A Death in Wichita

by Stephen Singular

  “When I first met Dr. Tiller,” says Julie Burkhart, who helped establish his political action committee in 2002, “I was intimidated by him. He said, ‘I need to know that you’ll do whatever it takes to raise money or whatever else we need done here. This might mean taking out the trash one night, if that’s what necessary.’ He wanted to know right then that I was totally committed to this work. It wasn’t easy for him to trust people. I’m sure that came from being bombed and shot at and having his name dragged through the mud for so long. But as the years moved on, and he saw that I was committed, he had a level of affection and trust in me that really bubbled to the surface.

  “He never liked talking about all the things going on right outside the clinic because that was a real energy sucker and took time away from the medical work going on inside the walls of his office. He believed there was a solution to every problem and our job was just to focus on that and make health care better for women.”

  Out in Boulder, Dr. Warren Hern wasn’t so optimistic, or reticent, when it came to the protesters who also camped out at his clinic and distributed flyers around town about him. One began, “A baby killer lives in your neighborhood…”

  In March 2001, the United States Court of Appeals for the Ninth Circuit in California overturned a judgment against abortion opponents who’d targeted several doctors, including Hern, for assassination. Two years earlier, following the 1998 murder of Dr. Barnett Slepian, Hern and three other physicians had decided to take action before another doctor was killed. They sued those making the threats under a federal racketeering law and another law against inciting violence against abortion providers. For a month, the four doctors sat in a Portland courtroom next to their potential assassins. The physicians took the stand and described to the jurors how they’d been stalked and placed on the defendants’ “Wanted” posters and hit lists, which were then posted on the Internet. It was an opportunity for Hern to talk about the lethal process of “target identification”—a doctor’s face showed up on a poster, over and over again, and then he got killed. This process was continuing, Hern argued, and had to be stopped. After listening to the testimony, the federal jury decided for the doctors, but the judgment was later overturned on appeal.

  Commenting in The New York Times following the second court ruling, Dr. Hern called the appellate decision “crushing.” He’d recently been sitting by a window in his office, speaking with a reporter, when he noticed that the Venetian blinds were slightly open. Without interrupting their discussion, he reached over and closed the blinds, as he always did at work or home now when near an open window.

  “Whoever shot Dr. Slepian,” Dr. Hern wrote, “accomplished his purpose—to strike terror into my heart. It was an act of political terrorism, as have been the assassinations and attempted assassinations of 10 other abortions doctors…”

  Hern described the view from his home of the renowned Flatirons Mountains rising above Boulder, but he no longer had the luxury of looking out at the reddish, vertical slabs of rock:

  “My name, along with those of other doctors, is on an Internet abortion hate list—called the ‘Nuremberg Files’—now found to be acceptable free speech by the appellate court’s decision. Dr. Slepian’s name has had a line drawn through it. Who’s next?”

  XV

  In addition to the ongoing death threats, the efforts to close Tiller’s clinic were moving into mainstream politics. Since Roe v. Wade, Kansas had placed only minor restrictions on late-term abortion, but that was changing. Tiller’s Web site claimed that he’d done more of these operations “than anyone else currently practicing in the Western Hemisphere.” In 1998, the Kansas legislature began requiring that abortion doctors submit medical information to the state’s Department of Health and Environmental Statistics. Between 1998 and 2008, Tiller would perform about 4,800 late-term abortions, at least twenty-two weeks into gestation. Roughly 2,000 of these involved fetuses unable to survive outside the womb, because of genetic defects or fatal illnesses, but the other 2,800 abortions involved viable fetuses, although some had severe abnormalities.

  In 1998, the Kansas legislature outlawed abortions on viable fetuses after the twenty-second week of pregnancy, except under certain conditions: “(a) No person shall perform or induce an abortion when the fetus is viable unless such person is a physician and has a documented referral from another physician not legally or financially affiliated with the physician performing or inducing the abortion and both physicians determine that: (1) The abortion is necessary to preserve the life of the pregnant woman; or (2) a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.”

  In the original spirit of Roe v. Wade, the new law allowed the primary doctor leeway in making his own decisions about particular cases “according to his best professional judgment.” Still, this was a victory for anti-abortion forces.

  To comply with the statute, Tiller engaged the attorney Rachel Pirner, who’d helped him with his adoption cases. She contacted the Kansas State Board of Healing Arts (KSBHA), which holds the power to license or unlicense doctors, and asked the executive director, Larry Buening, for a clarification. Did the phrase “a documented referral from another physician not legally or financially affiliated with the physician performing or inducing the abortion” mean a Kansas physician? Or could it be someone from out of state? The questions were critical. Getting any Kansas doctor involved with abortion after the death threats Tiller had received over the years, not to mention the bombing of his clinic and the gunfire he’d taken in both arms, was a huge challenge.

  On April 27, 1999, the KSBHA issued a subpoena for ninety days’ worth of Tiller’s patient records to see if he was in compliance with the new statute. If not, he could lose his medical license. As Pirner considered a federal lawsuit to stop enforcement of this law, she asked the KSBHA to stay or postpone its decision. According to Tiller’s handwritten notes from June 21, 1999, Larry Buening called Tiller that day and literally told him not to make a federal case out of the matter. He could use a Kansas doctor named Kristin Neuhaus as his referring physician. She ran a small abortion clinic in Lawrence and could drive to Wichita once a week to consult with his patients. As long as Tiller and Neuhaus did not have a financial arrangement, this would satisfy the interpretation of the new law. Their conversation, Buening pointedly told Tiller, was strictly off the record. If asked about it in the future, Buening would deny ever having had it. Neuhaus became Tiller’s second physician and his legal battles appeared to be over. Then Phill Kline arrived.

  Kline grew up in Shawnee, a suburb of Kansas City, Kansas, and when he was five his father abandoned the family, leaving the boy to be raised by a single mother. At Kansas University, Kline headed the college Republicans and became a broadcaster for the Kansas City radio station WHB, honing his language skills before going on to KU law school. Even his strongest adversaries admitted that he was a polished and powerful orator. After entering private practice in Kansas City as a corporate lawyer, he moved back into radio, hosting the The Phill and Mary Show and Face Off with Phill Kline. He and his wife, Deborah, were members of the Central Church of the Nazarene and he served as finance director of the Johnson County (Kansas) Republican Committee. A fierce believer in lowering or eliminating taxes, he was even more fiercely against abortion. In 1992, he was elected to the Kansas House of Representatives and he then ran for the U.S. House of Representatives, but lost.

  In 2002, when he campaigned to become attorney general of Kansas, stopping abortion was one of his major campaign themes, which meant stopping George Tiller. This time Kline won, and he began hiring those who felt as he did. One employee was Bryan Brown, arrested multiple times for protesting in Wichita during the Summer of Mercy. In picking him to head the AG’s consumer affairs division, Kline compared Brown to Martin Luther King. Another hire was Steve Maxwell, as assistant prosecutor. After entering office in January 2003, Kline and Maxwell decided to lau
nch what would become a very lengthy and expensive investigation into late-term abortions at Comprehensive Planned Parenthood of Kansas and Mid-Missouri (CHPP) and at WHCS, but they needed a plausible reason for doing so. Kline judged that underage sex abuse was underreported in Kansas. If in the process of looking into this, his staff discovered that abortion providers were violating a law or technicality by not reporting sexually abused girls who were getting abortions, he could build a case against the doctors.

  In Kansas, the official term for this type of inquiry is an “Inquisition,” and Kline’s office soon developed an “Overall Plan.”

  One problem quickly arose. According to an internal AG memo, “There potentially exists a legal obstacle to building a Judicial Inquisition due to the absence of a definitive complainant or allegation that a medical provider unknowingly failed to report a specific incident of sexual abuse.”

  In other words, no one had intentionally done anything wrong. But that, according to the attorney general, the head legal official in Kansas, was not a problem that couldn’t be surmounted. The AG’s office would approach the Kansas Department of Social and Rehabilitation Services (SRS) for statistics on the sexual abuse reports for girls under sixteen—but not inform SRS about what they were really after.

  “If asked to explain the nature of the inquiry,” the memo read, “SRS will be told that the Attorney General desires to determine if there is a serious latent sexual abuse problem in Kansas.”

  After speaking with SRS’s Betsy Thompson, Kline’s chief investigator, Tom Williams, reported back to his boss that “we have initiated step one of the overall plan.”

  “I advised her that I was attempting to assess the sexual abuse problem in Kansas…” Williams wrote to Kline in an e-mail. “I stayed away from the underlying issue we are interested in…I kept the conversation in very general terms…There was nothing said to suggest that SRS will resist providing the requested information.”

  Williams then gave Kline a warning: if they sought only the SRS records of girls nine through fifteen this might “alert them to the focus of the inquiry and may result in legal action to resist disclosure. I recommend that we continue as planned and ask to review all the reports.”

  In time, the Kansas Board of Discipline of Attorneys would file an ethics complaint against Assistant Prosecutor Steve Maxwell and Chief Deputy Attorney General Eric Rucker for their roles in Kline’s Overall Plan (and then go on to file seven ethics complaints against Kline himself). The board accused Maxwell of using his personal views on abortion to mold the investigation for the AG and to deceive a judge. According to the complaint, Maxwell told Judge Richard Anderson of Shawnee County District Court that the clinics weren’t reporting instances of child abuse and backed this up with child abuse statistics that he knew were “obviously flawed.” Yet the Inquisition continued.

  The AG sought search warrants for both clinics in order to gain access to private medical records, but all of this was taking a considerable amount of time. By August 2004, he’d developed an “Operations Plan” for executing the warrants, which sounded like the agenda of Operation Rescue. Kline’s investigators were to obtain “complete identities including addresses and telephone numbers of all physicians, nurses, medical personnel and administrative employees who work at the clinics.” They were to record “the license numbers and vehicle descriptions of all vehicles parked in and around the clinics.”

  In order to get all this data, according to Tiller’s lawyers, Kline’s office was to use its Operation Rescue contacts, who had been gathering such information for years. When executing these search warrants, multiple state and local agents would, in SWAT-team fashion, “assume a discreet proximity” to the clinics. All the officers would “be armed,” but with their sidearms concealed. They’d execute the warrants with “handcuffs, flashlights and OC [pepper] spray immediately available upon their person.”

  The plan stalled out because the Kansas courts would not allow it—ruling that the state’s attorney general would be overstepping his boundaries. Kline came up with another plan, going after the patient files of sixty women and girls who’d had late-term abortions at WHCS and thirty similar files at CHPP. Judge Richard Anderson issued subpoenas for the files and the AG obtained other subpoenas for Wichita’s La Quinta Inn, near Tiller’s clinic, where many out-of-town women stayed when they came in for evaluation at WHCS or an abortion. Operation Rescue and other anti-abortion groups did surveillance on every part of Tiller’s life and business; protesters had long demonstrated at La Quinta against WHCS patients at the motel and slipped anti-abortion literature under the doors of their rooms. La Quinta was now ordered to provide Kline’s investigators with all registration records for those who’d checked into the motel and received a “medical discount for lodging.” With his Inquisition under way, Kline began urging attorneys general in Texas, Indiana, Florida, and Michigan to go after abortion records in their own states. Even though Kline had gained access to these highly sensitive files, the Kansas Supreme Court had lain down very tight rules for handling the materials, to protect the women’s privacy.

  David Farnsworth, a retired college professor who lived in Wichita, was on a panel that made recommendations to Governor Kathleen Sebelius for new candidates to the state’s Supreme Court. Seven justices sat on the court, and whenever a seat came open, the panel sent names to the governor for consideration.

  “In all of the work we did screening candidates,” says Farnsworth, “we never asked a single question about a lawyer or judge’s position on abortion. Dr. Tiller’s name never came up in any of our discussions. The reason for this was simple. Abortion was a matter of settled law in both the U.S. Supreme Court and the Kansas Supreme Court and this was just not an issue.”

  For Phill Kline, it was the most important issue in America, and he was about to test the Kansas High Court in ways it had never been tested before.

  XVI

  As he rose in prominence in the anti-abortion movement, Kline joined forces with Bill O’Reilly and Fox News (the TV talk show host also had a national radio show). In 2005, with Kline’s Inquisition under way in Kansas, O’Reilly began referring on the air to “Tiller the baby killer,” a mantra that had started years before in Wichita and gradually spread across the country. O’Reilly had found another ally in Mark Gietzen, who ran the Wichita-based anti-abortion group Kansans for Life. Like Scott Roeder, who’d made it his mission to save unborn children, Gietzen had issues with rearing his own young child. In July 2003, the head of Kansans for Life was divorced from his wife, Donna, and according to Sedgwick County court documents he was alleged to “have struck or slapped the parties’ minor son on or about the face causing visible injuries.” Donna now asked for full custody of the nine-year-old boy, and if Gietzen showed up at her home without approval, she had to call 911 and the child would be placed under police protection. In November of that year, the couples’ custody arrangement before the July incident was reinstated.

  Gietzen, who’d begun feeding tips to O’Reilly’s staff about Dr. Tiller, claimed to have six hundred volunteers scattered around the Midwest. As soon as he gave the word, they’d drive hundreds of miles to protest at WHCS, or look for dirt on Tiller, or try to persuade pregnant women entering the clinic not to get abortions. Between 2004 and 2009, Gietzen told The New York Times, his volunteers had made 395 “saves” on the sidewalks outside WHCS, which amounted to about 4 percent of those going into the clinic.

  While Gietzen and Kline hooked up with Fox, O’Reilly ratcheted up his attacks on Tiller. One program began, “In the state of Kansas, there is a doctor, George Tiller, who will execute babies for five thousand dollars if the mother is depressed.”

  The physician had “blood on his hands.”

  “Tiller destroys fetuses for just about any reason…”

  Then O’Reilly started reaching for historical comparisons: “He’s guilty of Nazi stuff.

  “This is the kind of stuff that happened in Mao’s China,
Hitler’s Germany, Stalin’s Soviet Union.”

  During a radio program in 2006, he said, “If I could get my hands on Tiller…Can’t be vigilantes. Can’t do that. It’s just a figure of speech.”

  On television, O’Reilly and his guest hosts brought up the doctor on at least twenty-nine episodes between 2005 and 2009, again and again repeating the phrase “Tiller the Baby Killer.”

  As he sat in New York and broadcast a drumbeat of heated sound bites, something happened inside the walls at WHCS that revealed the actual risks, the heartbreaking realities, the medical challenges, and the human complexities surrounding abortion. Operation Rescue would seize on it as another opportunity to close the clinic.

  Christin Gilbert was born in 1985 and spent most of her life in Keller, Texas. She had Down syndrome, but was active in the Special Olympics and won a gold medal in the softball throw in 2003. The following year, Christin was raped by an unknown male and became pregnant. A grand jury was convened in Tarrant County, but no one was ever charged with the crime. On January 10, 2005, Christin was twenty-eight weeks pregnant when her family, after much debate and anguish, finally decided to bring her to Wichita for a third-trimester abortion. At the clinic, she was evaluated by Dr. Kristin Neuhaus, who gave her approval for the operation as the required second physician on the case. Dr. LeRoy Carhart, the retired Air Force surgeon who traveled to WHCS every third week to assist Dr. Tiller, would perform the abortion. As a medical student in the years before Roe v. Wade, Carhart had seen women whose botched abortions had led to untreatable pelvic infections, protruding intestines, perforated uteruses, and many deaths. In 1987, a nurse had asked him to spend a day at a clinic where she worked; he left the facility committed to receiving abortion training, which he did in Philadelphia. Then he returned to Omaha and eventually made abortion care a full-time practice.