Ask the Attorney: An Interview with Former Kansas Attorney General and Johnson County District Attorney Phill Kline

The unfortunate shooting death of abortionist George Tiller this past May has once again focused attention on Kansas as the late-term abortion capital of the nation. Gone unmentioned by the media, however, was the fact that for six years Kansas had a pro-life prosecutor who put his career on the line in an unflagging effort to put an end to Tiller’s late-term abortion practice through legal means. Regrettably, as Phill Kline discovered, the Kansas political machine was just as determined to keep abortion “safe” from his criminal enforcement efforts. Although Kline was ultimately thwarted in his efforts to enforce Kansas abortion laws, LLDF commends him as representing the highest and best one could hope to find in a public servant. Before getting to his comments, it is worth recapping the story of Phill Kline’s dogged fight to hold the abortion industry accountable to the citizens of Kansas.

On paper, Kansas has a very restrictive law against third-trimester abortions—a law Kline helped draft during his eight years in the Kansas Legislature. The law prohibits abortions on viable unborn babies after 21 weeks unless the abortion will prevent the mother’s death or “substantial and irreversible impairment of a major bodily function.” However, the law was never enforced, thanks to sizable and strategic political contributions from the abortion industry. In fact, the numbers of lateterm abortions rose. In 2002, the same year Kathleen Sebelius ran for governor, Phill Kline ran for Kansas attorney general on a platform promising to change that.

Soon after assuming office, in January 2003, Kline began inquiring into how it was that Planned Parenthood in Overland Park routinely performed abortions on young girls, some as young as ten and eleven, yet never filed state mandated reports of suspected sexual abuse of children. As attorney general, Kline also had access to the compliance reports required to be filed with the Kansas Board of Healing Arts (KDHA) for abortions past 21 weeks. The KDHA form asks the physician to first verify whether the baby was viable. If so, the physician must state whether the abortion was necessary to prevent either: (a) death or (b) impairment of a major bodily function. If “impairment” is checked, the form asks the reasons and basis for that determination. On reviewing Tiller’s KDHA reports, Kline noticed that no medical diagnosis was ever provided as the basis. Instead, Tiller simply wrote in the language of the statute, namely, “to avoid substantial and irreversible impairment of a major bodily function.”

To assess whether this claim was legitimate, Kline presented this evidence to Judge Richard Anderson, who found probable cause to issue subpoenas for 90 abortion records, some from Tiller’s clinic and the rest from the Planned Parenthood facility in Overland Park. Over the next few years, for virtually Kline’s entire four-year term as attorney general, Tiller’s and Planned Parenthood’s lawyers managed to delay producing the records through one legal maneuver after another—aided by a compliant court system.

All the while that was going on, Kline found himself endlessly smeared in the media. He was depicted as a religious fanatic, intent on prying into the private lives of women. The media totally ignored the fact that the records sought would be redacted, scrubbed of any identifying information.

On another front, the abortion industry poured millions into fighting Kline politically. Johnson County District Attorney Paul Morrison agreed to switch parties to run against Kline in November 2006. Funded not only by Tiller but by abortion groups nationwide, Morrison outspent Kline four-to-one. On winning, Morrison claimed “a victory for Kansans who want to make sure their most private personal records are kept private.”

In October 2006, just weeks before the ill-fated election, Kline finally obtained the 90 abortion records he had subpoenaed in 2003. Kline’s suspicions with regard to Tiller were confirmed. Not a single patient had presented with a medical condition necessitating abortion. While Kansas’ late-term abortion law requires that impairment to the mother be “serious” and “irreversible,” Tiller’s files reported such spurious diagnoses as “single episode, major depression” and “adjustment disorder.” On December 20, 2006, Kline filed 30 counts against Tiller’s clinic for performing illegal, late-term abortions. The next day, at Tiller’s prompting, the Sedgwick County district attorney got a traffic court judge to dismiss the charges without reviewing the records. Kline appealed the dismissal as unwarranted. He also appointed a special prosecutor to take over the case after he left office.

In an interesting twist of fate, although he had lost the attorney general’s election, Kline was chosen by Republican precinct captains to fill the vacancy left by Morrison as Johnson County district attorney. Thus, on the same day in January 2007 that Morrison took over Kline’s post, Kline assumed Morrison’s old job as Johnson County district attorney—the county where the Overland Park Planned Parenthood is located. Before leaving office, Kline obtained permission from Judge Anderson to take with him his working copies of the subpoenaed Planned Parenthood patient files. This meant he could continue his case against Planned Parenthood in his new role as the county district attorney.

As the new attorney general, Morrison fired Kline’s special prosecutor and abandoned Kline’s appeal of the dismissal of the charges against Tiller. The media falsely reported the dismissal as a loss on the merits. The media also reported that Morrison had reviewed the subpoenaed records from Tiller’s clinic and had found Kline’s charges “ridiculous.” On the contrary, the criminal charges Kline had filed against Tiller’s clinic were supported by an affidavit from a preeminent psychiatrist, Dr. Paul McHugh, who had reviewed the redacted Tiller patient files. In June 2007, McHugh publicly shared his insights in an interview, which was later posted on YouTube. McHugh was asked if he had seen any patient files that justified a late-term abortion on the basis of major or irreversible psychiatric damage. His answer was unequivocal: “I saw no patient file that justified abortion on that basis.”

To avoid conceding what a sham Tiller’s “compliance” with late-term-abortion law was, Morrison adopted an interpretation of the statute that made it irrelevant whether a woman had a legally justifiable need for an abortion—or not. So long as two, unaffiliated doctors asserted that she did, that ended the inquiry. This enabled Morrison to dismiss all the charges and also ridicule Kline for bringing them. In their place, Morrison filed much weaker charges against Tiller, alleging that the two doctors sanctioning the abortions were, in fact, affiliated.

As Kline himself might have predicted, when Tiller went to trial on those charges in March 2009, he was fully acquitted. Meanwhile, as district attorney of Johnson County, Kline attempted to proceed with his case against Planned Parenthood. When Judge Anderson had initially received the records, he commissioned special counsel to go through and redact all identifying information. In the process, the special counsel had turned up a serious problem for Planned Parenthood: Out of 26 files on abortions past 22 weeks, there was no record of non-viability or maternal risk.

Back-pedaling, Planned Parenthood’s lawyers “explained” that the non-viability reports were kept in a separate, secure file and would be provided. Months later, Kline compared these reports with the original KDHE reports. Kline observed that the reports, which were supposed to be photocopies of the KDHE originals, did not match. A document expert from the Topeka Police Department called in by Judge Anderson concurred. The reports Planned Parenthood lawyers had provided “didn’t match up.”

In April 2007 Morrison made an oral motion ordering Kline to give the evidence back to Planned Parenthood, but Kline refused. Morrison had the Kansas Bureau of Investigation go after Kline for “stealing public records.” Planned Parenthood sued Kline for contempt and demanded that the files be returned. Despite Kline’s being sued in his official capacity, the state refused to cover Kline’s legal fees after Morrison asserted that Kline had “acted maliciously” in holding onto the records. The case ultimately caused Kline to incur legal fees exceeding $200,000. In July 2007, Morrison filed a motion for Judge Anderson to return the files to Planned Parenthood. He also joined in Planned Parenthood’s suit against Kline. Opposing Morrison’s petition, Judge Anderson told the Kansas Supreme Court that returning the evidence to Planned Parenthood would “unacceptably increase the risk that the evidence could be lost, destroyed or compromised while active investigations and prosecutions are on-going.”

In October 2007, Kline presented his evidence against Planned Parenthood to Judge James Vano, who found probable cause that crimes had been committed and allowed the case to proceed. Kline immediately filed 107 counts, 23 of them felonies for allegedly falsifying records to cover up the missing viability testing records.

The media quoted Planned Parenthood’s CEO Peter Brownlie as saying, “We can’t allow antichoice politicians to harass and intimidate women or doctors in Kansas. . . . No health care provider should be threatened with felony convictions simply because elected officials oppose legal abortion.” Kline responded, “This is not about the morality of abortion but about the rule of law.”

In an extraordinary move, given the pending criminal case against Planned Parenthood, the Kansas Supreme Court ordered Kline to go to trial on Planned Parenthood’s suit against him. (It should be noted that, in Kansas, all seven justices of the state Supreme Court are appointed by the governor, who picks from a slate of three lawyers recommended by the Kansas bar, without any legislative confirmation process.)

The State Supreme Court designated a judge to hold a secret trial over five days in November and December 2007. The issue was whether Kline, as a district attorney, could permissibly hold onto his copies of the redacted patient documents. Attorneys from Morrison’s office, joined by lawyers for Planned Parenthood, were allowed to place Kline and his office’s investigators and prosecutors under oath.

Ultimately, the Kansas Supreme Court denied Planned Parenthood’s main requests. It refused to find that Kline had acted in bad faith or hold him in contempt. It found Kline had acted properly in retaining copies of the Planned Parenthood patient records, and Planned Parenthood was not entitled to attorneys’ fees. Writing for the majority, Justice Beier was clearly frustrated by this unhopedfor result. Displaying her contempt for Kline throughout the opinion, Beier concluded by calling on the Kansas Board of Discipline of Attorneys to take a hard look at Kline’s conduct. Justices Davis and MacFarland each wrote concurring opinions, agreeing with the end result but chastising the majority for, as Justice MacFarland put it, having acted “simply to . . . denigrate Kline . . . and to heap scorn upon him for his attitude and behavior that does not rise to the level of contempt.” (The Court’s opinion is available online at: http://www.kscourts.org/Cases-and-Opinions/ opinions/supct/2008/20081205/98747.htm.) In another strange turn of events, Morrison was forced to resign as a result of a sex scandal, stepping down on January 31, 2008.

Not surprisingly, the man Governor Sebelius appointed as Morrison’s replacement, Stephen Six, was equally unwilling to enforce Kansas abortion laws. In April 2008, when Kline issued a follow-up subpoena to Judge Anderson to testify at and bring the patient records to a preliminary hearing in the Planned Parenthood case, Six filed for a protective order. The Kansas Supreme Court granted it, ordering Judge Anderson not to appear in response to the subpoena and not to share the patient records. Deplorably, Planned Parenthood’s innumerable delaying tactics succeeded in running out the clock on Kline’s criminal prosecution. This was because Kline’s ability to continue the prosecution depended on his being reelected to a full term as Johnson County District Attorney. Kline lost in the 2008 Republican primary to “moderate” Steve Howe, guaranteeing that his term of office would end in January 2009. As expected, Howe has done nothing to pursue the case against Planned Parenthood.

What was it like, once you realized the other side was not just firing back indiscriminately, but now they had set their sights on you?

It was like “nuclear mud wrestling.” The whole concept of the rule of law was lost in the political power structure I was up against.

When you look back, what do you see as victories?

In the history of our country, I was the first prosecutor ever to obtain any patient records in a criminal proceeding against Planned Parenthood. U.S. Attorney General Gonzalez attempted to obtain patient records in the partial birth abortion case, but he backed down due to political pressure. Also, I was the first prosecutor to charge Planned Parenthood with criminal activity. Planned Parenthood stood to lose over $350 million of annual federal taxpayer funding.

What have you learned from your experience?

I have learned that in Kansas, although there are great laws restricting late-term abortions, few in power want those laws enforced. Few desire to know the truth of what is happening in our state’s abortion clinics. All of the outrage, all of the noise is directed at one thing: silencing the uncomfortable truth. It’s either willful ignorance or a decision to partner with the abortion industry.  When I started in public office, I was intellectually pro-life, but now I have come to see that the life issue is truly the issue of our time. The depth of evil that exists to protect this lie prevents the states from protecting children. How we determine the answer to this issue is what will determine where our nation will end up. Unless the truth prevails, abortion will destroy us as a nation. On the life issue, we are now in the same position that America was in the 1830s and 1840s. For our country to survive, there must be a new recognition that all life is worthy of the protection of the law.

If you had it to do over again, what would you do differently?

I would have been attorney general of another state besides Kansas! Kansas was ultimately a bad choice for this type of effort because of the political corruption there.

Did you see any cracks in the other side’s armor?

Yes, the fact that there is such power in the truth. I was overwhelmed by their resources. They had six attorneys working against me, and they just kept coming. But the truth has such power. The other side can’t stand up to the truth about abortion—how evil it is, how harmful, how exploitative of children, how contemptuous of the value of life and the principles of the dignity of all human life on which this nation was founded. Those in public office need to put their faith in the truth, not in holding onto their office. Ambition can’t substitute for the truth. There are a million reasons not to do the right thing, but only one reason to do it, and that’s because it’s the right thing to do. We’ve accepted less than we should have from those who claim to be our leaders. We need to pick our battles in fights where we can win, with political leaders not focused on getting reelected.

What do you say to pro-life lawyers who want to fight abortion in their states?

Identify your passion. Ask yourself, where is the truth in your heart? And then, if you’ve got the talent and the capabilities, go and take on the life issue. It’s not for an earthly reward.

What are you doing now?

Since January of this year, I have been serving as a visiting professor at Liberty University School of law, in Lynchburg, Virginia. I feel it’s important to train up the next generation, to help them to see they have a mission. I am also involved in an effort to launch more aggressive battles on the national front. I am thrilled to say that the national effort is proceeding well. I am working with Life Issues Institute of Cincinnati, Ohio, to bring a national focus to the truth about abortion. Life Issues Institute was co-founded by pro-life pioneer Dr. Jack Wilkie and Executive Director Brad Mattes.

Are you still facing threats to your law license as a result of Planned Parenthood’s ethics complaints against you?

Over 200 ethics complaint were filed against me by lawyers with Planned Parenthood and others aligned with them. Justice Beier indicated that the Kansas Board of Discipline of Attorneys should take a hard look at “my conduct.” The Board works for the Kansas Supreme Court. This board has already investigated me for five years due to frivolous and continued complaints by the abortion industry. I had already incurred over $200,000 in legal fees, defending myself against Planned Parenthood’s suit to try and force me to turn over the patient records that were the evidence of their criminal conduct. I could have walked away from that fight, but the prosecution would have ended, and I chose to stand for what is right. I am still looking at about $150,000 in legal fees ahead of me, to save my law license from the abortion industry’s frivolous complaints.

How can people help you?

I would invite them to go to my website, www. standwithtruth.com, where they can learn more about the history of this case, and they can also make a tax-deductible contribution. Gifts will not only help defray my legal costs but also help launch a national effort for the rule of law.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.