Judge Upholds Constitutionality of Abortion Law, Clears Way for Tiller Trial
A Sedgwick County judge ruled Monday that the Kansas abortion statute is constitutional, denying a defense motion to dismiss a criminal case brought against one of the nation's few late-term abortion providers.
The 35-page decision handed down by Sedgwick County District Judge Clark Owens spurns several challenges to the statute under both the U.S. Constitution and the Kansas Constitution brought by defense attorneys for Dr. George Tiller.
"Abortion jurisprudence in this country has been going through an evolutionary process since Roe V. Wade in 1973," Owens wrote, adding that in light of all the interpretations, the statute survives all the constitutional challenges.
Former Kansas Attorney General Paul Morrison filed 19 misdemeanor charges against Tiller in June 2007, alleging he broke a 1998 state law requiring that a second, independent Kansas physician sign off on late-term abortions of viable fetuses. Two doctors, without financial or legal ties, must conclude that if the pregnancy continues, the mother will die or face "substantial and irreversible" harm to "a major bodily function," which has been interpreted to include mental health.
Tiller relied on Dr. Ann Kristin Neuhaus, of Nortonville, for his second opinion on abortions in 2003, and she had a financial relationship with him that is against the law.
Tiller's attorneys contend that the law creates an unconstitutional burden on a physician's right to practice medicine and a woman's right to obtain an abortion. They also argued that the Kansas law was unconstitutionally vague. His defense attorneys also challenged it on the basis of violating a right to travel because of the requirement a woman be seen by two separate physicians in Kansas.
In a detailed decision citing extensive case law, Owens upheld the Kansas statute against each of those challenges. His decision had been pending since a November hearing on the matter.
Ashley Anstaett, spokeswoman for the Kansas Attorney General's office, said Monday after the decision was handed down that prosecutors will move forward with the criminal case.
The decision came as a disappointment for Tiller's defense team, but was hailed by abortion opponents.
"We certainly respect the decision of the judge, but we hasten to point out that the decision on this one legal point does nothing to affect Dr. Tiller's innocence of the very technical charge still set for jury trial," said Dan Monnat, one of Tiller's defense lawyers. "Of course, Dr. Tiller is disappointed that the court did not take this opportunity to end his political prosecution and clear the huge roadblock that lies in the path of women who choose to exercise their right to get a lawful abortion in Kansas."
Mary Kay Culp, executive director of the anti-abortion group Kansans for Life, said the ruling is good news because Neuhaus wasn't independent of Tiller. She said Neuhaus made her living "rubber stamping late-term abortion approvals for Dr. Tiller."
"I think the court has made a correct decision," Culp said. "There was no doubt in our minds that the law was constitutional, but you have to depend on judges to interpret these things."
Culp said the judge's ruling shows that the 1998 law is a good one, with "fail-safes" in place to prevent unwarranted late-term abortions, if officials will enforce them.
"If ever anything needed to go to trial, this needed to go to trial," Culp said.
The decision also was hailed in Wichita by Operation Rescue, which has been mounting a campaign against doctors and businesses which that work with Tiller and his clinic.
"Today's ruling by Judge Owens vindicates our efforts to bring Tiller to justice," Operation Rescue President Troy Newman said in a news release. "All along, we knew that it wasn't the law that was faulty, but it was Tiller's interpretation of the law that was faulty. This gives us a glimmer of hope that we could eventually see some shred of justice."
Still pending before the judge is a defense motion regarding the number of jurors who will hear the case. State law limits juries in misdemeanor trials to six members, but Tiller's defense has requested 12. A status conference is scheduled for Tuesday, when a firm trial date is expected to be set.
In 2003, Attorney General Phill Kline, an anti-abortion Republican, began investigating Tiller's activities. He filed 30 misdemeanor criminal charges against the doctor in Sedgwick County in December 2006, only to see a judge dismiss them the next day for jurisdictional reasons.
Morrison later filed the 19 misdemeanor charges. Attorney General Steven Six inherited the case after Morrison stepped down amid a sexual scandal.
Monnat said abortion opponents have been trying to intimidate and threaten doctors in Wichita who provide the required second opinion.
"Dr. Tiller, however, will not be deterred by these people but rather will continue to work within the law as he has done for 30 years to help women get the health care they need and deserve, Monnat said. "Dr. Tiller looks forward to having his day in court."
Associated Press writer John Hanna in Topeka contributed to this report.
