benefits just a few.”
While Kline waited for the lower court to release the patient files that he had subpoenaed, the Kansas abortion industry went to work on Kline. Tiller invested a small fortune to unseat him, much of it through operations like “Kansans for Consumer Privacy Protection,” an anonymous cut-out which just happened to have the same Wichita address as Tiller’s ProKanDo PAC.
ProKanDo identified voters and paid for phone calls. The aforementioned “consumer group” then used the information to send out six, coordinated, slick “Snoop Dog Kline” mailers in the weeks before the 2006 election. The mailers accused Kline of abandoning the fight on crime in favor of “snooping into women’s private medical records.” Between his PAC and the non-profit at the same address, Tiller and allies spent $1.2 million on the 2006 campaign alone.
From the beginning, the media should have seen how contrived were the abortion industry’s worries about patient privacy. Tiller’s website, for instance, provided the following caveat for prospective patients: “In connection with any fundraising, we may disclose to our fundraising staff demographic information about you (e.g. your name, address and phone number) and dates of health care that we provided you.” Patient information, the web site cautioned, also passed through any number of insurance companies and third party payers.
When Mary Kay Culp, the head of Kansans for Life, made the media aware of Tiller’s willingness to share patient data with fundraisers—including the date of the “health care”—Tiller’s clinic immediately removed the notice from its web site. For most of the state’s media, this was just as well. They preferred to run with the Snoop Dog message. The Kansas City Star’s support for “reproductive justice” in the battle against the “anti-choice extremist” Kline was so passionate, in fact, that Planned Parenthood honored the Star with the “Maggie,” its top national prize for editorial writing.
Two former moderate Republican attorneys general, Bob Stephan and Carla Stovall, endorsed Morrison, as did former state GOP chairman Dennis Jones. Former Republican state chairman, Mark Parkinson, signed on to co-chair Morrison’s campaign and later formally switched parties to run as Sebelius’s lieutenant governor.
Tiller dollars flowed to the Democratic Party, and campaign dollars flowed from the Democrats and moderate Republicans to Morrison. This gave him a two-to-one edge over the incumbent Kline in real dollar support, above and beyond Tiller’s indirect aid and the full-throated support of the media.
GOP picks principle over progress
Morrison won the 2006 election handily. When he made his acceptance speech on election night, he drew great cheers in claiming his as “a victory for Kansans who want to make sure their most private personal records are kept private.” Snoop Dog Kline had been effectively muzzled—or so the moderate establishment presumed.
On December 11, 2006, much to the establishment’s professed horror, the largely conservative Republican precinct captains of Johnson County ignored the appeals of their moderate brethren and voted for the now widely scorned Kline to fill the remaining two years of Morrison’s term as district attorney.
“The Johnson County Republican Party just thumbed its nose at voters by installing outgoing Attorney General Phill Kline as the county’s new district attorney,” wailed The Wichita Eagle.
“Phill Kline and his supporters have shown a stunning disregard for voter sentiment in Johnson County. They have a lot of gall,” thundered The Kansas City Star.
When one editorial writer at the Star accurately attempted to explain how the precinct captains “put principle over politics” in choosing the badly scarred Kline, the Star’s editors changed the headline to the tellingly muddled, “GOP picks principle over progress.”
At year’s end, Star columnist Rhonda Chriss Lokeman summed up her paper’s Orwellian take on the issue at hand by awarding its fanciful 2006 “Kill and Be Killed Award” not to Tiller or Morrison, but to Kline.
“Theocrat Kline is obsessed with George Tiller, who performs abortions in Kansas,” Lokeman elaborated. Kline, of course, showed no inclination to theocracy, and to describe Tiller as “someone who performs abortions” was like describing Tiger Woods as “someone who plays golf.” What made Lokeman’s indictment all the more worrisome was that she was married to the Star’s then editor and now publisher and president, Mark Zieman.
Morrison calls Tiller charges “ridiculous”
Despite the crushing indictment of the media, Kline refused to roll over. Just before he left office as attorney general, after years of legal struggle, he had managed to secure the redacted records of Tiller’s clinic in Wichita and Planned Parenthood’s in Johnson County.
While late-term abortion law demands that impairment to the mother be serious and irreversible, Kline saw that Tiller’s files were full of dubious diagnoses like “single episode, major depression” and “adjustment disorder” that seemed to be neither. He promptly filed 30 counts against Dr. George Tiller’s Wichita clinic for performing illegal late-term abortions.
With the media wind filling his sails, Tiller confidently appealed to his political allies. One of them, Sedgwick County District Attorney Nola Foulston, found a friendly judge to dismiss the charges against Tiller on jurisdictional grounds. The case was appealed to the Kansas Supreme Court, but when Morrison settled in as attorney general, he asked that the appeal be dropped. He did not meet much resistance. In Kansas, it should be noted, all Supreme Court judges are appointed by the governor in a process that gives undue power to the state’s legal bar, a creature of the moderate establishment.
To be sure, Morrison promised to examine the Tiller medical records that Kline had successfully subpoenaed “inside out, backwards and forwards, and under a neutron microscope.” But no one, his friends included, much believed Morrison.
Sebelius accepts wrong red T-shirt
To encourage lawmakers to get Morrison moving, pro-lifers rallied in Topeka at the Capitol, wearing red T-shirts that read on the front, “Charge Tiller—It’s the Law.” On the back of the shirts were two appropriate quotes separated by 1900 years. The first from Gaius Petronius read, “What power has law where only money rules” and the second from Martin Luther King Jr., “Injustice Anywhere is a Threat to Justice Everywhere.”
These T-shirts and the rally itself held little interest for Governor Sebelius. A few weeks after the rally, on April 9, 2007, Sebelius evaded Morrison’s neutron microscope and honored the troubled doctor and his staff at an elegant but extremely discreet dinner at Cedar Crest, the governor’s Mansion. At the event, the governor accepted a red T-shirt from Tiller himself but with a much different message: “Trifecta 2006: Sebelius, Parkinson, Morrison.” In a wonderfully revealing photo, Sebelius points at Tiller as if to acknowledge his contribution to that victory.
Tiller’s generosity was apparently not in vain. A month later, in May 2007, Morrison leaked his exit strategy in the Tiller affair through an influential media supporter, Steve Rose of The Johnson County Sun.
In its casual acceptance of the unthinkable, the Rose column on the Sun front page calls to mind Hannah Arendt’s famous phrase, “the banality of evil.” Rose acknowledged Tiller’s boast that he had more experience in late abortion services than anyone in the Western Hemisphere.
Rose then assured the “confused” reader that Tiller did not practice partial birth abortions but rather the presumably more benign “late-term viable abortion.” In this procedure, the good doctor solved the apparent viability problem, said Rose soothingly, by “taking apart the fetus inside the uterus and removing pieces through the dilated cervix.”
“Unless the Kansas Legislature changes its law,” Rose continued, “Dr. Tiller can continue that procedure every day of the week, as well as other late-term abortion techniques.”
Rose fully misunderstood the law, which was never the issue. The issue was its enforcement. And this is where those pesky medical records came into play. Under Kansas law, as mentioned, the records have to show evidence that a woman carrying a viable unborn child could be saved from death or “substantial and irreversible impairment of a major bodily function” only through abortion.
Rose claimed that Morrison had reviewed the subpoenaed files in question and found many of the charges “ridiculous.” That much said, Rose had “a strong hunch” that Morrison would file a few misdemeanor charges “pertaining to the lack of notification to the state,” suggest a modest fine, and call off Kline’s “witch hunt.”
Dr. McHugh comes to Kansas
Rose obviously did not anticipate the appearance in Kansas of Dr. Paul McHugh. Before leaving office, Kline had contracted with the impeccably credentialed Harvard-trained psychiatrist. He was to review the Tiller files to see if they honored Kansas law from a psychiatric perspective since very nearly all the files claimed a mental health exemption. Anticipating Morrison’s end game, pro-life forces brought McHugh to Kansas City in June 2007 to share his insights.
To this point, Morrison had showed no interest in McHugh or his findings. Despite McHugh’s role as chief medical witness on the Tiller case, no one from his Morrison’s staff had bothered to ask his opinion during the five months Morrison had been in office.
Morrison took much more interest in the good doctor when McHugh came to town. In fact, he sent several staffers to a planned McHugh press conference in suburban Kansas City. They were there to confront McHugh and deliver a menacing letter demanding that he “cease and desist from all public comment” about his work.
The letter was a bluff, and it was too late in any case. In an earlier taped interview, now on YouTube, the gentle, grandfatherly psychiatrist dispassionately showed just what a sham the whole Tiller enterprise was. When asked whether he had seen any one patient file that justified a late-term abortion on the basis of major or irreversible psychiatric damage, McHugh unequivocally responded, “I saw no patient file that justified abortion on that basis.”
What McHugh did see were insubstantial, poorly documented evaluations of disheartened young women whose stated reasons for wanting an abortion were as trivial as hoping to see a rock concert or missing a prom. He was confident too that “100 percent” of his fellow psychiatrists would agree that none of these cases showed any sign of irreversible damage.
As to the “single episode, major depression” and “adjustment disorder” that Tiller claimed for his patients in their files, McHugh could find no evidence of either. McHugh insisted that a serious biographical history should have been performed on every young woman, especially “if you are going to take a life on the basis of a psychiatric exam.”
“I had to ask myself,” said McHugh of Tiller’s clinic. “is any person ever found to be not appropriate on psychological grounds for an abortion?”
Two weeks after McHugh came to town, following nearly six months of dithering on the charges against Tiller, Morrison chose Thursday afternoon, June 28, to announce their disposition.
This was a classic news dump. That morning the immigration bill had died in the U.S. Senate and sucked all the air out of the conservative media. Morrison dropped his announcement into the vacuum. His press conference was stunningly ugly and disingenuous. He spent the greater part of it promoting his own record and attacking Kline for a wide variety of offenses, all of them either imagined or irrelevant.
Morrison noted how “ironic” it was that Kline did not file charges until the end of his term, “all the while knowing that I [Morrison] would have to deal with that.” As Morrison knew, however, it was not Kline who had ginned up the irony, but Tiller and his allies. They had fought for years to keep the medical records away from prying eyes, and the state’s Supreme Court largely obliged them.
As Morrison surely suspected, Tiller had much to hide. But the way Morrison interpreted the relevant statute, it did not matter whether a woman had a legally justifiable need for an abortion as long as two unaffiliated doctors were willing to say that she did, even if their diagnoses were incomplete or transparently false. This finessing of the law allowed Morrison to showily dismiss all of the charges Kline had brought and ridicule Kline for bringing them.
Lest he be accused of a total whitewash, Morrison had to charge Tiller with something. And so he noted that the two doctors sanctioning the abortions—Tiller himself and a Dr. Kristin Neuhaus—were, in fact, affiliated, and this relationship “thwarts the letter of that statute.”
The thwarting was much more serious than Morrison let on. The law mandated that the seconding physician not to be legally or financially affiliated with the first. It was written specifically to protect the unborn against the kind of indiscriminate rubber stamping Neuhaus had been doing for years.
Neuhaus was a piece of work. A former abortionist, and daughter of a politically active Democrat lawyer in Wichita, she had twice been cited by the Kansas Medical Board of Healing Arts as a danger to the public. One former patient even accused her of proceeding with an abortion after the women had withdrawn her consent. For several years Neuhaus had been using a P.O. Box as her office address.
Morrison seemed to be following the game plan leaked to the Sun’s Steve Rose a few weeks earlier: file a few misdemeanor charges, suggest a modest fine, and call the “witch hunt” off. The Star bought the strategy. “Doctors must scrupulously follow the law,” its editorialists comically opined. They praised Morrison’s “honesty and respect for the law” and heaped even more scorn on Kline given the “disturbing details” Morrison revealed about his work.
But Tiller did not get to be a stone cold abortionist in a deep red state by being stupid. Both and he and Neuhaus promptly denied a financial affiliation. Apparently, the wily Tiller did not pay Neuhaus for her opinion. The patients did directly and at his facility.
“I think [Morrison] is making a strained interpretation of the law,” said Neuhaus’s attorney. And while the lawyers dickered anew, Tiller continued to mock Kansas law by aborting perfectly healthy, viable babies for reasons no more serious than a teenager’s dismay about missing her prom.
Kline investigates Planned Parenthood
Kline had begun his investigation of Planned Parenthood’s abortion clinic, Comprehensive Health, in 2003 under the supervision of Shawnee County District Judge Richard Anderson. After exhausting a full spectrum of delaying tactics, Planned Parenthood finally turned over 29 incomplete patient files to Anderson in June 2006. It was not until October 2006, a month before his defeat in his re-election bid, that Kline finally took possession of the files.
When he received the relevant patient files from Planned Parenthood, as well as those from Tiller’s clinic, Anderson commissioned special counsel Stephen Cavanaugh to make sure each one of them was properly scrubbed of identifying information.
This Cavanaugh and two reviewing physicians took pains to do. Cavanaugh made this clear in a hearing on October 24, 2006, at which he testified that he had personally reviewed all of the files from both Tiller’s clinic and Planned Parenthood’s.
“I was confident that all identifiers had been properly redacted and the privacy of the female patients was protected,” Cavanaugh would later affirm. Had local journalists not so willfully blinded themselves, they would have seen through the “privacy” smokescreen right from the beginning.
In his review of the Planned Parenthood files, Cavanaugh turned up a problem he did not expect but that Planned Parenthood likely feared would be discovered all along: very few of the individual late-term abortion files contained a “determination of viability.”
As required by Kansas law, the abortion doctor must determine the gestational age of the unborn baby and, if more than 22 weeks, the baby’s viability. The originals of these reports are sent to the Kansas Department of Health and Environment (KDHE), but by law a copy must be kept in each patient file.
This is critical. Viable babies beyond 22 weeks cannot be aborted in Kansas without documentation of severe risk to the mother. In the 26 patient files that Cavanaugh cited there was no record of non-viability or maternal risk despite the fact that the unborn babies had passed the 22-week mark.
In an August 14, 2006 letter to Cavanaugh, the attorneys for Planned Parenthood replied that its non-viability reports for unborn babies beyond 22 weeks were kept in a “separate secure file.” This was an interesting admission in that local CEO Peter Brownlie, as mentioned, had all along been insisting that Planned Parenthood did not perform any late-term abortions.
The attorneys made another curious admission in this letter. If the gestational age were less than 24 weeks, they write, “The fetus is determined to be not viable.” This admission is substantiated in those KDHE reports for the unborn in the 22-24 week range that have been made public. In these, Planned Parenthood staff routinely note, “No reasonable probability at this gestational age.” This fatal presumption flies in the face of the state law, which demands that the physician exercise “care, skill, and proficiency” in determining viability once the unborn baby is beyond 22 weeks.
Anderson promptly authorized a subpoena for the KDHE reports. Planned Parenthood complied, or at least seemed to. For several months all seemed well for Planned Parenthood, but the surprise election of Kline as Johnson County DA had to have unnerved them. They must have known that Kline would soon discover still another problem with the reports, this one even more damaging.
Kline charges Planned Parenthood
With Judge Anderson’s expressed permission, Kline took copies of the Planned Parenthood records with him when he returned to Johnson County in January 2007. When he had settled in a few months later and began to review the KDHE reports, he immediately spotted the problem and alerted Anderson to the same: the reports submitted by Planned Parenthood that were supposed to be copies of the KDHE originals did not match the originals.
Troubled by what he saw, and knowing that the two prosecutors were at odds, Anderson wanted an unbiased opinion. So he quietly shared the reports with a document expert from the Topeka Police Department. As Anderson later testified in open court, the expert concurred with his suspicions that the reports “didn’t match up,” that they, in fact, appeared to have been counterfeited.
“It was visually obvious that some documents had been manufactured,” Kline would relate to the Supreme Court. Anderson would tell the same court, “Somebody may have committed a felony in an attempt to cover up a misdemeanor.”
In Topeka, meanwhile, Attorney General Paul Morrison launched a two-week review of the Planned Parenthood patient files. In the course of this review, April 10, 2007 to be precise, Judge Anderson told the assistant AG representing Morrison, “There is evidence of crimes in those records that need to be evaluated.”
The judge’s concern did not seem to impress Morrison, who was giving all the appearance of working hand-in-rubber glove with the abortion industry. In April 2007, he made an oral motion ordering Kline to hand the evidence back to the potential criminal defendant, Planned Parenthood. Kline refused to give the files up.
A few weeks after Morrison’s order to Kline, in May 2007, Planned Parenthood held a gala fundraiser in Kansas City, Missouri’s historic jazz district. The two featured guests were Planned Parenthood’s national president Cecile Richards and Governor Kathleen Sebelius, whose birthday was the rationale for the party.
By the end of the evening, according to the local Planned Parenthood newsletter, “Hundreds of PPKM supporters were dancing in a conga line around the concert hall.” Leading the “dancing pack” was Peter Brownlie, the local CEO whose abortion clinic was at the center of a deadly serious criminal investigation. The Planned Parenthood crowd “sure knows how to have fun!” enthused the newsletter reporter.
A few weeks after the party, Planned Parenthood secretly made an appeal to the Supreme Court. On June 7, its attorneys demanded that the patient files be returned and that Kline be held in contempt. In a rare and inexplicable move, the Supreme Court agreed to seal this case.
“It’s unusual for the target of a criminal investigation in Kansas to sue the prosecutor,” the Star would later report with some wonder. The suit would eventually cost Kline at least $140,000 in legal fees, which the state is still refusing to cover.
Later in the month of June, Morrison showily “cleared” Planned Parenthood of all wrongdoing with much applause from the media and the abortion industry. As Morrison was coming to understand, however, he was fighting a two front war. Anderson still held copies of the patient files from Planned Parenthood, and he wasn’t giving them up either. On July 9, 2007, Morrison filed a motion for Anderson to return the files to Planned Parenthood despite Morrison’s awareness that the viability reports were, to say the least, suspect.
Morrison’s office tipped off Planned Parenthood about the motion, and one of its attorneys, Pedro Irigonegaray, showed up unannounced in Anderson’s office a few days later. Irigonegaray demanded the patient files, but Anderson, as he would later testify, was not about to hand them over.
“These records do not match,” Anderson told Irigonegaray. The Planned Parenthood attorney continued to demand them, chiding Anderson as “unpredictable.” Anderson was stunned by Irigonegaray’s demeanor. He had known the Planned Parenthood attorney for twenty-five years. “Look at these records,” Anderson told him. “There is a problem here.”
Unmoved by Anderson’s concerns, Morrison filed a suit with the Supreme Court against the judge and joined Planned Parenthood’s suit against Kline.
Kline fully understood the reason for Planned Parenthood’s anxiety, and he quickly took the offensive. In October 2007, Kline presented his evidence to District Court Judge James Vano, who found “probable cause” of crimes having been committed and allowed the case to proceed. On October 17, Kline promptly filed 107 counts, 23 of them felonies, against Planned Parenthood’s abortion clinic, Comprehensive Health.
The abortion industry and its shills cried foul. Ashley Anstaett, Morrison’s spokeswoman, told The Associated Press that Attorney General Morrison had already reviewed Kline’s accusations and found no wrongdoing. “We are skeptical that these charges have any merit, and we continue to wonder how much politics influenced Mr. Kline’s decision to file these charges,” Anstaett said.
Judge Anderson was proving no easier to intimidate than Kline. That same month, October 2007, he responded to Morrison’s petition that he return the original medical records both to Tiller’s clinic and Planned Parenthood respectively.
Returning this evidence, Anderson told the Supreme Court, “would unacceptably increase the risk that the evidence could be lost, destroyed or compromised while active investigations and prosecutions are on-going.”
“It is difficult to understand,” Anderson added emphatically, “how this would benefit the citizens of the state of Kansas.”
The legislature weighs in
In August and September of 2007, concerned by what Kline was discovering, a special joint version of the Federal and State Affairs Committee of the Kansas legislature held hearings on post-viability and late-term abortions in Kansas.
It was here that Michelle Armesto-Berge offered her compelling testimony. Tiller employee, Julie Burkhart, countered by showing a video interview of two very sincere couples, whose unborn babies had been diagnosed with fatal fetal anomalies. They turned to Dr. Tiller and on the video expressed their appreciation for his services.
Although dramatic, the video spoke to the shell game the abortion cabal had long been playing with the people not just of Kansas but of America: talking about one reality to distract from another. In this case, the Tiller surrogate used the abortions of two non-viable babies—something legal in Kansas—to distract from the agenda of the hearings, namely illegal, post-22 week abortions performed on viable, unborn babies. To repeat, a “viable” unborn child is one capable of living outside the womb at the time of the abortion.
The hearing also revealed the indifferent job the Kansas Board of Healing Arts had done in policing the industry. The Board has apparently never looked at the KDHE reports to which only its members and the attorney general have routine access. Historically, the Board has responded only to the rare formal complaint and then hesitantly. The hesitance is not hard to understand. Among the Board’s more recent Sebelius appointees is a woman who sits on the citizen advisory board of the Planned Parenthood under investigation by Kline.
As for the KDHE, its representatives testified that they didn’t think it was their job to judge what doctors wrote on their abortion reports. They did, however, deny allegations made by Tiller and Morrison, who claimed the KDHE had approved Tiller’s habit of declining to give the reason and basis for performing abortions on viable babies.
In the way of poetic justice, the Kansas House and Senate held a later hearing on an unrelated case and so scolded the Board of Healing Arts that its executive director and lead counsel felt compelled to resign. In a rare moment of media candor, the Associated Press attributed the result in part to Kansans for Life and its years of “bird-dogging” the Board on the abortion issue.
The worm turns
Despite the resistance from Kline and Anderson, and the growing restlessness of the legislature, Paul Morrison had every reason to feel confident in the fall of 2007. He had so charmed the media that he could not have been faulted for imagining himself the next governor of Kansas.
The governor was in good spirits herself. That December Vogue sent a team of stylists and photographers to shoot Sebelius in the Capitol building. “A truly memorable experience,” she wrote in an email to supporters, “beautiful clothes right off the runway, lots of folks to fuss with hair and makeup.” The governor was particularly keen on the de la Renta.
While Sebelius was preparing for her photo shoot, Kline was bracing himself for a highly unusual, five-day grilling on his handling of the Planned Parenthood case. If the Kansas Supreme Court had scheduled this hearing for some reason other than to embarrass Kline, it was not obvious.
Although the high court had allowed the case against Planned Parenthood to continue, news of the secret hearing, once leaked, reinforced the image of Kline as a wayward zealot. When Kline asked Morrison for special counsel to represent him at the mini-trial, given the obvious conflict of interest with the AG’s office, Morrison denied him. Kline was on his own.
More trouble loomed for Kline from the media, specifically KCTV 5, the CBS affiliate in suburban Kansas City. The station took its lead from the Kansas City Star and went after the severely bloodied Kline as mindlessly as a shark. The KCTV-5 staff spent nine months tracking Kline and waited for sweeps week in late November 2007 to share its much-anticipated findings.
Except that there was nothing to share. Okay, although Kline did have a “residence” in Johnson County, where he spent several nights a week, he and his wife kept a home 40 minutes away in Topeka, the state capital, so their daughter did not have to switch high schools. Kline freely admitted as much. And that was about it. Kline had only a year left as DA, and at the time he was not planning on running again.
To get this information KCTV-5 crews stalked Kline, his family and his neighbors for months. The hidden-camera video of Kline’s wife picking up the couple’s daughter from school unnerved just about everyone who saw it. Even the dependably anti-Kline alternative newspaper, the Pitch, called the KCTV-5 presentation “creepy.” So creepy and pointless was the series, in fact, that ordinary citizens began to sense the depth of the media bias against Kline and what he represented.
As it turned out, the stalking time could have been more profitably spent on Morrison. The Topeka Capital-Journal soon revealed that the attorney general had been carrying on a two-year affair with a subordinate, who was now claiming sexual harassment. The affair had begun a month before Morrison had launched his campaign for attorney general with a photo spread of the happy Morrison family in front of the Catholic Church they attended.
That was just the half of it. The woman, Linda Carter, remained in the employ of the Johnson County District Attorney’s office after Kline had taken over Morrison’s job. Carter claimed that Morrison had used the affair to coerce her into securing sensitive information about Kline’s investigation into Planned Parenthood.
Although conceding the affair, Morrison denied the allegation of coercion, but no one much believed him about anything anymore. To stem the bleeding, Sebelius and friends leaned on Morrison to resign, and this he grudgingly agreed to do.
The following month, January 2008, the moderate establishment took another blow. Judge Anderson testified in an open Johnson County courtroom that Kline did, in fact, have probable cause to believe that Planned Parenthood had fabricated its records.
On paper Kline’s charges against Planned Parenthood may have sounded merely technical: making a false writing, failure to maintain records, failure to determine viability, but after Anderson’s testimony, these charges began to take on life.
Despite Planned Parenthood’s repeated public claims that its clinic did not perform any abortions past the 22nd week of pregnancy, this preliminary hearing suggested that they had done so in at least 23 different cases in one year. More troubling, the records Kline had subpoenaed showed that these late-term abortions had been performed without any documentation of either non-viability or maternal harm.
On January 31, 2008 Paul Morrison officially stepped down, and Stephen Six, son of former Kansas Supreme Court Justice Fred Six, was sworn in as attorney general. Sebelius had appointed the 42 year-old Democrat to a judgeship three years prior to handing him the AG’s job. No matter how much he had been told, Six could not have known how explosive a minefield he was about to enter.
State tries to silence Judge Anderson
On the morning of April 3, 2008, Kline issued a follow-up subpoena to Judge Anderson. The subpoena ordered Anderson to testify at a preliminary hearing in the Planned Parenthood criminal case and to produce certain relevant documents. These included a series of letters and other papers regarding KDHE reports that had, according to Judge Anderson, been improperly altered or manufactured.
Later that day, Judge Anderson filed with the state Supreme Court informing the court of the subpoena and of the obligation he felt to comply with it. Time stamps on the records in question show that five minutes after Anderson responded, Deputy Attorney General Michael Leitch, acting on behalf of Attorney General Six, filed a request for a “protective order” for the patient files in question.
“Now the documents appear to be on the move again, threatening this court’s jurisdiction,” wrote the deputy AG. The following day, the high court ordered Anderson “not to appear as commanded” by Kline's subpoena and not to share the relevant records with Kline. Until the court unsealed these documents a month later, Kline was unaware of these details.
This would not be the only time Kline would be denied critical evidence by the state. On April 28, District Judge Stephen Tatum told KDHE that it would not have to honor a records request from Kline in his case against Planned Parenthood.
Abortion industry fights grand juries
Kansas is one of only six states that allows its citizens to petition to form grand juries. The seeming complicity of Attorney General Morrison and other abortion industry beneficiaries with the clinics suggests why this law can be useful. In both Wichita and Johnson County, citizen groups took advantage of the law to petition for grand juries to investigate Tiller and Planned Parenthood respectively.
In both venues, the abortion industry and its allies did everything within their power to derail the grand juries. In February 2008, Kline went to court to insist that the Johnson County grand jury get the redacted records it had subpoenaed. Planned Parenthood resisted fiercely and anxiously, on privacy grounds.
The privacy claim would carry more weight if Planned Parenthood, like Tiller’s clinic, did not solicit patient data for fundraising purposes and had it not been cited in a 2002 inspection by the KDHE for being sloppy in the handling of patient files. In addition, of course, the court had assured Planned Parenthood at the very beginning of the legal process that patient privacy was not at risk.
Observers were struck by the fact that throughout the hearing District Judge Kevin Moriarty dealt with Planned Parenthood as though it were not the defendant in a deadly serious criminal matter but the aggrieved party in “a feud,” as the Topeka Capital-Journal artlessly described the contest.
Instead of ruling on the validity of the subpoena, Moriarty volunteered to create a spreadsheet—with Planned Parenthood’s help—that would somehow provide the information the grand jury requested. A frustrated grand jury, selected from a jury pool deeply poisoned by the one-sided media coverage and running out of time, ultimately declined to press charges.
In Wichita meanwhile, a grand jury, authorized by citizen petition, interviewed witnesses and subpoenaed records. True to form, Dr. Tiller’s lawyers petitioned the Supreme Court to quash the subpoenas, if not shut the grand jury down altogether. For their part the Sedgwick County grand jury judges and prosecutor turned in persuasive briefs arguing strongly for the right of grand jurors to the records they had requested.
Incredibly, Attorney General Six sided with Tiller’s attorneys against the grand jury. This was all part of a pattern for the new AG. In Johnson County, it was at his request that KDHE had joined forces with Planned Parenthood and refused to supply Kline with relevant records.
Supreme Court weighs in
In February 2008, The Kansas Supreme Court gladdened the hearts of the abortion industry and the local media when it agreed to consider Tiller’s request to quash the grand jury subpoenas. This, of course, delayed the Wichita grand jury in its attempt to review the redacted records.
The high court cited the concerns of Attorney General Six over the red herring of “patient privacy.” The Wichita Eagle naively described Six’s concern as “similar to the issues raised by lawyers for Wichita abortion provider George Tiller.”
Delay has been an essential part of the legal strategy in both Johnson County and Wichita. In Johnson County the end game pivots on January 2009, the expiration of Kline’s term. In Sedgwick County, lawyers were running out the clock on the dwindling weeks left in a 3-month extension to the original 3-month term of the Tiller grand jury (and eventually succeeded).
In May 2008, however, the Kansas Supreme Court unsealed its records—in itself a huge victory, though they never should have been sealed in the first place. And in two separate rulings offered hope that the rule of law may not be dead yet in the Sunflower State. In the first case, the court ruled that Kline, as Attorney General, had proper legal authority to keep possession of the Planned Parenthood patient files that he had subpoenaed as attorney general when he became district attorney of Johnson County.
During the transition from attorney general to district attorney, Kline was sufficiently wary of sabotage from remaining Morrison staff that he kept the patient files in a secure location outside of the office, a fact that his critics would later make much ado about.
Judge David King, who reviewed the transition at the request of the Supreme Court, consistently rejected the claims of the attorney general’s office that Kline had been reckless with the patient files (however unorthodox the chain of custody) or indiscreet with the information that they contained. King was struck, however, by the willingness of the AG’s office to come to conclusions about Kline “based on suspicion and assumption that are not supported by facts.”
In the process of acknowledging legitimacy of Kline’s custody, the Supreme Court rejected the supposed “clearance letter” from former Attorney General Paul Morrison that Planned Parenthood had been waving like a pennant for the past year.
In the second case, the court ruled that the grand jury process was constitutional. It thus declined to quash the subpoenas and granted the Sedgwick County grand jury access to abortion records in its investigation of Tiller.
The court did, however, rule that the judge could choose a lawyer and doctor to oversee the redaction of identifying information in the subpoenaed files. This ruling only encouraged stalling tactics, given the limited term of the grand jury. The ruling also suggested that abortion records must be treated differently than other medical records routinely subpoenaed in court actions.
More problematically, the court refused to allow Judge Anderson to testify in the Planned Parenthood case, a ruling that is being challenged by Kline as this article goes to press.
Bishop admonishes governor
Embarrassed by the abortion industry’s indifference to the state’s abortion laws, the Kansas House and Senate took action in its spring 2008 session. The result was the Comprehensive Abortion Reform (CARA), passed by significant majorities in both houses. Ironically but predictably, just weeks after proclaiming April “Child Abuse Prevention Month,” Governor Sebelius vetoed the CARA bill.
In her veto message, Sebelius wrote, “I am concerned that the bill is likely unconstitutional or even worse, endangers the lives of women.” Lance Kinzer, the state representative who introduced the bill, accurately dismissed Sebelius’ veto rationale as an “illegitimate, made-up excuse.”
If anything, Kinzer went easy on Sebelius. After ten years of reporting, and more than 5,000 reported late-term abortions, no doctor in the state of Kansas has claimed to have performed a late-term abortion to save a woman’s life. To repeat, that is none, ever.
Sebelius also argued that the bill would have resulted in “extensive litigation” and violated the privacy of women. In that she has been well supported by the state’s trial lawyers, the fear of litigation rings as false as the much abused privacy gambit.
Her defense of the CARA veto was one stretch of public dissembling too much for Archbishop Joseph Naumann. “Evidently, the Governor does not approve of legislators devoting energy to protecting children and women by making it possible to enforce existing Kansas laws regulating late-term abortions,” said Naumann.
“What makes the Governor’s actions and advocacy for legalized abortion, throughout her public career, even more painful for me,” added Naumann, “is that she is Catholic.”
Like many Catholic politicians, Morrison included, Sebelius had been successfully exploiting her faith to secure the votes of her co-religionists. At the end of her first campaign for Governor in October 2002, for instance, Sebelius had sent a mass mailing to dispel allegedly “false” accusations about her position on abortion.
“I am not pro-abortion. I will not, and never have, promoted abortion,” she claimed in her letter. “I feel about abortion just like you do…”
The “never” claim rang false to those who have followed Sebelius’s career. During her work on the Gary Hart campaign in 1984, for instance, she proudly hung a button above her desk that read “Women's Independence Day! January 22, 1973.” If celebrating Roe v. Wade is not promoting abortion, one was entitled to ask, what is?
In 1989, reacting to a court decision on the murder of a woman and her unborn child of eight months, state representative Sebelius publicly argued against extending victim status to the child. “There are certain inalienable rights established for a person,” she said coldly, “but those are not applied in utero.”
With her first statewide run in 1994, this time for state insurance commissioner, Sebelius took money directly from Dr. Tiller and his various organizations. Her run for governor in 2002, however, called for more discretion, especially given her professed lack of enthusiasm for abortion.
These circumstances likely account for the $100,000 mid-campaign donation by Tiller’s Women’s Health clinic to the Democratic Governor’s Association. Although this was Tiller’s only known contribution to that association, before or since, it would not have been the first time he discreetly finessed a contribution through Democrat PACS to reach its target.
“There is substantial evidence,” columnist Robert Novak recently charged, “[Sebelius] has been involved in laundering abortion industry money for distribution to Kansas Democrats.” Such is the ethical jujitsu that abortion supporters have long practiced to secure power in a deep red state like Kansas.
Kline decides to run for full term
In assuming the role of attorney general in early 2008, Stephen Six likely knew of the collaboration between the attorney general’s office under Paul Morrison and the Kansas abortion industry, but he may not have appreciated the depth of it.
If he believed what he read in the newspapers, Six would have thought Kline a single-issue fanatic from “the Taliban wing of the Kansas GOP,” one who needed to be watched and constrained. Undoubtedly, Morrison and Sebelius would have reinforced this message.
Initially, at least, Six did as expected. He tried to suppress the Wichita grand jury, to keep the KDHE reports out of Kline’s hands, and to prevent Judge Anderson from testifying in the Planned Parenthood case. When the Supreme Court unsealed its case records, however, Six had to have seen what an unholy can of worms he had inherited. Six might also have begun to wonder what his own liability would be were these particular worms ever exposed to light.
In late May, 2008, Kline made a pair of motions to the Supreme Court whose net effect would be to allow Anderson to testify. Six responded in a way that stunned almost everyone, Kline included.
After more than a year of prevarication from the attorney general’s office, much of it on his watch, Six suggested that he had no objection to Anderson keeping and using the Planned Parenthood reports. He asked only that the court “order the return of the records after all pending litigation (including prosecution) has completed”—a routine request.
“I am pleased that the Attorney General’s office has reversed course,” said Kline with nicely understated irony, “and now recognizes that redacted records in which judges have found probable cause to believe that crimes have been committed should be used in the criminal prosecution.”
Yet in June 2008, when the Kansas Supreme Court heard oral arguments about whether Kline should be allowed to continue to keep working copies of patient files from Planned Parenthood, Attorney General Six intervened in the suit on behalf of Planned Parenthood.
Planned Parenthood has to be worried. In the time between Six’s seeming acquiescence to Kline and his backing of Planned Parenthood before the Supreme Court on June 12, Kline announced that he would run for a full four-year term as District Attorney. If Kline is elected, Planned Parenthood can no longer hope to run out his clock.
There was an air of desperation in the pleadings against Kline on June 12. Deputy Attorney General Michael Leitch, representing Six, went so far as to argue that when Kline transferred the files from his office as AG to his office as DA it was as inappropriate as moving the furniture and the wall hangings. “It wasn’t a transfer, it was a taking,” Leitch told the judges.
Attorney Caleb Stegall, representing Kline, argued in turn that Kline, with the express permission of Judge Anderson, exercised his discretion as Attorney General to transfer the evidence, which transfers are covered by no law.
Stegall reminded the justices that it was they who appointed Anderson to be the custodian of the files in question. It was in this role that Anderson kept insisting the state needed the evidence given that Planned Parenthood abortion records “didn’t match up.”
Stegall questioned too why this case was being heard in the Supreme Court, when a District Court would seem the proper venue for a criminal defendant like Planned Parenthood to raise questions about the chain of custody.
More troubling, the Kansas Supreme Court is among the very few state courts whose members are appointed by the governor without any confirmation process. For the last fourteen years at least, governors politically and philosophically opposed to Kline have made those appointments.
Among many other outside observers, Judge Andrew J. Napolitano, Fox News Senior Judicial Analyst, has criticized the high court for its apparent intervention on the behalf of the abortion industry.
Whether Planned Parenthood or Dr. Tiller will ever be brought to justice, or will even have a genuine day in court, remains to be seen. The Supreme Court has not yet ruled on the case. What is clear, however, is that the battle for the soul of the state has been joined, and the outcome may soon be decided.
Much will hinge on Kline’s bid to be elected District Attorney. He faces a strong primary opponent, backed by the moderate Republican establishment, and, if he prevails, a well-funded Democrat in the general.
The other possible avenue to justice has just proved to be a dead-end. On July 2, 2008, The Sedgwick County (Wichita) grand jury investigating Tiller reported that it had “not found sufficient evidence to bring an indictment on any crime related to the abortion laws.”
The grand jury’s reasoning is instructive. Its final statement noted that the Kansas legislature had made an “earnest attempt” to limit late-term abortions to “the gravest of circumstances.” The statement continued that the jury’s review of medical records “revealed a number of questionable late-term abortions with regard to the diagnosis of ‘substantial and irreversible impairment.’”
This grand jury, however, never really had a chance to bring Tiller to justice. A Sedgwick County judge denied the petition’s requirement that an independent prosecutor be brought in to guide the grand jury. Instead, the jury’s fate was left in the hands of District Attorney Nola Foulston, who appointed her assistant, Ann Swegle, as prosecutor.
The reader may remember Foulston as the Democratic DA and Tiller ally who had found a friendly judge to dismiss — on jurisdictional grounds — the original charges Kline had pressed against Tiller.
Foulston could not allow a replay of that scenario; how would she escape prosecuting Tiller had the jury indicted him in her own courtroom?
The jury’s closing statement reveals how they were misinformed. “The Court has further indicated that if a review of the relevant circumstances surrounding a woman’s pregnancy and subsequent abortion revealed no more than a reasonable medical debate over the condition of the patient and the threats posed to her by continuing her pregnancy to term, no crime has been committed by the performance of the abortion.”
Those words did come from the Supreme Court’s 2006 Alpha decision—but not in the way just quoted. Rather, they were part of the Court’s instruction on redacting appropriate records. Judge Anderson notified the Court that the records were evidence in light of a straightforward reading of the law, and “document more than the existence of a reasonable medical debate” about criminal abortion statutes. Echoing Anderson, Wichita Judge Eric Yost also examined the same Tiller records and found “probable cause.”
34 of these very records were given to the jury from A.G. Six’s office at the close of June... records that two judges said were evidence of crimes that Foulston had stopped Kline from prosecuting, and had refused to prosecute, personally.
So it is no surprise, that behind closed doors, the jury “learned” why they also should not indict and, like Foulston and Morrison, instead blame the law as deficient...which is why an independent prosecutor was asked for in the first place.
The jury passed the hot potato with their closing words: “until the State Legislature is willing to amend the present statutes and provide clearer and more definitive guidelines regarding ‘substantial and irreversible impairment,’ ...we doubt that any investigation into the practices and procedures of Dr. Tiller and the Women’s Health Care Services will yield an outcome that will provide any basis for indictment.”
Though grand jury organizers don’t agree with that analysis, they aren’t yet sure what the next move should be.
Back in Johnson County, Democrat candidate for D.A., Rick Guinn, has made his allegiances clear. “No matter who my opponent is this fall, my top priority will be to refocus this office on law enforcement issues and not political issues.”
AG Six has said as much, anticipating his bid for re-election in 2010. In Kansas this is code for “the abortion industry once again gets a pass.” Now, only Kline’s election as District Attorney can prevent that “pass” from becoming permanent.