Kansas pro-life and pro-abortion activists held their collective breath in January when a grand jury was seated to investigate George Tiller, who infamously specializes in ultra-late-term abortions. They kept holding their breath when a Wichita grand jury requested 2,000 of Tiller's patient records. And they held it some more when District Judge Paul Buchanan on Feb. 1 amended the request to 250 records chosen at random-50 for each of the past five years.
A relative handful of Tiller records already obtained by former Kansas Attorney General Phill Kline in 2006, as well as Tiller's own public remarks, suggested the abortionist has violated Kansas' law against post-viability abortions thousands of times. Would these new records prove it?
Kansans-and the world-may never know: On Feb. 5, the Kansas Supreme Court, siding with Tiller's attorneys' patient-privacy arguments, agreed that the abortionist did not have to produce the records. Then on March 3, the court ordered the grand jury not to ask for any more records pending oral arguments in another case against Tiller, this one involving 19 charges brought by Kline's successor, former Kansas Attorney General Paul Morrison.
"Tiller's lawyers are using the Kansas Supreme Court to delay the grand jury, hoping the clock will tick out, and they'll never have to answer to these allegations," said Cheryl Sullenger of Operation Rescue, one of the groups that launched a petition drive that eventually resulted in the "citizen-called" grand jury.
The 19 charges, to be argued on April 8, surround Tiller's relationship with a doctor named Kristin Neuhaus. Records show that Tiller paid Neuhaus to rubber-stamp his diagnoses that the post-viability abortions he performed were medically necessary.
Morrison himself called the charges "hyper-technical." In reality, they go to the heart of the entire firestorm that has now enveloped Tiller for more than two years-and to what Kline has been arguing for more than a decade: that George Tiller falsifies abortion records in order to continue enriching himself on high-priced, illegal late-term abortions-and that liberal judges and Justice Department officials, in defiance of Kansas lawmakers, are letting him get away with it.
In 1994, Kansas banned post-viability abortions except to save the mother's life or when necessary to prevent "severe and irreversible damage to a major bodily function." The legislature also banned partial-birth abortion, but that law contained a mental-health exception. While the two laws seemed to conflict, Kline said, "a rational interpretation . . . meant that the post-viability ban should trump the partial-birth abortion ban," since it was more restrictive.
When the two laws passed, Tiller "suddenly overnight, claimed he only did partial-birth abortions," Kline said. "He was using the mental-health loophole in the partial-birth abortion ban to continue performing post-viability abortions."
Pro-life activists and legislators challenged Tiller's claim, and the debate became whether "severe and irreversible damage to a major bodily function" encompassed mental health. In 2000, then-Attorney General Carla Stovall, a Republican, issued an opinion: It did.
With that victory, Tiller again changed tactics, a fact revealed in Kansas Department of Health and Environment (KDHE) records Kline subpoenaed after he became attorney general in 2003. Under the state's post-viability ban, abortionists were, and are, required to report the "determination"-or the fact that a late-term abortion is necessary-as well as the "basis," or the underlying medical diagnosis for that determination.
Kline found that every Tiller late-term record was identical. The determination: "Woman would suffer permanent and irreversible impairment of a major bodily function." The basis: "Woman would suffer permanent and irreversible impairment of a major bodily function."
"That's like telling a patient, 'You're going to die,' based on the fact that 'you're going to die,'" Kline said.
Now, with the court-ordered blackout on Tiller's current patient records, the abortionist may escape further grand jury scrutiny unless Judge Buchanan extends that body's mission for another 90 days.
"It's an endless cat-and-mouse game that Tiller's attorneys are playing," Sullenger said. "Delays work for the abortionist, not for justice."