Bill O'Reilly follows Phill Kline down the rabbit hole to an upside-down world where facts are created to confirm belief, abortion dogma appears holier than the Bible, and lawlessness is justifiable. It destroyed Phill's career, and it could do the same for Bill.
Bill O'Reilly's crusade against Dr. Tiller is unlike his others: this one is going to have serious and permanent ramifications. This diary is not about being pro-life or pro-choice, but about those who prefer lawlessness over order and dogma over discourse. Unfortunately, O'Reilly built his crusade and drew his "facts" from extremists who preferred the first. A man he slandered has now fallen. What follows are parts of this sad story you didn't know, and why Bill probably wishes he never met Phill Kline.
Bill O'Reilly has perhaps never been more vulnerable; with civil suits likely, he's already started to defend himself in the court of public opinion. His written and spoken words, verifiably libelous against Dr. Tiller and his family, were not responsibly researched or communicated and bordered on inciting violence. They certainly incited intimidation. His "outing" of Tiller patients, if they ever came forward, could bite Fox News big time. Whether Scott Roeder’s defense team will use the "O’Reilly defense" is more speculative, but his team did say it was a serious option.
Mr. O’Reilly is apparently preempting any court-room appearances by voraciously defending himself in public-- to a degree beyond an equal and opposite reaction to his critics. Perhaps admitting that he misreported the facts or did not responsibly vet his sources opens him to liability. Mr. O’Reilly has more at stake than Salon.com Editor Joan Walsh—and his legal team is probably helping with his on-air defense. But Ms. Walsh put up a good fight against O’Reilly, particularly in the last few minutes.
At his own peril, Bill has kept the controversy going by continuing to parrot the line of a man who is equally dishonest: Former Kansas Attorney General, Phill Kline, who was sanctioned by the Kansas Supreme Court and is being investigated in part because of his tactics against Dr. Tiller. Kline’s line—that Tiller performed abortions on healthy babies for the most trivial reasons, and that he did so illegally—has been unequivocally proven false by a combination of court rulings, verifiable testimony from referring genetic counselors and doctors, and the lack of prosecution demonstrating triviality in court.
Despite Kline's half-dozen attempts to prove it, Dr. Tiller never performed an illegal late-term abortion, which Kansas law stipulates must only be undertaken to prevent serious and irreversible (i.e. non-trivial) harm to the mother's mental or physical health. Dr. Tiller never even accepted late-term patients without their doctor's referral, who also determined a serious need. He was further required to find two concurring, independent medical opinions in each and every case.
In responding to Kline’s conduct of abortion law enforcement, the Kansas Supreme Court recorded in their opinion that Kline:
exhibits little, if any, respect for the authority of this court or for his responsibility to it and to the rule of law it husbands... It is plain he is interested in the pursuit of justice only as he chooses to define it...he was demonstrably ignorant, evasive, and incomplete in his sworn written responses.
Kline not only showed a propensity for being dogmatic and dishonest (even in direct defiance of the court), he represented extreme and unbalanced views that Bill now syndicates to millions of unsuspecting Americans, some of them impressionable and desperate. Kline was deeply involved in pro-life organizations from the mainstream to the extreme, and leveraged their resources to build his cases. At least one of these, Life Dynamics, supports justifiable homicide as a legal defense for abortion doctor killers. Kline built a case against Dr. Tiller inspired by allegations from Life Dynamics, and his office sought to retain one of their attorneys for the case. Thus Mr. O’Reilly maintains only one degree of separation from an extremist group that supports justifiable homicide as a legal defense, and he has taken on the cause of a D.A. who had them on speed-dial.
I’m not claiming O’Reilly believes in justifiable homicide, but he has dialed up the rhetoric and acted as a voice for groups that do. The Army of God, a terrorist organization, and Life Dynamics, who hosts the website American Death Camps, popularized the non-sensical analogy between Dr. Tiller and Hitler among extremists long before O'Reilly broadcasted it to more mainstream audiences. O'Reilly's rhetoric, comparing Tiller to the Nazis, is a page from the playbook of groups that call for violence against abortion doctors, judges, and pro-choice politicians. I'm amazed that O'Reilly borrows "Nuremberg" rhetoric from websites that not only condone terrorism but contain slurs against the Jewish people themselves.
O'Reilly's "key witness" pursued Dr. Tiller and other abortion providers as if the public treasury was the private legal fund for Operation Rescue or the National Right-to-Life. A Kansas Supreme Court opinion (January 2009) noted that Kline worked closely with pro-life organizations to form his cases and may have improperly provided them with sealed patient records in the process [you may skip this long quote if you don't care for the details]:
Kline...shared information from the redacted patient records and other inquisition results with at least three potential medical experts, including Dr. Richard Gilmartin...and Dr. Paul McHugh, a psychiatrist from Baltimore. Rucker had obtained Gilmartin's name from a representative of Kansans for Life; he would later testify that he may have told the representative about the nature of the records. Kline had obtained McHugh's name from a representative of Women Influencing the Nation. Both Kansans for Life and Women Influencing the Nation are anti-abortion advocacy organizations.
[The] other documents included pregnancy termination information obtained from the Kansas Department of Health and Environment (KDHE) which, when cross-referenced to patient records and/or other sources mined by Kline and his subordinates during the inquisition, enabled Kline to identify patients by name.
...[Attorney General] Morrison's office issued a letter to McHugh to prevent his public discussion of the information shared with him by Kline and Kline's subordinates. McHugh nevertheless submitted to an interview about his review of the patient records and the information they contained, a video recording of which has been published electronically... Judge Anderson would testify that a parent of a patient described in the redacted records might be able to identify his or her daughter from the information disclosed by McHugh in the interview.
Kline has demonstrated...disingenuous and possibly orchestrated confusion on his status vis a vis McHugh. After Kline was defeated in the Attorney General's race but before he decamped to Johnson County, he embraced McHugh long enough to ensure that McHugh obtained redacted copies of patient records and other items that could enable patient identification. Kline later disavowed any ability to control McHugh's behavior when McHugh discussed the contents of the records in an interview sponsored by an anti-abortion advocacy group. Kline's behavior told a different story. He met with McHugh shortly before McHugh's interview and listened to the interview as it was being conducted...Still later, Kline personally typed an overinclusive affidavit for McHugh... he contributed without reason to the detail ultimately revealed by McHugh and others.
Pro-life politics so deeply influenced the prosecution of Kline’s cases that his subordinates worried his increasingly Machiavellian approach would backfire: "My personal opinion was they were willing to do whatever it takes to get a conviction against an abortion provider, up to and including breaking the law," Jared Reed, formed Kline investigator, told the court. Reed recently sought immunity from then-newly elected Kansas Attorney General Paul Morrison. "[I]f you continue down one path to help the cause, you actually hurt the cause," he continued. This is a disturbing pattern. In Phill Kline’s mind as in others, breaking the law to bring abortion doctors to "justice" was sometimes justifiable.
Dr. Tiller’s last trial was directly tied to his murder via Scott Roeder’s presence in the courtroom. Kline essentially led a modern-day witch hunt enabled by an 1887 Kansas law, allowing anyone who draws the ire of a mob (2% of voters in a county) to be investigated by a grand jury. Kansans for Life delivered a petition with 7,857 signatures, asking the district court in Sedgwick County to crank up a grand jury to investigate Dr. Tiller.
Dr. Tiller was the defendant in a half-dozen cases in the past decade, and none had ever produced any court-recognized evidence of wrong-doing. In this, the last such case before his assassination, Dr. Tiller was acquitted on all 19 counts in under 45 minutes. Jurors, fearing their own lives, were escorted under heavy security out of the back doors while Dr. Tiller remained surrounded by a barricade of policemen; as reported in the Kansas City Star, rumors had swirled that someone intended to douse him with battery acid.
Of course there was also Dr. Tiller's future killer, Scott Roeder, looking on in disgust. To him and many others in the courtroom, justice had not been served. Operation Rescue and even mainstream pro-life publications wrote about the injustice in press releases. The court’s opinion was not valid. "Justice denied," was OR’s cry. Scott Roeder must have thought as Kline did, to a more extreme degree, that the ends would justify his means.
Kline did not evenly nor honestly pursue law enforcement, nor did he heed the parameters set by judges as he prosecuted his cases; in January of this year, he drew sanctions from the Kansas Supreme Court, which felt his actions in the handling of patient medical records were so despicable that they forwarded their complaints to the disciplinary board:
Despite Kline's repeated invocations of the importance of patient privacy, his conduct evidences little or no respect for it... His attitude and behavior are inexcusable, particularly for someone who purports to be a professional prosecutor. The known pattern of obstructive behavior prompting sanctions, standing alone, may be or become the subject of disciplinary or other actions; a copy of this opinion will be forwarded to the disciplinary administrator.
The Kansas Board for the Discipline of Attorneys opened an investigation in February, saying disbarment is a possibility.
Kline maintains, and Bill O'Reilly echoes, that every one of the 60 medical records he saw (0.1% of the alleged 60,000 late-term Tiller patients) represented trivial claims on the mental health of the mother-- a claim never corroborated by independent medical experts, never recognized by a court. They were also claims not recognized by Dr. Tiller's own personal ethics and the two independent doctors (who differed case-by-base) that were required by law to consent that the procedures were necessary. Even a court case, the last Dr. Tiller was forced to endure, determined that the additional opinions were in fact independent.
Yet O'Reilly advances pre- and post-assassination slander that these "records" not only prove that Dr. Tiller performed late-term abortions for "any and all reasons", which is illegal and for which Dr. Tiller was never charged, but that the 0.1% sample is actually representative of Dr. Tiller's work. Lawsuit.
What the responsible journalist would have done: Let's make the assumption that the records did raise questions, keeping in mind that they were within the limits of the law. Let's also assume Kline is an honest source, that he's not the anti-abortion Machiavelli his closest associates describe. The responsible journalist would ask: Were the 60 medical records Kline requested a randomly-selected, representative sample of Tiller’s patients? Did Kline provide the full records and not summaries or extracts, as court testimony shows he was known to create, to Dr. McHugh or O'Reilly? Can I trust Dr. McHugh, hand-picked by an anti-abortion group, to offer an independent expert opinion? Should I take an anti-abortion PR video featuring Dr. McHugh's interview as the truth, and then broadcast it on my show? Is it a good idea to adopt the rhetoric of the most violent sections of the anti-abortion movement as I report this story on cable's most-watched show?
O’Reilly carelessly assumes all of the above to be affirmative. He does not think to verify the facts Phill Kline wants him to believe—a man who works with anti-abortion extremists, who never won a case against Dr. Tiller, whose prosecutions related to abortion providers have been criticized by the highest court in Kansas. O'Reilly's "key witness" was so unpopular he was run out of the state by guys in his own party, and he is probably going to be disbarred.
O'Reilly negligently advances the falsehood that Dr. Tiller performed illegal procedures, even sometimes claiming he never performed them in valid cases when the mother’s health would be irreparably harmed. And he does so at his own peril, because O'Reilly's statements are verifiably false and libelous. Not only was there no wrongdoing, genetic counselors and referring doctors provide positive proof (in the press if they are brave and in their own records) that Dr. Tiller saw only dire cases. O’Reilly also contradicts himself, admitting he’d seen records indicating Tiller performed abortions on 10-years olds. Bill: How does pediatric rape, where carrying to term would cause obvious physical and psychological damage, constitute anything trivial?
Kline's sample was selected, selectively-analyzed, and selectively-quoted to improve his chances of winning in the courts of Kansas and public opinion (the real courts rebuked him for giving press conferences about sealed materials during the trials). He took the most extreme interpretations and actions to build his case, "up to and including breaking the law", and even then could not prove Dr. Tiller performed late-term abortions "for any and all reasons".
The answer to all of the above questions is a resounding "No". And I trust O’Reilly will re-investigate the matter fully to prevent further defamation, intended or not, proving he is in fact Fair and Balanced—letting the "folks decide". Because right now he is either a liar or sorely misinformed, incapable of seeking the truth. In the meantime, he could be defending himself in court on numerous fronts.
It's not clear whether O'Reilly (who claims an inside source) saw actual medical records or summaries created by Kline's team; the Kansas Supreme Court knows Kline was grossly negligent with the records but could not find enough evidence to prove he was the inside source. Could O'Reilly still be held liable for broadcasting the contents of patient records--and Dr. McHugh's interview--knowing these are court-sealed documents and that patient identities could be determined, even with names redacted? If Dr. Tiller's patients described on the show came forward, Fox News is suddenly going to feel very exposed. Patient privacy is a big deal on its own; it’s a huge deal when patients are targeted for intimidation and violence. If I heard my case described on Bill's show, I would contact my lawyer.
While we wait to see how the Roeder defense develops and how the Tiller family responds, I suggest anyone who doesn't support violent rhetoric begin boycotting companies who advertise with Mr. O'Reilly. O'Reilly has crossed a line in adopting rhetoric born from the justifiable homicide movement. He has become a powerful voice for extremists who have no respect for the law or the decisions of courts, including Prosecutor Phil Kline and his associates at Operation Rescue and Life Dynamics. Unfortunately, it has ended in a political assassination, dealing a blow to our democratic dialogues and the freedom that we enjoy to speak without fear of violent recrimination.
I welcome my diplomatic and intellectual friends on the anti-abortion side to speak out, specifically, against the Army of God, Life Dynamics, Operation Rescue, Phill Kline and Bill O'Reilly: their treacherous language and slanderous mistreatment of Dr. Tiller led to his murder; his killer spoke about and believed in the anarchic fantasy-land they created. I also welcome your opinions on making adoption more accessible (something we can all work together on) or on late-term abortions in the cases of fatal fetal anomaly or pediatric pelvis.
Progress, however you define it, begins with a common respect for the people you disagree with, for the facts, and for the law. With that common ground, we can debate and make decisions. Both sides depend on facts from professionals (the doctors, the geneticists) who will not provide information when it means they'll be held at gunpoint, or compared to Nazis on Bill O'Reilly's show. We are all more ignorant as a result. Bill O'Reilly isn't helping your cause, he's not helping the American cause. We are all the more ignorant for it.