At its best the pro-life movement in the United States has stood for the bedrock principles of human dignity, compassion and the rule of law. The intent of this legislation is to advance each of these important values. All Kansans have a right to expect that existing laws limiting late term abortions in Kansas will be followed and enforced. Kansans also have an interest in making sure the language of our partial birth abortion ban is written in a fashion that in indisputably enforceable. Furthermore, women should have the right to accurate medical information when making a decision regarding abortion. The bill before you today includes a number of provisions designed to strengthen enforcement of existing late term and partial birth abortion laws. And expands the relevant information that that must be provided to women who are considering abortion. Key provisions include:

1. Clarifies existing late term abortion requirements by clearly setting forth the obligation to specify the medical diagnosis and condition constituting a “substantial and irreversible impairment.”
2. Directs the Board of Healing Arts to revoke the license of any physician convicted of a violation of K.S.A. 65-6703, absent a 2/3 vote to the contrary by the board. The bill could be improved by an amendment to include a similar provision for K.S.A. 65-6721 (partial birth).
3. Clarifies the definition of viability (current law defines the term differently in K.S.A. 65-6701 & 65-6703).
4. Requires that at least 30 minutes prior to the abortion, a woman seeking a late term abortion be provided with a copy of the referring physician’s referral, and a copy of the abortion provider’s written determination regarding fetal viability, and/or the reason and basis (including the specific medical diagnosis) justifying the abortion under Kansas law.
5. Grants standing to a woman, her husband or the parents of a minor, to bring a civil action for damage against any person who performs an abortion in violation of Kansas late term or partial birth abortion law.
6. Establishes that prosecution for violation of Kansas late term abortion law can be brought by the Attorney General, the District or County Attorney where the violation occurred, or where any acts or effects constituting or requisite to the consummation of the offense occurred.
7. Requires that prior to the performance of an abortion a woman be informed that “the abortion will terminate the life of a whole, separate, unique, living human being.” (This language is law in South Dakota and was upheld by 8th circuit approved last year in case of Planned Parenthood v. Rounds).
8. Updates Kansas’ existing partial birth abortion ban by conforming it to the language of the federal ban upheld by the U.S. Supreme Court in Gonzales v. Carhart.

In considering any change in current Kansas abortion law it is important to first understand current Kansas law. Under Kansas law an unborn child is viable if it is reasonably probable “that the life of the child can be continued indefinitely outside the mother’s womb with natural or artificial life-support measures.” K.S.A. 65-6703. Under Kansas law an unborn child who an abortion provider has determined to be viable can not be aborted unless, two doctors determine that an abortion is necessary to preserve the life of the mother or that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman. K.S.A 65-6703(b)(4).

Kansas law further requires that a physician who aborts a viable unborn child must report the reasons and basis for the determination that an abortion is necessary to preserve the life of the pregnant woman or that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman. K.S.A 65-6703(b)(4).

I think its crucial in analyzing this statue to recognize the way in which the substantive requirements and reporting requirements found in the statute interrelate. These various requirements work hand in hand to create a clear and systematic approach to the implementation of our Kansas post viability abortion law.

If we look at K.S.A. 65-6703(4) we can see these steps quite clearly: 1) a determination is made as to gestational age; 2) if that age is 22 weeks or more a determination is made as to viability: 3) if the unborn baby is viable two doctors licensed to practice in Kansas then must determine if an abortion is necessary to preserve the mothers life, or to prevent substantial and irreversible impairment of a major bodily function of the mother; 4) if such a determination is made and an abortion takes place the doctor who performed the abortion must them report certain information; in particular the doctor who performed the abortion must report, 5) the determinations he made; 6) the reasons for such determinations; 7) the basis for the determination that an abortion is necessary to preserve the life of the pregnant woman or that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function; 8) this information is provided to the Secretary of Health and Environment under K.S.A. 65-445; 9) Pursuant to K.S.A. 65-445 the Secretary of Health and Environment may disclose all information reported to it to the Board of Healing Arts and the Attorney General, who may use said information for “the purposes of a disciplinary action or criminal proceeding.”

In order for our post viability abortion law to function effectively each of these steps must be properly followed and administer. Unfortunately, I believe the evidence suggests that our law is neither being followed by abortion providers not is it being properly implemented by the executive branch agencies charged with carrying out the law.

To understand why I believe this is the case its helpful to start by looking at the last 5 years of available post viability abortion data from the Kansas Department of Health and Environment. From these records we know that over that time 1,379 viable unborn children (as determined by the abortion provider) were aborted in Kansas . According to KDHE’s statistics none of those abortions were performed to prevent the death of the mother. (KDHE Abortion Reporting Statistics, 2003 – 2007). That means that in order to be lawful all 1,379 such abortions over the last 5 years must have been performed because 2 doctors determined “that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.”

Unfortunately it is at this point that the KDHE statistics become much less than helpful in getting at the truth because rather than report, as the law requires, the reasons and basis for such determination, the statistics provided merely restate the statutory language offering no clue as to the actual medical diagnosis used by the abortion doctor to justify the abortion of these viable unborn children.

But in any event I think is important to consider what the available evidence suggests about the reality of illegal late term abortion in Kansas . We can for example look to the initial complaint filed in December of 2006 against George Tiller for violation of the current Kansas late term abortion law. Among the charges are 15 instances from 2003 where the justification for aborting a viable unborn child included things such as, anxiety and depressed mood, single episode depression, acute stress, and even “no established diagnosis.” Recall that Kansas law allows such abortions only where there is a showing of substantial and irreversible impairment of a major bodily function.

Now again, these initial charges against Dr. Tiller have often been treated dismissively because they were brought by a person who lost an election. But I would ask you to remove personalities from the equation and look at the fact that both Judge John Anderson and Judge Eric Yost reviewed evidence related to these charges and found probable cause that crimes had been committed. Much has been made of the fact that a finding of probable cause is not the same as a finding of proof beyond a reasonable doubt. This is most certainly true. But neither is a probable cause finding a simple statesman that some over zealous prosecutor is suspicious that a crime might have been committed. Under Kansas law, as consistently reiterated by the Kansas Supreme Court:

"Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances/ within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to/ warrant a man of reasonable caution in the belief that an offense has been or is being committed.”(State v. Ramirez, 278 Kan. 402, 2004).

This is the legal standard that two separate judges found to have been satisfied. Those charges were dismissed by a third judge who had not reviewed any evidence in the case. They were dismissed on the pretext that the Attorney General, the chief law enforcement officer of the State, lacked the authority to bring the charges. This despite that fact that K.S.A. 65-445 specifically requires abortion records gathered by KDHE to be provided to the Attorney General for the specific purpose of bringing criminal proceedings. K.S.A. 65-446 (c).

But the salient question now is not what has been done in the past, but what happens next. Since those initial charges were filed against Dr. Tiller in Dec. of 2006 new information has now come into public view that sheds further light on the reason that two judges have independently found probable cause to believe that George Tiller is performing illegal abortions on viable unborn children. In particular, we now have an understanding of the opinions of an expert who was retained to testify in the original case against Dr. Tiller. This expert, Dr. Paul McHugh is a man of impeccable credentials and reputation within his field, here served 26 years as the Psychiatrist in Chief at Johns Hopkins Hospital and is currently the University Distinguished Services Professor of Psychiatry at that same institution. Dr. McHugh reviewed the medical records forming the basis for the initial charges against Dr. Tiller. As is clear from a review of those charges, the alleged “substantial and irreversible impairments” relied upon by Dr. Tiller are claimed to be psychological in nature.

Dr. McHugh, one of our nation’s most preeminent psychologists, has reviewed that claim and determined, in an opinion as definitive as any I have ever heard, that none of the files he reviewed provide a showing of “substantial and irreversible impairment.” Dr. McHugh’s complete remarks in this regard are widely available and I believe this Committee has already heard at least some of what he had to say.

My take on Dr. McHugh’s remarks are that they are a stunning indictment if the failure to properly follow and implement our post viability abortion law. His comments add tremendous credence to the fear that illegal abortions are being performed in Kansas on viable unborn children capable of living outside their mother’s wombs. We also now know, as already noted, that the Attorney General’s office also believes that Dr. Tiller has been operating in violation of K.S.A 65-6703. In particular the requirement of a documented referral from another physician not legally or financially affiliated with the physician performing or inducing the abortion.

While I commend the Attorney General’s office for enforcing this portion of the law, I would like to add a note of concern as well. On June 28, 2007 when then Attorney General Morrison announced these 19 charges which are currently still pending against Dr. Tiller, he also provided an indication of how his office will interpret K.S.A. 65-6703 going forward. In particular he expressed his opinion that K.S.A. 65-6703 does not require that the doctors who determine that an abortion is necessary to prevent substantial and irreversible impairment of a major bodily function of the mother have a good faith basis for their belief. To quote Attorney General Morrison, “It doesn’t matter if I think their reason was good or bad. It doesn’t matter if I think he’s a good doctor or a bad doctor. All that matters under Kansas law is that they sign off on that determination.” In short this interpretation of Kansas law would say that two doctor’s can lie about the existence of a substantial an irresistible impairment and still lawfully perform an abortion on a viable unborn child. It appears that AG Six has adopted this same interpretation.

I would posit that this interpretation, while facially plausible if one were to simply read two or three lines of the statue, is an absurd interpretation when the statue is read as a whole with due attention given to the interaction between the provisions various parts.

The upshot of all of this is that while we have a comprehensive statute intended to govern the performance of abortions on viable unborn babies that statues effectiveness is being undermined by the refusal of executive branch agencies to properly implement and enforce its provisions. This failure undermines a fundamental principle of American government, that we are a nation of laws and not of men.

The most famous exposition of this principle was drafted by John Adams for the constitution of the Commonwealth of Massachusetts in justification of the principle of separation of powers: In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
- Massachusetts Constitution, Part The First, art. XXX (1780)

While the legislative branch can pass laws were are powerless to implement them. For that we must rely upon the diligence of the executive branch. This is the case because as Harvey Mansfield, the William R. Kenan Professor of Government at Harvard, recently noted in another context

“the law does not know how to make itself obeyed. Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say. There must be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason.” If passed HB 2206 will go a great distance toward advancing meaningful enforcement of Kansas’ substantive law regarding late term and partial birth abortion and as such restoring respect for the rule of law in Kansas.