What's wrong with Kansas? (Grand juries by petition edition)

Regular reads will know of my personal distaste and reprehension at abortion, and that I am personally pro-life.

However, this story in today's NYT makes me wonder to what extent people will go to stop abortions. There used to be a saying, "Who said anything about America? This is Mississippi" -- in response to what many rightly considered the most racist state and legal system in the country. Now, it's Kansas' turn for ignominy of a different kind.

A physician in Kansas, one of the few in America that still performs "late term" abortions, has been relentless picketed, been the subject of lobbying groups -- and even shot. Now, he's facing a grand jury investigation. It's not the first, it would seem, but in an unusual move enough signatures on a petition were gathered in order to force a grand jury to convene to determine if there is enough evidence that abortions were performed after 22 weeks -- a criminal offense in Kansas.

It's not the first time a petition has been used to force a grand jury to convene. In the last few years, it's been used 10 times -- eight against explicit videos magazines, two on violations of reproduction laws. So far, there has been only one conviction from this procedure. Originally used against the adult video stores, most simply decided to close down rather than fight the charges; itself a form of censorship. (What was it that Justice Harlan Black once said: "I recognize obscenity when I see it?" Certainly I recognize the harmful effects pornography can have, but if women aren't being raped or tortured and there are no children involved -- and the consumers recognize that what they're consuming is fantasy and not even plausible in real life -- I think people should mind their own business.)

The law dates back to the days when railroads ruled and there were battles over which cities got to be the county seats. It was meant to be a check against abuse of power; but this 1887 law remains on the books, so all that is needed to force a grand jury to meet is 2% of a county's turnout in the previous general election plus 100. In Wichita, that's 3500 signatures and a self-styled "pro-life" group gathered double that, 7000.

What's bothersome about this are the following: First, this amounts to judiciary by poll. People don't like the fact prosecutors won't file charges because of lack of evidence, and DAs may very well have a reason why they know the charges won't stick. So they file private charges of their own, or gather a petition. The implications of this, rule by mob, are frightening. This may be something some people may approve of but people of conscience should not. A similar petition law next door in Oklahoma led to a grand jury trying to figure out if there was a conspiracy in the Oklahoma City bombing beyond Timothy McVeigh and Terry Nichols. The ham sandwichers spit out the ham sandwich and stated clearly there wasn't.

Second, by issuing a sub poena for medical records to find out if a crime has been committed, this rides the edge of harassment of women who have had to make a very difficult decision. The Kansas Supreme Court has allowed this investigation to proceed but has warned against a fishing expedition. Problem is, that's precisely what the petitioners want; smoking guns so they can hound the women to no end.

For what it's worth, the clause in dispute states that an abortion may only be performed after 22 weeks where the fetus is not viable, or a pregnant woman would otherwise face "substantial and irreversible impairment of a major bodily function." This is so broad that it could be and probably should be declared void for being too vague. Other states which have drawn a line use such terminology as, say, the continuation of the pregnancy would cause damage to the fetus, or to the physical or mental health of the mother," a formula which courts have upheld.

There's a reason why there are district attorneys. There job is to represent the interests of the people. They are the order in "law and order," and if they feel no law has been broken then their decision should stand. If voters don't like it, they can vote out the DA in the next election. Otherwise, we could get Jim Crow back via the back door -- and rule by mob is the very antithesis of representative democracy and an independent judiciary.

Moreover, if voters want to restrict abortions further it should be down via legislation, not the courts -- and to use the courts makes the pro-life lobby guilty of the judicial activism they vehemently oppose. Of course, they also oppose pro-family programs and policies such as Head Start, WIC and lower-income tax relief. Little wonder why the pro-life dude writing this doesn't want anything to do with the radicals.

Vote for this post at Progressive Bloggers.