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Kansas Attorney General Launches Assault on Women and Privacy Rights

Reported by Marie Therese - March 8, 2005

(Filed late due to computer problems.) This post is for our lawyers out there, because it involves the Fourth Amendment and Roe v. Wade. Last Thursday (3/3/05) Bill O'Reilly interviewed FOX's very own Senior Judicial know-it-all, Judge Andrew Napolitano, about the legal tactics used by Phill Kline, Attorney General of the State of Kansas, ostensibly to root out criminals, but in reality to harass and intimidate past and future recipients of abortion in Kansas. I know how I felt as I was doing the transcript. But I'm no lawyer. I would love to hear from our legal beagles about Napolitano's opinions and whether or not AG Kline has any constitutional legs to stand on. I suggest you read this Los Angeles Times article first since it is mentioned in O'Reilly's Talking Points Memo (TPM) and interview. You might also want to check out the New York Times as well.

Bill O'Reilly started off his show noting that AG Kline "wants 90 medical records of underage girls and some women who've had abortions - late-term for the women." In the TPM O'Reilly mentioned that Kline caught the BTK killer, Dennis Rader, by obtaining his daughter's DNA records without her consent, by getting a judge to sign off on a search warrant allowing him access to her medical records. In a similar move, the Kansas Attorney General has petitioned a judge (the same judge?) for permission to execute a search warrant on approximately 90 medical files currently held in the offices of Dr. George Tiller, who runs an abortion clinic.

O'Reilly: "More facts: 78 girls under the age of 16 had abortions in Kansas in 2003. Kansas law says that sexual intercourse with a child under 14 is rape - not statutory rape - rape. Are you telling me the Kansas authorities have no right to investigate those rapes? ... On the subject of the late term abortions, it's against the law to kill a fetus in Kansas after 22 weeks, unless there's irreversible harm to the mother's health."

Kline believes Dr. Tiller has broken that law and wants to see the medical records of the "questionable" cases. According to O'Reilly, "Kline says the names of the women involved can be kept confidential. He just wants a Kansas court - not himself - the court - to look over the abortion procedures."

Allegedly Dr. Tiller performs about 500 late-term abortions every year. After Kline's hand-picked judge signed the search warrant for the doctor's records, another judge filed an injunction preventing the search. The case is headed to the Kansas Supreme Court.

[COMMENT: A word of caution here. O'Reilly and later Napolitano to a lesser degree deliberately intermix the class of women who've obtained late-term abortions with the class of women who are underaged and possible victims of rape. There are two distinct legal classes here, with two distinct sets of legal precedents. At times it is impossible to distinguish which of the two classes of women is being discussed. It is an old trick to deliberately confuse the audience, raising the emotional level to a fever pitch while jumbling up the actual information. Another important thing to keep in mind. When O'Reilly interviewed Phill Kline on March 1st, Kline specifically stated: "... [T]he women's privacy is not jeopardized by this. The records would be provided to the court and I do not need to know the women's names. I need to know the CHILDREN'S NAMES [my emphasis] because they are victims of rape. ... The documents would be provided to the court under seal. It is a judge that has issued this subpoena, not myself. He's found probable cause of evidence of a crime that exists at the clinic. And it would be sealed by the court and not released to the public." During this same March 1st interview, Kline was very careful not to use the term "partial-birth abortion" and consistently called the procedure he was investigating "late-term abortion."]

O'Reilly: "There has to be oversight on child rape and late-term abortion. That's the law. ... private medical records can't be used to hide criminal activity. The courts have ruled against that time and time again. We hope the Kansas Supreme Court continues that tradition. ... We're glad he's (Dennis Rader's] off the street. Brutal criminals cannot be allowed SANCTUARY [his emphasis] in the doctor's office. And that's the Memo."

[COMMENT: Notice how O'Reilly has equated women who get abortions with the BTK serial killer. Ain't it great to be female in America today? You get paid 30% less than men and you get vebally kicked around on a daily basis by pompous bags-of-mostly-air like Bill O'Reilly.]

Transcript of interview between FOX Senior Judicial Analyst, Judge Andrew Napolitano, and Bill O'Reilly.

O'REILLY: Where am I going wrong?

NAPOLITANO: I don't think you're going wrong at all. Look. Attorney General Phillip Kline followed the Constitution to a tee. He had evidence of probable cause. He went to a judge.

O'REILLY: Let's stop you there. What's the evidence of probable cause?

NAPOLITANO: The evidence is anecdotal information that some of the women who received the abortions were under age 14. Therefore, by definition, the intercourse that caused the fetus to grow was rape.

[Dictionary definition of anecdotal: "Based on casual observations or indications rather than rigorous or scientific analysis.]

O'REILLY: OK. Well, that's not anecdotal because they have to report that and 70 - and a bunch of people reported that - I don't know the exact number but ....

[COMMENT: From the L. A. Times: " Kansas law already makes doctors report every abortion after 22 weeks of pregnancy to state authorities — one of a few states with that requirement. That means state officials already have reports, which replace the woman's name with a number and provide her age, race, the age of the fetus and evidence to sustain the medical necessity for the abortion. Without evidence that doctors broke the law or that their mandated reports were inadequate, what legitimate reason does Kline have to seek more information? And if his aim is to punish negligent physicians, why has he refused the clinics' requests to shield the patients' identities and remove extraneous personal information?"]

NAPOLITANO: Right. He gathered that information from ...

O'REILLY: 78, I think.

NAPOLITANO: ... various sources.

O'REILLY: Right.

NAPOLITANO: He also gathered the information that you just cited in your Talking Points Memo - the extraordinary number of late-term abortions, illegal under Kansas law, as you've said, unless there's irreversible harm to the mother and he's looking for the evidence of the irreversible harm. So he presents this evidence to a judge. The judge says "You know what? You're right. It is more likely than not that there is evidence of criminality in these abortion clinic records. I'm going to sign the search warrant. But, to protect their privacy, I'm not going to give you these documents, Attorney General. I'm gonna get them. I'm gonna " - this is the judge - "I'm going to hire a doctor. The doctor and I will look at these records so only those names ..."

O'REILLY: With the woman's name redacted.


O'REILLY: The woman's name is not, is not - they don't know, the judge or the doctor hired doesn't know the woman's name unless they feel that there has been a crime.


O'REILLY: Then they can ask for it.

NAPOLITANO: Because, if the woman has been the victim of a crime ..

O'REILLY: Right.

NAPOLITANO: ... whether it's rape or destruction if the fetus, the government is entitled to know if she's a victim and if she wants to prosecute.

[COMMENT: On March 1st, Bill O'Reilly and AG Phill Kline said the following:

O'REILLY: "But they say there are no plaintiffs here, that the women who go in to Tiller haven't come to you and said "Yeah. I had a headache and he gave me a late-term abortion and he violated the law." Nobody's come in and said that, so whay are you nosin' around, Mr. Attorney General?

KLINE: Well, they don't have to ... (End 3/1/05 excerpt.]

O'REILLY: OK. Now. How did the authorities in Kansas get the medical records of the BTK serial killer's daughter without her consent?

NAPOLITANO: They followed the Constitution. They went to a judge, presented a judge with evidence of probable cause - "Judge, we think we have DNA of the BTK killer. We think, tentatively, a matching DNA is in this medical record. The judge said "Fine. It's under oath. I'm gonna sign the search warrant."

O'REILLY: Alright. What's the difference between getting that woman's medical records, alright, who didn't give her consent ...


O'REILLY: ... and getting the medical records of the late-term abortion and the minors who had the abortion. What's the difference?


O'REILLY: That's the only difference.

NAPOLITANO: That is the only difference.

[COMMENT: Abortion is not a crime. Binding, torturing and killing people is. There were MOUNDS of REAL evidence against BTK, including a DNA sample. There was only uncorroborated "anecdotal" evidence against Dr. Tiller.]

O'REILLY: So what you're saying to me then is that the liberal media and another judge, who blocked the Attorney General, and the initial judge for getting this. They are ruling, not on the law, but on their belief that all abortion should be legal.

NAPOLITANO: Yes. They have this belief, which is shared by a lot of people in our country, that because an abortion is performed in the zone of privacy, the government cannot enter that zone to find out if events that preceded that abortion or the abortion itself were criminal. Now, the Attorney General has resisted the temptation - which a lot of law enforcement falls into - to just go and group those records. In the Rush Limbaugh case of his drug problems, the government did not go to a judge to get a search warrant. That's what his whole case is about. They just went to his doctors and grabbed the records. Attorney General Kline, to his credit, followed Kansas law and followed the federal Constitution, which said "Go to a judge. Present the evidence. The judge will grant or deny ..."

O'REILLY (interrupting): Right. One judge said OK to Kline, but another judge blocked it. That's why it's at the Supreme Court level in Kansas now.


O'REILLY: Now, a couple more questions. We only have 2 minutes. You read the Los Angeles Times editorial today (3/3/05)?


O'REILLY: It wasn't true. What they said wasn't true.

NAPOLITANO: It absolutely was untrue. They accused Attorney General Kline of doing the opposite of what he did. They accused him of grabbing these records in defiance of the Constitution. (A) He hasn't grabbed the records. (B) If and when he does get them, the privacy of the women will be protected. (C) In fact he did follow the Constitution by going to a judge.

O'REILLY: And they don't even go to him. The Times doesn't mention that!

NAPOLITANO: No. The Times doesn't mention that the names will be blocked out and that the records are going to to judge and the judge hired a physician.

O'REILLY: And they don't - and the Times doesn't mention it's only 98 out of tens of thousands of cases.


O'REILLY: They say it's a fishing expedition for everybody.

NAPOLITANO: I must tell you that Attorney General Kline and this trial judge have done the unprecedented. In almost every sphere of law enforcement, when the court enters a search warrant to grab documents, the documents go directly to the authority that asked for the search warrant.

O'REILLY: And he says - Kline - "I don't want 'em. Send 'em over to the judge and a doctor. Let them make the determination if there's been wrongdoing, then I'll take it over."


O'REILLY: Alright. So what we have here, to sum up, is you believe that the Attorney General of Kansas is on legal ground firmly.

NAPOLITANO: Absolutely.

O'REILLY: You can't protect a crime by using privacy, right?


O'REILLY: And the Los Angeles Times and the New York Times, [which] said the same thing pretty much, are misleading people on purpose?

NAPOLITANO: Absolutely.

O'REILLY: Alright.

NAPOLITANO: [Please note: There are TWO possible ways to punctuate the Judge's comment here. It was impossible from inflection or any other clues to determine which is the correct one, so I'm giving you BOTH possibilities which have quite different interpretations. Over the past year I have learned that Judge Napolitano is a master of using language that implies one meaning verbally while connoting another in print.]

(a) In the oral argument before the judge, the lawyer for the clinics said "I saw the records." There is some evidence of a crime there. [meaning that the lawyer looked at the documents in the context of his job as an attorney.]

b) In the oral argument before the judge, the lawyer for the clinics said "I saw the records. There is some evidence of a crime there." [meaning that the lawyer looked at the documents in his capacity as an attorney but violated the attorney-client privilege by divulging to the public that he has seen evidence of wrongdoing in those files.]

O'REILLY: The lawyer did?

NAPOLITANO: The lawyer admitted he saw the records. They shared them with him. But they won't give them to the Attorney General.

O'REILLY: OK. That's why you watch FOX News. We tell you the truth.


Duh? The "truth" carefully crafted to look like something it isn't!

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