A Death in Wichita (27 page)

The inside of Dr. Warren Hern’s Boulder office held the slightly acrid scent of medicine being practiced and the sense of being in a near-total female environment, women coming and going in the halls carrying files, women employees consulting with women patients about reproductive questions, women eating sandwiches with women over lunch in a back room and talking about women’s issues. The walls were lined with artistic photographs Dr. Hern had taken on his travels around the globe, many from impoverished Third World countries with little or no medical care. The quiet, gentle atmosphere within the office stood in sharp contrast to the locked doors, bulletproof glass, and barred windows that had turned the exterior of this abortion clinic into a fortress. One Monday in early November 2009, as the health care struggle intensified two thousand miles to the east in Washington, I drove to Boulder to meet with Dr. Hern. Since Tiller’s death, he’d become more of a focal point for abortion foes. Protesters had just camped outside his office for forty days and nights, and as we spoke in one of his waiting rooms, Hern said that he couldn’t walk out the clinic’s front door because “I’m afraid they’ll shoot me.” He also couldn’t walk across the street to another medical facility to get paperwork on some of his patients. He couldn’t drive his car into the lot next to his office, where visitors parked, because “that’s how they shot George the first time, when he was behind the wheel.”

He led me out a back door and through a security gate. Walking with him in the streets of Boulder, I was keenly aware that until last May only three high-profile, late-term abortion doctors remained in the United States—Drs. Tiller, Hern, and Carhart—and only two were left. As we passed through a crosswalk, he warily looked in all directions and over his shoulder.

“A local Catholic church,” he said, “supports the protesters who came to my office during those forty days. They should lose their tax-exempt status for harassing me.”

We went to a nearby restaurant with an open-air patio and he wanted to sit outside on this warm, magnificent Indian summer afternoon. Facing the street, he ordered a glass of wine, as he had little planned for the rest of the afternoon, and we both took in the towering view of Boulder’s renowned Flatiron Mountains, rising majestically reddish in the perfectly clean autumn sunlight. Dr. Hern looked as if he needed to unwind from the recent siege at his office—if not the past thirty-six years.

Like Tiller, he’d never intended to be involved with reproductive medicine or abortion, but after helping a few pregnant women early in his career and experiencing the enormity of their relief and gratitude, he’d been drawn into the field. When Boulder decided to open a clinic soon after
Roe v. Wade
, he was the natural choice to run it and had been doing this work ever since. Now seventy and an avid skier, he was fit and tanned, with a powerful-looking torso and arms, but his strongest feature was his face. He had sad eyes, a hawk’s nose, grayish hair flopping down across his forehead, and cheekbones worthy of the American pioneers who’d come west and survived endless summers and winters on the prairie. Born in Kansas, he’d moved to Colorado at age three and made it his home.

Raising his glass of wine, he recalled how he and Tiller had talked on the phone every week and skied together in the Rockies, building a friendship despite the very different ways they saw the world. With an irreverent smile, Hern said that when his own tightly knit group of physicians got together, they liked to tell stories about prominent Republican anti-abortion politicians who secretly paid for their wives or mistresses to end their pregnancies.

“We’re in a position to know about these things,” he said, “but George never did this with us. Gossip wasn’t his style. He was committed to helping people, even those who totally opposed him. He was much more tolerant than I am. Battle with me and I’ll fight back. George was a very polite and considerate man, the model of Christian forbearance.”

A few years ago, Gail and Robert Anderson, a devout Catholic couple in Baton Rouge, Louisiana, had learned that cystic masses were covering their unborn baby’s left lung and building up pressure on the undeveloped heart. Gail was twenty-seven weeks pregnant and would have to deliver her child through a C-section. Under the very best scenarios, the infant would be on life-support machines for months until the suffocated heart had been repaired and the masses removed from the lung. Women from Gail’s parish, with whom she’d regularly protested outside an abortion clinic in Metairie, Louisiana, came to the Andersons and tried to talk them into keeping their baby. After great prayer and anguish, they decided not to and contacted Dr. Tiller. The car ride from Baton Rouge to Wichita was the longest of their lives.

When they arrived in Kansas, Tiller prayed with them about their decision and explained how, if they chose to go forward with him, they could memorialize their child. The compassion they’d hoped to find at their church and among Gail’s women friends was offered them by the Wichita physician. On the morning of the operation at WHCS, they were surrounded by adult protesters who begged Gail not to get an abortion, and by children holding a model of a fetus. The demonstrators approached the Andersons and called them murderers, declaring that God would not save their souls.

“
Roe v. Wade
threatened our patriarchal society at the deepest cultural levels,” Dr. Hern said over lunch, “and set off a reaction that’s never stopped. In terms of biology, we’re hard-wired to protect young, vulnerable creatures, like babies and small animals. Abortion hooks into this wiring and creates certain feelings and they’ve been used to great effect by the Republican Party. It started with Reagan’s election as president in 1980, when the GOP realized this was the issue that could bring together the political right and the religious right. They’ve used it ever since to get people to the polls and to get political power. That’s what the fight over abortion is all about.”

His cell phone rang and he answered it. While he listened, he looked across the table at me and raised his index finger, as if he were hearing something relevant to our discussion.

A reporter from Wichita was calling to say that Roeder had just contacted the Associated Press and admitted on the record that he’d shot Tiller inside his church.

“There is a distinction between killing and murdering,” Roeder told the AP. “I don’t like the accusation of murder whatsoever, because when you protect innocent life, that’s not murder.”

After giving the journalist a few quotes about Roeder’s confession, Hern hung up and told me that the man accused of threatening his own family last June had entered a guilty plea and would soon have a sentencing hearing.

“I’ll speak at this hearing,” he said, “and tell him exactly what I think of him.”

He was silent for a while. The call from Wichita had visibly affected him and he stared past me, up toward the mountains.

“George’s murder,” he said, “is the worst thing that’s ever happened to the pro-choice movement.”

He fell silent again and I asked him how he dealt with his own sense of vulnerability, especially since Tiller’s death.

He set his glass on the table, raised his hands to his cheeks, and lowered his head. Tears were forming in the wings of his eyes and his shoulders slumped forward, as if being pressed on by a considerable weight. For a while, I thought he wasn’t going to respond.

“What can I say?” he asked. “I have a lot of things left to do and so much I want to do. I just want them to stop bothering me, but they won’t. It ruins your life. For a long time, I felt that these people had irrevocably ruined my life. The purpose of what they do is to create terror in others, and they’re very effective at this. They create terror in me. For a decade I was depressed because I couldn’t have a normal life. Why would any woman want to be with me when I was under all these threats?”

The tears were falling and choking off his words. He covered his face and sobbed, determined to keep talking.

“Meeting my wife…in recent years…has made…a tremendous difference. It’s made me…feel part of…the human family again.”

I glanced around at the people passing by, wondering who they were and if they were watching Dr. Hern.

His crying subsided and he lowered his hands back to the table.

“Our body politic,” he said, “is like a rotting corpse—repugnant, but still interesting. We’re setting ourselves back so far from where we could be. Health care reform is something that can actually help people, the citizens of our country. Isn’t that what government is supposed to do? Isn’t that the goal?”

I didn’t answer, because I knew he wasn’t finished.

He wiped at his eyes with a napkin. “From O’Reilly on down, it’s the same horseshit. When you deny reality, people get hurt.”

One of Roeder’s attorneys, Steve Osburn, the chief public defender of Sedgwick County, was stunned to learn of his client’s confession to the Associated Press and said he’d have to speak with the defendant about this (Osburn was even more stunned that the inmate had been the one getting in touch with the media). Roeder then did something just as confounding by announcing that his other lawyer, Mark Rudy, had given him the “green light” to speak about these matters to the press. Both attorneys were scrambling to respond to Roeder’s actions and to hold their case together. During the prisoner’s call to the AP, he said that he hoped to use the “necessity defense” at trial to argue that by shooting Dr. Tiller he was serving the greater good of protecting unborn children. One provision of this defense was that when taking such a step, a killer had to be facing an “imminent threat.” What imminent threat, many wondered, did Tiller pose to Roeder that morning as an usher inside his church?

The day the defendant phoned the AP, November 9, 2009, a group of twenty-one anti-abortionists nationwide, including Roeder himself, released a new “Defensive Action Statement.”

“We, the undersigned,” it read, “declare the justice of taking all godly action necessary to defend innocent human life including the use of force.”

The statement was signed by Eric Rudolph, James Kopp, and Shelley Shannon, all in prison for targeting abortion doctors. On November 10, Osburn surprised his client by telling
The Wichita Eagle
that there was no such thing as a necessity defense under Kansas law—or American law, as far as he knew; he and Rudy would be using a regular first-degree-murder defense in this case, whatever that might be now that Roeder had publicly taken credit for gunning down Dr. Tiller at his church. Osburn did, however, want the judge to move the trial out of Wichita because of all the local publicity, and a change-of-venue hearing was scheduled for December.

Following Roeder’s confession, the National Organization for Women again asked the Obama administration and the Justice Department to treat his assassination of Tiller as domestic terrorism, to employ all available anti-terrorism laws to prosecute the killer, and to broaden the investigation to those who might have aided or financed him. NOW also commented on the legal strategy Roeder was promoting in the media.

“The absurdity of his defense is insulting and dangerous to women,” said NOW’s president, Terry O’Neill, “but it also reveals his terrorist methodology using murder to accomplish his political goals. It is precisely this unrepentant domestic terrorism—and those who fund it—that must be stopped or else we will see more clinic violence and people will be killed. We urge the administration to freeze the assets of people or organizations, domestic and international, who helped fund and supported Roeder’s anti-choice activities.”

With these issues playing out behind closed doors at the Department of Justice, the foundation was being laid for an all-out legal battle in Wichita.

After Roeder had confessed, the DA’s office filed court papers seeking to ban his use of the necessity defense. Osburn then changed course and filed his own documents stating that his client had the “absolute right” to present his case that the murder was justified to stop abortion. As part of its strategy, the defense sought Tiller’s appointment books, records of scheduled abortion procedures, and related documents for the period May 1 to June 30, 2009, with the apparent idea of putting the doctor on trial posthumously for the operations he’d planned during these two months. The defense, in spite of Roeder’s penchant for sabotaging his case by talking with the media, was finding its voice.

“For the Court to grant the State’s motion to prohibit ‘any evidence’ in support of the necessity defense would be premature, and contrary to Kansas law,” the public defenders wrote to Judge Wilbert. The state’s motion was “nothing more than an attempt to force the defense to reveal their defense strategy and forgo what may be a valid defense.”

The prosecution had cited a criminal trespass case at an abortion clinic, in which the Kansas Supreme Court ruled that to allow personal beliefs to justify criminal activity and interrupt services at the clinic would “not only lead to chaos but would be tantamount to sanctioning anarchy.”

The defense contended that Roeder’s situation was different because trespassing at a clinic, unlike murder, did not actually stop the practice of abortion.

“It is inconclusive whether the lives of the unborn were spared as a result of the act of criminal trespass,” they wrote. But in Roeder’s case, “the result of the alleged murder resulted in the termination of abortions being performed in the City of Wichita by the victim, Dr. George Tiller.”

In ruling on the trespassing case, the state Supreme Court had sidestepped the fundamental legal issue by saying that whether or not “the necessity defense should be adopted or recognized in Kansas may best be left for another day.”

That day had now arrived, as a critical judicial decision loomed ahead, and Judge Wilbert would have to confront the necessity-defense question straight on in his courtroom. This made him the most important figure at the trial, since the facts were not in dispute: Roeder had killed Dr. Tiller to end abortion in Wichita. But what were the judge’s own views on abortion? A practicing Catholic, a Republican, and a married father of two, he’d been appointed to the bench in 1995, but had faced no opposition in his first three elections. In 2008, he was finally opposed and won by only 471 votes out of almost 166,000 cast. That year he sought the endorsement of Kansans for Life, and the KFL political action committee supported him in the race, but didn’t directly contribute to his campaign. In September 2008, Wilbert paid KFL seventy-five dollars for his name to be listed in an ad in its quarterly newsletter, containing articles entitled “Update on Tiller Charges” and “Planned Parenthood—a Snake in the Grass!” The ad holding Wilbert’s name read, “The Kansans for Life PAC urges you to vote for, work for and pray for the following pro-life candidates.” As a member of Wichita’s St. Thomas Aquinas Church, Judge Wilbert was also a lay minister.

He’d never tried a case this high-profile before and was facing some very sticky legal issues. Should a jury be allowed to consider that Roeder’s actions were justified based on the necessity defense or was this a first-degree murder trial like any other? Should prospective jurors’ views on abortion be central to their ability to serve, or not serve, at this trial? To what extent should the lawyers be able to interrogate potential jurors about their religious or political convictions, and was it a given that every juror would tell them the truth? And what if, at the end of testimony, they decided to vote for Roeder’s acquittal regardless of the evidence, a practice known as jury nullification?

If Steve Osburn had initially seemed lukewarm about representing Roeder, his and Rudy’s involvement was growing stronger and more committed as the trial approached.

Maybe they could win, after all.