A Death in Wichita (10 page)

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 launch 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.

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.

Dr. Carhart began Christin’s operation with the standard procedure of injecting the fetus with digoxin. He induced labor after the heart had stopped and sent the young woman back to her motel room at La Quinta Inn, also standard procedure. The following morning, she was riding to the clinic in her family’s van when she expelled the dead fetus. At WHCS, doctors discovered a tear in Christin’s uterus, which was sutured, and she was diagnosed with dehydration, given intravenous fluids, and driven back to the motel. That evening, she began vomiting, cramping, and passing out. After midnight, her family phoned Tiller’s employee Cathy Reavis, who was on call at the motel. Reavis put Christin in a warm bath and then to bed. In the morning, she fainted and her family couldn’t revive her. They rushed her to WHCS about 8:00 a.m., where her heartbeat stopped.

At 8:48, the clinic called 911 and emergency responders arrived nine minutes later. Entering WHCS, the paramedics saw Dr. Carhart lying on top of Christin, trying to force liquids from her stomach. A responder ordered Carhart to step away from the patient and the ambulance crew spent the next quarter hour trying to revive her. At 9:14, she was transported to Wesley Medical Center’s Emergency Room (throughout this crisis, anti-abortion protesters were at WHCS snapping pictures of the action and of Tiller’s arrival at Wesley). The ER team worked to save Christin but could not, and she died from systemic organ failure.

Neither Christin’s family nor WHCS wanted to call attention to the tragedy, so it didn’t immediately become public. Operation Rescue wasn’t certain what had taken place after Christin had been transported to the ER, and several days after her death, Troy Newman was at Wesley looking for answers when someone in law enforcement told him that the young woman had not survived.

Anti-abortionists immediately blamed her death on WHCS and on the procedure the clinic had used to induce Christin’s abortion. Within days, Newman and his Operation Rescue colleagues were at the Topeka office of Governor Kathleen Sebelius, speaking with Vicki Buening, the state’s director of constituent services. After Newman had shared his views, Buening gave him the standard answer that if patients were unsatisfied with their care at WHCS, they could file a complaint with the Kansas State Board of Healing Arts (KSBHA). As those in Operation Rescue were well aware, Vicki Buening was the wife of Larry Buening, executive director of the KSBHA. Several years earlier, he’d recommended to Tiller that Kristin Neuhaus become his second consulting physician on abortions.

Operation Rescue’s senior policy adviser, Cheryl Sullenger, a veteran abortion protester, was present. In 1988, she’d pled guilty to conspiring to bomb an abortion clinic in California, serving nearly two years in prison. She now pointed out to Vicki Buening that a patient could file a complaint only if she were alive.

“Certainly, that is true,” Buening said.

“If they are dead,” Sullenger said, “they can’t file a complaint, can they?”

“I don’t have an answer to that question.”

On January 25, Operation Rescue issued a press release stating that Christin had died from her abortion. Sullenger filed a complaint against Tiller with the KSBHA and received a letter from Shelly Wakeman, KSBHA’s disciplinary counsel, advising her that an investigation had been opened.

The people most affected by Christin’s death, her grieving family, were nowhere to be found in this legal and political battle. They didn’t publicly blame anyone for the loss of their daughter and sister.

When Christin died, a bill had just been introduced in the Kansas House of Representatives, HB 2503, designed to place more regulations on doctors performing abortions. It was strongly opposed by Governor Sebelius and by Tiller’s political action committee, ProKanDo, which had conducted fund-raising on the governor’s behalf. As Phill Kline had campaigned for the attorney general’s job in 2002 as an archconservative Republican, Sebelius had won the governor’s office as a liberal Democrat. From Cincinnati and raised a Roman Catholic, she was the daughter of the former Ohio governor John Gilligan and became part of the first father-daughter governor duo in U.S. history. Sebelius was strongly pro-choice, yet her office claimed that abortions had declined 8.5 percent during her tenure as governor, and the numbers backed her up. According to the Kansas Department of Health and Environment statistics, induced abortions in the state fell by 1,568, or 12.6 percent, from 2001 to 2007. Her administration attributed this to health care programs Sebelius had initiated, including “adoption incentives, extended health services for pregnant women…sex education and…a variety of support services for families.” As governor, she’d vetoed anti-abortion legislation in 2003 and 2005, and would repeat this pattern in 2006 and 2008.

On February 2, 2005, Sebelius sent a letter to Larry Buening asking him to look into Christin’s death. Six weeks later, Operation Rescue held a press conference at the capitol rotunda in Topeka, where a former Tiller patient spoke about her inability to bear children since having her abortion and Cheryl Sullenger talked about the demise of Christin Gilbert. On March 25, Buening sent a letter to Governor Sebelius indicating that Christin had received care that “met the standard of accepted medical practices…” Later that day, the Kansas Senate passed HB 2503 by a two-thirds majority, but Sebelius vetoed the measure and an attempt to override her veto failed.

Seven months passed before Christin’s autopsy report was released, concluding that she’d “died as a result of complications of a therapeutic abortion.” The day before Thanksgiving 2005, the KSBHA issued its final report on the case, absolving Tiller and his staff of any wrongdoing, but his opponents were hardly satisfied. They’d been studying an 1887 Kansas law that allowed citizens to impanel grand juries and issue criminal indictments. Operation Rescue and Kansans for Life launched such a petition in Wichita and Sedgwick County, calling for a grand jury to investigate Tiller’s role in the death. They collected signatures—7,700 in all—and on April 19, 2006, the petitions were certified, and a month later the grand jury went to work. That July, Nola Foulston, the Sedgwick County DA, announced that the grand jury had been dismissed without issuing an indictment. It wasn’t the last time she’d take action to prevent Dr. Tiller from being prosecuted.

The DA’s dismissal further angered Operation Rescue. Grand jury proceedings were supposed to be secret, but Troy Newman claimed to have had an anonymous source inside this one. The jurors, according to the source, were given the runaround by KSBHA witnesses and told that what had happened at WHCS was “standard protocol.”

Cheryl Sullenger claimed that the board’s behavior was putting “all Kansans” at risk.

In April 2006, at the height of the conflict over Christin Gilbert’s death, a protester kneeled down in the gutter running alongside Tiller’s clinic and began to pray. As a WHCS nurse steered her car into the driveway, the demonstrator refused to move. She honked her horn for so long that a clinic guard intervened and told the praying man that he’d be reported to the police. The following morning, Mark Gietzen was in the same gutter when Tiller drove up in his armored SUV. In a report Gietzen filed with the authorities, he said, “Tiller floored the accelerator, and aimed his Jeep directly at us!”

Gietzen claimed that the car hit and bruised him, so he demanded a $4,000 settlement from the physician. When that failed, he asked Nola Foulston to charge the doctor with attempted murder, which also went nowhere. Gietzen kept protesting by kneeling in the gutter, and when Tiller passed by him in his car, he held up an editorial cartoon depicting Gietzen as a madman. The fringes and the mainstream had joined forces over abortion.

Phill Kline, Bill O’Reilly, Operation Rescue, and Kansans for Life had all clearly identified their target, as Scott Roeder continued to drift.