Legal

Grand Jury By Petitition - A Final Chance For People's Justice Or An Abortion Of Justice?

MayorBob.

Posted to Legal on Tue Jun 17, 2008 at 01:14:44 PM EST (promoted by port1080). RSS.

People in Kansas have been trying for some time to stop Dr. George Tiller from doing what he does best. They've tried to legislate him out of business, without luck. They've tried to find sympathetic prosecutors to charge him with a crime - likewise without luck. They've even shot him twice, but only winged him in the arm.

Now, they're taking advantage of a century-old law which was intended to allow citizens to go after corrupt public officials. Those using the grand jury system against Dr. Tiller believe they are serving a higher power. Those who are on Tiller's side say they are perverting justice.

Dr. Tiller is the primary physician in residence at Women's Healthcare Services PA in Wichita, Kansas. Dr. Tiller's main practice involves performing therapeutic abortions and he openly advertises that he specializes in late term abortions. It is this last piece of information which has him caught up in the grand jury process. Kansas is one of six states which allow grand juries to be convened if someone can get enough signatures on a petition. Someone got enough to seat a grand jury considering whether Dr. Tiller's practice violated Kansas abortion law, specifically the part which outlines what sorts of written information patients must be given.

According to Dr. Tiller this consent form satifies "the basic notification agreement." The current grand jury has been sitting and listening to evidence for months; they are scheduled to wrap up their proceedings next month. At that point, they will either return an indictment against Tiller or not (a grand jury by petition which was investigating another abortion clinic in Overland Park failed to return an indictment this past March).

According to State Senator John Vratil (R - Leawood): "This is an abuse of the grand jury system. It's being used in a political way to further a political cause, and that was never the purpose of the grand jury system in Kansas." As Vratil chairs the Senate Judiciary Committee, he speaks from a base of knowledge. Kansans For Life (KFL) have been the motive force behind the two grand juries brought into existence to go after abortion providers. KFL's spokesperson David Gittrich disagrees with Senator Vratil, "this is a measure for the people to get some justice if law enforcement doesn't do its job, and that's exactly what we're doing." But, with a track record of nine grand juries by petition recently in Kansas (most going after porn merchants) and only one conviction to show, it does raise the question of is this process costing the people more than they receive in return in the way of justice?

In addition to the considerable time of the grand jurors who must sit and hear the evidence presented there's also the considerable time, energy and expense of collecting the evidence and subpoenaing witnesses. All that time and expense to support a process which one New York jurist once proclaimed could result in the indictment of a ham sandwich. And, as long as grand jury by petition is used for its original purpose - to get at corrupt public officials that law enforcement won't touch - the system is good according to law professor Douglas Beloof. But Beloof believes using it to pursue dubious political agendas can only do damage, "this is an important check, and to the extent that it's used for political purposes as part of some sort of broader agenda, it threatens the viability of the check itself." Speaking of politics, if Tiller does end up indicted as a result of this grand jury, you may expect some sort of connection to Senator Barack Obama's run for the White House. It seems some observers detect an evil link between Tiller and Governor Kathleen Sebelius, who is considered one of those on Obama's short list of vice presidential running mates.

Tags: edited by Port1080, written by MayorBob, abortion, Kansas, grand jury, grand jury by petition (all tags)

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Can't (democratically) outlaw stupidity...

port1080.

Tue Jun 17, 2008 at 02:06:10 PM EST

5.00 (astute, astute)

When you get right down to it, one of the big failings of any democratic system is that if a majority (or a politically influential large minority) has a wrongheaded policy, they get a chance to enact it (or in this case, take advantage of a democratic process that was meant for completely different ends).  It's unfortunate, but there it is.  One thing that people in the opposition (on both sides - Democrat and Republican - since who is in the opposition obviously depends on who is in power on any given day in any given place) need to remember is that part of democracy is that sometimes we have to accept that bad or wrong policies will be implemented and may even persist for quite a long time - and there's nothing that can be done about it.  The alternatives (political surpression, one party states, civil war) have all been tried, and none have worked out all that well.

So, with that all said, my feeling about this situation is that as much as I am personally revolted by it, that it should be allowed to go on.  If enough people were willing to sign onto that position then the law must be observed.  If the people of Kansas are truly opposed to this, they can press for legislation to change the law to either eliminate petition based grand juries or to limit them to only cases where corruption charges are at question.  If the people of Kansas can't muster the political will to change the law, that's a shame, but what are the better options?  If you surpress anti-abortion activists and completely remove them from the political process you'll probably get more extremism, not less.

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Re: Can't (democratically) outlaw stupidity...

skeptic.

Wed Jun 18, 2008 at 09:30:21 AM EST

5.00 (interesting)

From the viewpoint of the anti-abortion activists, this does qualify as an anti-corruption issue, since, as they would put it, it is the responsibility of doctors to preserve life rather than to end it, and thus the killing of the unborn is a corruption of medicine.

If the US Supreme Court can become just a little bit more conservative, which could easily happen if this year's election is won by McCain, we will see the reversal of Roe vs. Wade and the end of legal abortion in the US, thus making these attacks on individual doctors unnecessary.

As most of you know, banning abortion would in many ways make things worse in the US.  We would see the return of amateur abortionists whose poorly trained efforts were in the past responsible for killing many pregnant women.  We would see many women who are not prepared for motherhood (financially, educationally, emotionally, or in any other way) being forced to raise unwanted children which they will do very badly, unleashing upon society a new generation of largely maladjusted and anti-social children who will, in due course, produce yet another, even larger generation of the same.  The justice system and the various social support networks, already strained to the breaking point in the US, will be strained well past the breaking point.  Although looking on the bright side, many of these maladjusted children may prove useful as cannon-fodder in the endless wars that will be perpetuated under McCain and his successors.  

As in the past, the more affluent women might simply evade the ban by traveling to other countries where abortion is legal.  But who knows, in some future Fortress America, all women leaving the country may be checked for pregnancy at the border, and if pregnant, locked up in special prisons for reluctant mothers.  No effort is too great to save the lives of the unborn!

In any event, we do live in interesting times.

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Re: Can't (democratically) outlaw stupidity...

joshv.

Wed Jun 18, 2008 at 04:43:38 PM EST

4.00 (astute)

"...we will see the reversal of Roe vs. Wade and the end of legal abortion in the US..."

I see these two outcomes constantly conflated by those of the liberal persuasion.  Do do you actually think that every state will legislate abortion out of existence if Row v. Wade is reversed or lessened by a future Court?

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Re: Can't (democratically) outlaw stupidity...

skeptic.

Thu Jun 19, 2008 at 12:00:39 PM EST

none

No, I don't think that every state would outlaw abortion in the event of the overturn of Roe vs. Wade, although the federal government might do so, in which case abortion would become illegal in all states.  However, there are also various other possible outcomes to the reversal of Roe vs. Wade, I was merely discussing one of the possible outcomes.  I could have been more clear about that, sorry for the confusion.

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Re: Can't (democratically) outlaw stupidity...

joshv.

Thu Jun 19, 2008 at 12:23:57 PM EST

none

The Congress being a rough representation of the opinions of the people, and the people being split roughly 55/45 (depending on the pole and pole questions) on this issue, I doubt you are going to get such a bill past the inevitable filibuster, as others have noted in this thread.

Also, I'd expect a wide variety of legislation in the states, from an outright ban, to allowing abortions with various levels of restriction, to open access to state funded abortions.  Even in heavily conservative states, compromises will have to be brokered to get bills passed, emotions simply run too high on this issue.

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let me try again

skeptic.

Thu Jun 19, 2008 at 12:42:17 PM EST

none

I think you have made a very believable analysis of the political balance regarding the abortion issue.  There are two opposed factions, both of which have a large and devoted base of support among voters.  No matter how desperately the right-to-life crowd works to ban abortion, they will have to deal with an equally dedicated pro-choice crowd.

I think that my original comment gave the wrong impression of what I was trying to say.  My point was not to predict the end of legal abortion in America, but to suggest that rather than focusing on harassing individual doctors, as in the story that we are presently discussing, the anti-abortion movement might be able to accomplish more at the federal level, by influencing the laws and the interpretation of laws that govern the entire country.  And even though they certainly do not have the number of votes needed for victory on a federal level, they can still aspire to recruit more people to the cause, with the ultimate aim of becoming a big enough majority to overwhelm the opposition - and such a result is hardly impossible, either, although equally well it may never happen.  The current stand-off does not necessarily have to last indefinitely.  Demographics and politics change in America.  The country  could become either more conservative or more liberal, and this largely depends upon the efforts of conservatives and liberals to spread the good word and to convince people to join them in their causes.  No one really knows the future.  We can make reasonable guesses, in some cases.  Your guesses are reasonable, but you may still wind up being surprised at how things will work out a decade from now.  Then again, you may not.  We shall see.

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Re: Can't (democratically) outlaw stupidity...

port1080.

Wed Jun 18, 2008 at 09:49:01 AM EST

none

From the viewpoint of the anti-abortion activists, this does qualify as an anti-corruption issue, since, as they would put it, it is the responsibility of doctors to preserve life rather than to end it, and thus the killing of the unborn is a corruption of medicine.

Well, I meant limit the law to political corruption.  The anti-abortionists may still think that the law should apply to their case, but as long as it's drawn carefully enough no court will listen to them.

If the US Supreme Court can become just a little bit more conservative, which could easily happen if this year's election is won by McCain, we will see the reversal of Roe vs. Wade and the end of legal abortion in the US, thus making these attacks on individual doctors unnecessary.

I'm not completely sure of this - a lot would depend on Roberts and whether he was willing to completely overturn the precedent of Roe.  My feeling is that if we saw just one more conservative justice, we would probably see more willingness to allow things like partial birth abortion bans, waiting periods, etc., but I'm not sure we would see an outright overturning of Roe.  With 2 or 3 more conservative justices that would be possible, but still not completely guaranteed.

Also, don't forget that even if the Supreme Court simply vacated Roe entirely, that would not make abortion illegal.  All it would do is throw the legality question back to the states (just as it was before Roe - don't forget that abortion was legal in some US states even before the Roe decision came down).  There are certainly many states where this would happen almost right away (particularly those that never bothered to take their abortion laws off the books), but abortion would remain legal in probably at least half the country, particularly if you take that half based on population (it would very likely remain legal in all of New England, New York, New Jersey, and Maryland, probably would remain legal in Pennsylvania and many of the midwest/upper midwest states (I'd guess Wisconsin, Minnesota, Michigan, Illinois would probably keep it legal), and certainly California, Oregon, and Washington would keep it legal.  I think there's little chance that a federal ban on all abortions would ever pass, so whatever legislation we would see would happen at the state level.  That doesn't mean that the decision would not be a disaster, but the SCOTUS simply does not have the power to outlaw abortion that you attribute to it.

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Sucks To Live In A Flyover State.

MayorBob.

Wed Jun 18, 2008 at 09:59:33 AM EST

none

Your post points out the importance of retaining Roe v. Wade as the law of the land. To allow the ball to go back in the states' court might see access to family planning, contraception, and abortion services (because it's really more than just about being able to get abortions for the pro-life lobby) still remain alive in those states you mentioned. But, if you're a rape victim or, worse (IMHO) impregnated by a close family member, and you live in one of the many states not listed in your post, well I guess it would just suck to be you.

Illegitimi non carborundum.

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Re: Sucks To Live In A Flyover State.

port1080.

Wed Jun 18, 2008 at 10:15:51 AM EST

4.00 (interesting)

Well, I did say it would still be a disaster - but there are degrees of disaster.  I wouldn't want to live in Cuba, for example, but I'd much rather live in Cuba than North Korea.

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True that.

MayorBob.

Wed Jun 18, 2008 at 10:19:04 AM EST

5.00 (interesting, interesting)

I guess my question is why must part of the US be the US and another part be North Korea?

Illegitimi non carborundum.

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Re: True that.

port1080.

Wed Jun 18, 2008 at 11:47:00 AM EST

none

I don't think that either part would or should be like North Korea.  The analogy I chose probably wasn't the best, since it needs some explanation.  My comparison wasn't supposed to be comparing two parts of the US, but rather between two different pictures of a post-overturned-Roe U.S.  My picture is that it (the US as a whole) would be like Cuba - not a great place to live, but not unbearable.  In my analogy skeptic's view is represented by North Korea - a really awful place where nobody would want to live.  Skeptic made it out like abortion would be banned immediately if the SCOTUS overturned Roe and we'd suddenly have this Orwellian society where pregnant women were monitored 24/7 to make sure they didn't abort their fetuses - but in reality, if Roe was overturned, it wouldn't be nearly that bad.  It wouldn't be good, but it wouldn't be awful either.  Abortion is illegal in Ireland, for example, but nobody claims that country is a dystopian hellhole.  If Roe was overturned it would be very, very bad.  I don't want Roe overturned.  I think the right to abortion is a fundamental right all women should have.  That said, I also do not hold to the belief that Roe being overturned would be a sign of the end times.  I'm not trying to be cavalier about it - I know that a lot of women would suffer and some may even die - but there are plenty of other policy disagreements that have led to just as much suffering and death (lack of universal healthcare, for example) which we don't get nearly as worked up about.

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Re: Can't (democratically) outlaw stupidity...

skeptic.

Wed Jun 18, 2008 at 01:26:14 PM EST

none

In the scenario that I depict, there is a Republican President who appoints a conservative Supreme Court Justice, resulting in the overturn of Roe vs. Wade.  That does not in itself make abortion illegal, however, it does create the opportunity for Congress to enact legislation that makes abortion illegal, which is not unlikely in the situation that I describe.

Mind you, it would not be impossible for the Supreme Court to outlaw abortion on its own.  This would require more than the overturning of Roe vs. Wade, but it would be possible for them to rule that since murder is clearly illegal and since fetuses are people in their opinion, fetuses cannot be legally killed for any reason.  This would just be an interpretation of existing law, rather than a form of new legislation.  Essentially it just requires the Supreme Court to issue a judicial ruling on the meaning of the word "person".

It is in any event perfectly true that there are a whole range of possible consequences of the overturn of Roe vs. Wade, even though I chose to examine only one of those possible consequences.  It is also possible, who knows, that the American public will amend the constitution to explicitly permit abortion, once they realize that they are otherwise headed back to the bad old days of the back-alley abortionist.

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Re: Can't (democratically) outlaw stupidity...

port1080.

Wed Jun 18, 2008 at 03:21:39 PM EST

4.00 (astute)

which is not unlikely in the situation that I describe.

Unless you're saying that the Republicans will gain the sort of majority in Congress that they haven't seen since Reconstruction, I'd say that I'll have to disagree with you on that one.  This is one law that Senate Democrats would filibuster until the bitter end, and given that there are at least a few pro-choice Republicans left, I simply don't see it passing the Senate unless the Republicans had a filibuster-proof majority, which seems very unlikely in the near future (if anything, it's going the other direction - some projections claim that the Democrats will take a full 2/3rds of the Senate this time around).

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Re: Can't (democratically) outlaw stupidity...

skeptic.

Thu Jun 19, 2008 at 12:02:19 PM EST

none

Abortion, like same-sex marriage, is one of those strange issues in which party affiliation is no guarantee of how a politician may vote.

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