A lesson in how Kansas Government Plays “Pass the Buck”

Today I had the privilege of spending the day under the dome in Topeka. Now some might wonder at my sanity when I say I enjoy the days I get to spend there… But I do, at least most of the time. Today was definitely interesting… And frustrating. Join me in a quick review of the day… And if I happen to bore you a little, at least skim to the end before you quit reading…

Representative Arlen Siegfried is the chair of the Special Committee on Federal and State Affairs. Eight additional members, made up of a mix of House & Senate members and a mix of Republican and Democrats, sit on this interim committee. Today this committee held hearings on what was the first of three full days of testimony on Abortion Reporting in Kansas. I know some of you are already thinking: statistics. Dull… Dry… Boring… it was anything but that.

First we had a great overview of all the Kansas Statutes dealing with abortion. Both the staff members from the Revisor of Statutes Office that were there did a good job explaining what the current law is and answering questions. The laws seemed clear and easy to understand and enforce. So, we break for lunch and when we come back, it’s like we’ve entered another world where the law is murky and no one is responsible for enforcing it. I soon found myself wondering what good does it do to elect good legislators who pass good laws if no one is required to follow them?

An Assistant Attorney General spent time explaining a US Supreme Court ruling that he says doesn’t have any impact on Kansas because no one here is performing partial birth abortions anyway. Well, perhaps that’s because 9 years ago the legislature passed a law that said all partial birth abortion procedures had to be reported and could only be done to save the life of the mother. Since no late term abortions are done in Kansas to save the life of the mother[1], it only stands to reason that as soon as this reporting was required, abortion providers quit performing this procedure. Don’t misunderstand, late term abortions are still being done, but the practitioner kills the child before labor begins so the procedure no longer falls under the partial birth abortion portion of the law.

So, having learned almost nothing from the A.G.’s office, we moved on to hearing from the Kansas Department of Health and Environment. This is the agency that receives the reporting forms from physicians who perform abortions. Of interest to the legislators was the portion of the reporting form that requires the doctor to state the reason for the abortion. In all cases past 22 weeks, when the fetus is considered viable, the person performing the abortion has to do two things: they must state the reason the abortion is needed and they must have a second opinion or referral from a non-affiliated (financially or legally) doctor saying that yes, this procedure is needed. The only reasons acceptable under current Kansas law are life of the mother or continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman. So what are the reasons abortions are being done? No one knows. In answering this question, doctors have simply been restating the law (“the patient would suffer substantial and irreversible impairment of a major bodily function if she were forced to continue the pregnancy”[2]). Why? Well, KDHE says, we don’t have the authority to question what gets put on the forms; we just require that they leave nothing blank. That’s right, when asked again, the answer was, “It doesn’t matter what they write, just so long as the form has no blanks”.

So, maybe they pass on any questionable forms to one of the two agencies charged with enforcement, the Attorney General or the Kansas Board of Healing Arts. Nope. It’s not their job to do anything but compile statistics. Even though I knew this was their policy going into the meeting, hearing it said, over and over, was stunning.

So, next up is the Board of Healing Arts. Ah, now we’ll get somewhere, right? Well, they don’t get those forms that the KDHE compiles unless they request them and they don’t request them. Why? They only investigate cases when a specific charge is made against a physician. When that happens, they use the actual medical records to determine if the standard of care for the procedure was met. Anyone can turn in a concern to the Board but unless someone does, they don’t investigate doctors. They don’t have the resources to check out every procedure. Hmmm. When I see only 380 abortions in the 22-week and above category, I have to think it wouldn’t be unreasonable nor cost prohibitive to hire one or two investigators to review each case to ensure the law is being followed. We are talking about future citizens so the state has an interest in protecting them no matter what one’s personal thoughts are on the morality of abortion.

So, if you’ve stayed with me this far, you’re probably wondering, what do we do with this information? I am as baffled as you. What good are laws that aren’t enforced? If no one is looking, how can we know if the law is being followed or not? It will be interesting to see what our legislators propose be done to get the agencies to start enforcing the laws they write.

Meanwhile, the hearings continue next week on Thursday & Friday, (Sept 6-7) 9 am – 5 pm (with a break for lunch). I encourage you to come watch and listen if you can, even if it’s just for a couple of hours one morning or afternoon. You just might be as surprised at what you hear as I’ve been.

Charlotte Esau
Executive Director
Kansas Republican Assembly

[1] Go to the Kansas Department of Health and Environment Abortions in Kansas: Preliminary Reports webpage; look at any year’s Data Summary. In 2006 on page 9 of the report, it shows that no abortions were performed on a viable fetus to save the life of the mother. All viable fetus abortions were reportedly done to prevent substantial and irreversible impairment of a major bodily function.

[2] Ibid. See question 16a and 16b. If 16a is yes, 16b should state the reason.