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With her first appointment to the Kansas Supreme Court as governor in 2003, Democrat Kathleen Sebelius chose the proudly “third-wave” feminist, Carol Beier. It was a timely choice.
That same year, Republican Phill Kline took office as Kansas attorney general. From Beier’s perspective, Kline represented a serious threat to the “reproductive freedom” that she, Sebelius and other third-wavers espoused.
As Kline sensed before taking office, the state’s two dominant abortion providers, Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri (CHPPKM) in suburban Kansas City and George Tiller’s Women’s Health Care clinic in Wichita, were ignoring state restriction’s on late-term abortion, Tiller flagrantly.
What Kline discovered only after a multi-year fight with Sebelius’ people to get access to relevant records was that both clinics were grossly ignoring mandatory reporting laws on child rape.
Of the 166 abortions performed on girls under 15 in the years 2002 and 2003, the clinics reported only three cases to the state Department of Social and Rehabilitation Services. They should have reported all 166.
Kline was prepared to press charges against both Tiller and CHPPKM. For reasons of ideology and campaign finance, Sebelius could not let this happen.
To begin, Sebelius persuaded Paul Morrison, a popular Republican district attorney from Johnson County in suburban Kansas City, to change parties and run against Kline in 2006. The state abortion industry invested nearly $2 million to help the local media defeat Kline.
To the dismay of the abortion industry, however, Kline was elected to fulfill the remaining two years on Morrison’s term as Johnson County district attorney. From that position, he was able to continue the investigation into CHPPKM he had begun as attorney general.
In October 2007, Kline filed 107 counts, 23 of them felonies, against CHPPKM. District Court Judge James Vano found “probable cause” of crimes having been committed and allowed the case to proceed.
Planned Parenthood and new AG Morrison sued Kline to derail the prosecution. When the case reached the Kansas Supreme Court, the justices grudgingly ruled in Kline’s favor and allowed his case against Planned Parenthood to go forward.
If the facts supported Kline, Judge Beier clearly did not. “His attitude and behavior are inexcusable,” she wrote for the majority, “particularly for someone who purports to be a professional prosecutor.”
Associated Press writer John Hanna uncritically described her summary as “a public tongue-lashing.” A Topeka reporter termed her opinion “a searing condemnation.” The Kansas City Star headlined its story, “Kansas Court Rebukes District Attorney Kline.” And remember, Kline won the case.
If the media were blind to what was happening, then-Kansas Supreme Court Chief Justice Kay McFarland was not. She called Beier’s opinion “the very antithesis of ‘restraint and discretion’ and … not an appropriate exercise of our inherent power.”
McFarland scolded Beier and the majority for attempting “to denigrate Kline for actions that it cannot find to have been in violation of any law and to heap scorn upon him for his attitude and behavior that does not rise to the level of contempt. ”
McFarland may have suspected that Beier’s hectoring of Kline was not spontaneous. Earlier that year, in fact, Beier co-authored a provocative paper that endorsed a strategy very much like the one used to defame Kline.
The paper was written for the Feminist Legal Theory and Feminisms (sic) Conference sponsored by the University of Baltimore School of Law and dealt with what is called third-wave feminism and its effect on parenting law.
The article’s closing quote by Gloria Steinem captures the spirit of this radical feminist incarnation. “We are talking about a society in which there will be no roles other than those chosen or those earned,” said the feminist icon and all-purpose leftist. “We are really talking about humanism.”
Understanding that tradition is not easily discarded in a state like Kansas, Beier and Walsh cite approvingly a strategy suggested by feminist law professor Bridget Crawford.
Write the authors, “Crawford posits that the third-wave’s reclamation of feminism through engagement with the media is powerful ‘cultural work’ that may be a necessary pre-condition to an evolution in the law.”
According to Crawford, “The media are tools to produce cultural infrastructure, without which even the best intentioned and artfully designed legal reforms are ineffective.”
Beier knew something about the media. Before going to law school, she worked several years for the Kansas City Times, the then-sister publication of the Kansas City Star.
The Star proved to be the most useful of all media “tools” at Beier’s disposal. Indeed, the paper won Planned Parenthood’s top 2006 national editorial honor for its work defeating “anti-choice zealot” Kline and attacked him relentlessly thereafter.
So powerful was the media’s “cultural work” that in May 2007 Sebelius had no qualms about letting Planned Parenthood celebrate her birthday at a big Kansas City blowout.
Leading the “conga line around the concert hall” was Peter Brownlie, the local CEO whose abortion clinic was then at the center of Kline’s investigation. The partiers “sure know how to have fun!” enthused the Planned Parenthood newsletter.
With the cultural infrastructure so well established, Kline lost his re-election bid and was forced to leave the state to find employment.
Wanting to make an example of Kline lest some other prosecutor challenge Planned Parenthood in the future, the activists on the Supreme Court prompted an ethics investigation into Kline’s handling of the abortion cases.
Ironically, one of the charges was that Kline did not share the scope of his investigation with Sebelius. This was true. Kline feared her people would hamper the investigation and possibly destroy evidence.
As it turned out, they did both. Planned Parenthood will likely escape prosecution because Sebelius’ health department and her attorney general’s office separately destroyed key evidence.
Last week, as the decision in the ethics case neared, Kline filed a recusal motion showing that Beier’s 2008 opinion was “flagrantly dishonest in its presentation of facts.”
After reading Kline’s motion, four other justices decided that they, too, had previously complained about Kline’s behavior and recused themselves, as did Beier.
In doing so, the justices gave Beier cover. A public airing of the Beier-led assault on Kline would have seriously damaged the court’s reputation and Sebelius’.
Planned Parenthood stood to lose over $300 million in federal funding if CHPPKM had been successfully prosecuted. Sebelius protected Planned Parenthood’s interest in Kansas and now oversees its funding as Secretary of Health and Human Services.
The ladder goes up, Kathleen, but the circles go down.