Rep. Kinzer Testifies Before The Special Committee on Federal And State Affairs
On September 7th Rep. Kinzer testified before a joint legislative committee regarding the need for proper enforcement of current laws limiting late term abortions in Kansas. To read Rep. Kinzer's complete testimony look here:

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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. I believe that by holding these hearings this committee is doing much to advance each of these important values. I am here today because I believe that the obscenity of late term abortions performed on unborn babies capable of living outside their mother’s wombs is an assault on human dignity. I am here today because I believe that the callousness with which these abortions are perpetrated upon women is an affront to basic standards of compassion. And I am here today because I believe that substantial and compelling evidence suggests such abortions are being performed in contravention of the rule of law.

My plea is that in evaluating these claims we focus on the evidence. I think it is especially important to review that evidence at these hearings because significant new developments have occurred since the adjournment of the Kansas legislature in May that bring into sharper focus the reality of the failures that have occurred over many years in the enforcement of the post viability abortion law (K.S.A. 65-6703) in Kansas.

First it is important to understand Kansas law in this regard. Under Kansas law an unborn child is viable if it is “capable of sustained survival outside the uterus without the application of extraordinary medical means.” K.S.A. 65-6701 (k). K.S.A. 7603-(e) further defines viability as “a reasonable probability that the life of the child can be continued indefinitely outside the mother’s womb with natural or artificial life-supportive measures.” 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 it’s 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 it’s helpful to start by looking at the last 4 years of available post viability abortion data from the Kansas Department of Health and Environment. From these records we know that over that time 1,086 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 – 2006; www.kdhe.state.ks.us/ches/). That means that in order to be lawful all 1086 such abortions over the last 4 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.

Indeed, it was for this very reason that I offered an amendment to this year’s budget requiring KDHE to enforce the existing reporting law. As I said at the time I brought this amendment forward after becoming concerned the legislature was not getting sufficient information to understand the real cause of late-term abortions in Kansas. It was my hope that with clearer reporting we would increase compliance with existing law and provide the legislature with the information necessary to implement public policies to address the causes of and reduce the need for late-term abortions.

My amendment, as it passed the House also would have directed the Kansas Board of Healing Arts to affirm the referring physician required by state law for late-term abortions is not legally or financially affiliated with the physician performing the abortion. This provision, which was objected to by the Senate, is particularly interesting now in hindsight given the fact that Attorney General Morrison has brought charges against Dr. Tiller for violating exactly this provision of law.

The governor ultimately vetoed my proviso citing privacy concerns. In response to which I can do no better than quote Brent Castillo of the Wichita Eagle Editorial Board, who noted of the Governor that “she is blowing more smoke than a western Kansas coal plant on the privacy concern. Privacy would have been protected, because doctors would have assigned numbers to patients and wouldn't submit names to the state.” ( Wichita Eagle, May 24, 2007).

I raise this particularly because it is on this issue of privacy that I think so much of the real issue at stake has been obscured by the desire to re-fight the 2006 Attorney General’s race. Those who continually use privacy as a shield behind which to hide the practice of illegal abortions in Kansas should at the very least be asked to articulate the basis for their alleged privacy concerns rather than merely asserting them baldly with no supporting argument as is typically the case.

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 current Attorney General 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 for enforcing this portion of the law, I would like to add a note of concern as well. On June 28, 2007 when the Attorney General 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 the Attorney General, “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.

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.”

It is my hope that these hearings will act as an encouragement to the executive branch to act with both reason and energy in their implementation and enforcement of K.S.A. 65-6703, to the end that human dignity would be respected, compassion would be exercised and that the rule of law would retain its rightful place in our social order.