Kansas Grand Jury Had Doubts About Abortions Even if Tiller Got Off the Hook

State   |   Steven Ertelt   |   Jul 9, 2008   |   9:00AM   |   WASHINGTON, DC

Kansas Grand Jury Had Doubts About Abortions Even if Tiller Got Off the Hook

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by Kathy Ostrowski
July 9
, 2008

LifeNews.com Note: Kathy Ostrowski is the legislative director for Kansans for Life, a statewide pro-life group that has helped lead the fight against late-term abortion practitioner George Tiller. Tiller recently escaped prosecution from the grand jury for abortions that appear to have been illegal.

The Wichita grand jury closed July 2nd and did not indict George Tiller, but seemed definitely unsettled with what he is doing. Their closing statement hedged and said that, because of the way they understood the Kansas Supreme Court to have interpreted the law, they were unable to charge Tiller even though he performed abortions that were clearly questionable.

The jury wrote:

"[we reviewed] a number of questionable late-term abortions with regard to the diagnosis of ‘substantial and irreversible impairment.’ As the current law is written and interpreted by the Kansas Supreme Court, late-term abortions will continue for many circumstances that would seem, as a matter of common interpretation, not to meet the definition of ‘substantial and irreversible impairment of a major bodily function.’"

However, the grand jury’s understanding of the Kansas Supreme Court’s interpretation is simply incorrect. Their statement has taken language from the Court’s 2006 Alpha ruling out of context, and uses it in the following excerpt to undermine the state abortion ban:

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.

Sinister legal interpretation

Certainly many legal cases involve conflicting testimony by medical experts, but the mere existence of conflicting medical opinions does not prevent resolution of legal disputes– much less the filing of charges!

The fact that the Grand Jury acted under such a blatant misunderstanding of this point casts serious doubt on the nature of the legal advice the grand jury was receiving. Whether it was Tiller’s team (unrebutted by Sedgwick D.A.Foulston’s office)–or her office, itself– some legal mind(s) wrongly tutored the members of the jury that the Courts’ use of the phrase "no more than a reasonable medical debate" in the Alpha case related to the enforceability of K.S.A. 65-6703.

In fact even a cursory reading of the opinion shows that this was not at all the case. The phrase in question related only to what portions of medical records were required to be redacted (edited for personally-identifying information).

In the February 2006 Alpha decision, the Court showed its hyper-sensitivity about patient privacy interests and its distrust of then-Attorney General Phill Kline’s reading of the abortion ban. In Alpha, the Court allowed Judge Anderson to release abortion clinic records to Kline only if they had been unambiguously selected the way a "pro-choice" prosecutor would, i.e. "firm legal ground." But they used the phrase "no more than a reasonable medical debate," in the context of the selection and redaction of evidence being done by attorneys and physicians. It did NOT herald an "interpretation" that illegal late-term abortions could not be investigated.

Judge Anderson filed a response in November 2006, when releasing the multiply-redacted records. He told the Court in writing that the records were evidence, in light of a straightforward reading of the law, that "document more than the existence of a reasonable medical debate" about criminal abortion statutes. Weeks after that filing, Wichita Judge Yost’s professional review also echoed that the records were "probable cause" evidence of criminality.

Yet SOMEONE misinformed the jury otherwise, and the jury acted, based on this understanding. And Tiller’s defense certainly relies on this "spin" that data about late-term abortion is hopelessly mired in medical jargon and prevents non-physician citizens from passing judgment on the reasons they were allowed. Tiller’s attorney congratulated the jury’s refusal to indict, saying, "To a lay person, it could be indigestion, but to a trained medical professional it could be a heart attack." In other words, whatever diagnoses two doctors agree upon can never be questioned, even by the Attorney General charged with investigating such activities!

KFL railed against this bogus nullification of the abortion ban when former A.G. Paul Morrison promoted this very same interpretation in July 2007. But apparently, this was always the end game for Sedgwick D.A. Foulston, whose office had authority over the jury and whose assistant, Ann Swegle, was supposed to provide accurate legal guidance to the empanelled citizens. And it was accomplished at the outset when the grand jury was denied the independent prosecutor demanded by the citizen petition.

What the jury was deterred from accomplishing

It was probably too much to hope that a grand jury under Foulston’s watch would be allowed to produce indictments against Tiller, because it would return her to the high-profile situation of December 2006, when Kline tried to file criminal charges against Tiller. At that time, she successfully fought off Kline’s jurisdictional authority and dropped the charges, but her action reinforced charges Tiller "owns" Kansas. (Morrison’s January 2007 interference with an appeal of that case, and the governor’s April 2007 party for Tiller’s entire staff, strengthen that perception.)

For ten years, the Kansas abortion ban has been disobeyed. The law that says a medical deter- mination for a viable baby abortion, having been corroborated by an independent physician, must be reported to the state with the underlying reason and basis. But ten years of state reporting is missing the diagnosis and basis for over 2,800 viable baby abortions. The state has accepted "non-answers" that restate statutory language but plainly dodge the questions on the state reporting form.

There were 34 Tiller files from 2003 sent by the current AG’s office for the jury to review, files that two judges found to contain evidence of probable, not possible crimes! But the jury statement curiously reads:

"this Grand Jury has not found sufficient evidence to bring an indictment on any crime related to the abortion laws."

Questions remain: Who misinformed the jury that they were incapable of reading the annually published abortion data to determine whether abortionists give honest answers on state reports? Did someone, including Swegle, dissuade the jury from indicting for the Neuhaus situation, by assuring them the A.G. will ‘take care of it"? And were Tiller’s records from 2004-2008 (sent just weeks ago to the jury) cherry-picked to underplay his reliance on Neuhaus?

This jury should have indicted Tiller for failure to report reasons for viable baby abortions performed from 2003 -2007 and for repeatedly using the same financially dependent doctor (Kristin Neuhaus) to "rubber stamp" a substantial and irreversible condition.

None of the indictments the jury failed to bring would be non-prosecutable due to medical complexity or subjectivity. The lawmakers who wrote the ban were aware of medical/legal intricacies. They required fetal age and viability assessments to use objective criteria but allowed medical "elbow room" for the maternal medical diagnoses. No limits were given as long as each diagnosis was named and reported.

The problem is that Tiller hasn’t the integrity to list the diagnoses on the state form. That is not a deficiency the legislature needs to correct, it is criminal conduct that state prosecutors and the Governor’s health department refuse to correct.

Now these prosecutors, and their Governor, have a new scapegoat– a deficiently drafted law– as the grand jury closing statement reads:

"until the State Legislature is willing to amend the present statutes and provide clearer and more definitive guidelines regarding ‘substantial and irreversible impairment,’ or impose new or additional statutory limitations on the ability of a woman to obtain an abortion of a viable fetus, 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."


After nearly 7,000 citizens signed a petition written and distributed by Kansans For Life, the grand jury was empaneled, but suffered a delay of nine weeks while the Supreme Court considered, and rejected, Tiller’s motion to disband the jury. The jury commenced Jan.8.

The jury was denied, from Feb.2- May 6 (half its term), access to its primary evidence–abortion records–while the Court again considered, and rejected, motions to disband the jury by Tiller and the Center for Reproductive Rights.

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