by Matt Barr

Crying abortion

I'm generally sympathetic to arguments against Kansas Attorney General Phill Kline's insistence that

doctors, nurses, counselors, and all other care providers report -- as abuse -- any sexual interaction between teens under 16. Failure to report is a misdemeanor. Under Kline's view, professionals must report even when the sex is consensual, committed with partners their age, and where there is no suspicion of injury. The plaintiffs who filed suit -- a group of doctors, nurses, and counselors -- contend that under Kline's policy, even evidence of teen necking must be reported.

Until you run to court, of course. What exactly is broken here about the lawmaking process in Kansas that we need a court to jump in and hold it unconstitutional to make doctors, nurses and counselors do too much paperwork? But I'll spare you this time.

(Except to say this: The complaint in the case alleges that conflicting interpretations of the law make it too hard for a health care provider to know whether they're in compliance or not, and that if Kline is right "adolescents under the age of 16 in Kansas will be deprived of their right under the Due Process Clause to maintain the confidentiality of private information about their sexual behavior," which in today's day and age has a much better chance of working in federal court than the paperwork thing I made up.)

Instead, I write to note something of an inconsistency in the predictable Dahlia Lithwick harangue linked above. Follow along:

In this case, [Kline] says he needs to be advised of every breast that's been fondled around the state because each such incident is a crime, yet the vast majority of such fondlings harm no one, as he is well aware. As one expert testified Monday, wading through those thousands of benign reports will make the genuine abuse cases harder to pursue.

Both legitimate and persuasive arguments against this policy, faithfully (I hope) restated as: Health care providers shold be trusted to recognize that most consensual proto-sexual activity between minors is not abuse. On, then:

On Tuesday Kline told an adoring Bill O'Reilly that the real target of the law is (surprise!) abortion clinics: "I get those [abuse] reports from medical offices, from hospitals, from doctor's offices, virtually every other health care provider. I do not get them from the abortion clinics." Indeed, as his 2003 opinion expressly states, its focus in broadening the rules was almost exclusively on "abortion providers." Is there something about abortion clinics that makes them less likely to report abuse?

Well, I guess, if Kline is right that he never gets reports from abortion providers. But let's distill Lithwick's point here to: This is a front to harass abortion providers. Moving on:

Kline takes the not-illogical position that since all consensual teen sex is criminal, all teen abortion records provide vital evidence of that crime. Why, then, doesn't he subpoena all hospital records for evidence of all teen births? Is it possible that he is less interested in pursuing the real crime of teen sex than the non-crime of abortion?

Excellent point. Except that if Kline is targeting abortion providers, how does insisting on evidence of sexual activity short of penetration accomplish that? Remember, the argument so far is that Kline is merely insisting on evidence of necking, petting and so on to single out abortion providers and obtain evidence about abortions performed in his state. How does this do that? If indeed all teen sex (under 16) is a crime, wouldn't it be more expeditious to more vigorously pursue evidence of actual sex?

Let's go to the transcript (courtesy Nexis). On O'Reilly's show, here is the exchange Lithwick excerpts from in context:

O'REILLY: Right now -- right now in Kansas, are you getting reports from any abortion clinics that tell you, "We have a 12-year-old girl here and, you know, she obviously has violated the law." Do you get those reports at all?

KLINE: I get those reports from medical offices, from hospitals, from doctor's offices, virtually every other health care provider. I do not get them from the abortion clinics.

The question was "do abortion clinics report underage sex," in other words; it's not as though Kline slipped up and accidentally volunteered that the whole thing is a smokescreen to go after abortion clinics.

Lithwick isn't helping anyone but her NPR choir come to the realization that this is a ridiculous waste of a law ("uncommonly silly," as some might say) by crying abortion. For all I know Kline's goal may be to stick it to his state's five abortion clinics, but if so, he's an idiot, because forcing everyone to report "snogging" doesn't help do that. But even if it is, aren't there several more important reasons why this is stupid than it might negatively impact Kansas' abortion industry?

Lithwick looks at this issue and sees abortion in it, shich she mistakes for Kline's problem instead of her own.

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