1887 Kansas Law Launches Abortion Probe

Religious conservatives have dusted off a largely forgotten 1887 state law that allows citizens to launch grand jury investigations, and they are using it to help turn Kansas into one of the nation's biggest abortion battlegrounds.

A grand jury that was impaneled Jan. 8 by way of a citizen petition drive is investigating Dr. George Tiller, a Wichita clinic operator abhorred by anti-abortion activists because he is one of the nation's few physicians who perform late-term abortions. This is the second such citizen investigation of Tiller since 2006.

Phillip Jauregui, counsel for the anti-abortion Life Legal Defense Foundation, said Kansans are invoking the 19th-century law because prosecutors are too soft on abortion.

"This is a right the people of Kansas have given themselves," he said.

But others say the law is a dangerous tool.

"This is a witch hunt - plain and simple," said Vicki Saporta, president of the National Abortion Federation, an abortion rights group. "It clearly demonstrates the inherent danger of empowering biased advocacy groups to impanel a grand jury."

Normally, prosecutors decide whether to convene a grand jury to investigate something and bring charges.

Under the Kansas law, enacted during the Gilded Age and the nation's great railroad boom to curb political corruption, the people can force an investigation if they collect signatures from a certain percentage of voters in a county. In small counties, that can be a few hundred signatures; in Wichita's Sedgwick County, about 4,000.

Five other states provide for citizen-petitioned grand juries: Oklahoma, New Mexico, North Dakota, Nebraska and Nevada, according to a Tiller attorney.

One of the most publicized grand juries convened by citizen petition was formed in Oklahoma after the 1995 Oklahoma City bombing, which killed 168 people. The investigation was prompted by suspicions that Timothy McVeigh and Terry Nichols had help in the bombing. But the grand jury found no evidence of a wider conspiracy or a government cover-up.

So far, no other state appears to have used the process to pursue a social and moral agenda as extensively as Kansas, which is attacking not just abortion, but pornography.

Since 2005, citizen petitions have forced several grand juries in Kansas to investigate whether adult bookstores should be charged with obscenity. Twenty stores were indicted, said Phillip Cosby, executive director of the National Coalition for Protection of Children and Families. Most of the cases have not been resolved.

The strategy? "To strengthen the prosecutor's hand" and let authorities know that "they are not alone - that we the people feel there is a very big problem," Cosby said.

The anti-abortion movement rediscovered the law when David Gittrich used it in 2006 to force an investigation into the death of a Texas woman who had an abortion at Tiller's clinic. Though the grand jury failed to return an indictment, people noticed.

Said Gittrich: "I was inspired by God to use the grand jury."

This time, Tiller is under investigation on suspicion of violating a 1998 state law restricting late-term abortions. He has denied any wrongdoing.

Tiller has long been at the very center of the nation's abortion battle. His clinic was bombed in 1985, and eight years later, a woman shot him in both arms.

"We see in Kansas a perfect example of a system which has virtually become active vigilantism," said Lee Thompson, an attorney for Tiller. "A very small minority number of people who have a specific agenda can force a criminal investigation - and I think that is a usurpation of the executive power of government."

Forcing a grand jury investigation requires signatures from 2 percent of the number of people who voted in the last governor's election in the county, plus 100 more names. In Tiller's county, activists gathered nearly 8,000, or twice as many as required.

Similarly, in December, a citizen-impaneled grand jury began investigating a Planned Parenthood clinic in the Kansas City suburb of Overland Park.

Then-Kansas Attorney General Phill Kline filed charges against Tiller in 2006, accusing him of performing 15 late-term abortions without the required medical justification and failing to report details to state health authorities. But a judge threw out the case in a jurisdictional dispute involving the district attorney in Wichita.

Then in June, Kline's successor, Paul Morrison, brought new charges against Tiller, accusing him of not getting the signature of a second doctor before performing late-term abortions.

Abortion opponents complained that the charges did not go far enough, and took matters into their own hands by pressing for a grand jury.

"I am still looking for justice," Gittrich said. "I am going to figure some way to get justice."
By Roxana Hegeman