Kansas Supreme Court Checks Grand Jury's Power In Tiller Case

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 09 May 2008 - 8:00 PDT

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In a unanimous ruling Tuesday, the Kansas Supreme Court allowed a Sedgwick County, Kan., grand jury to continue its investigation of abortion provider George Tiller but limited its authority to subpoena the records of Tiller's patients, the AP/USA Today reports. The court also ruled against overturning a law that allows state residents to call for a grand jury investigation. Kansas is one of only six states that allow citizens to petition to form grand juries.

The court's ruling also refused to dismiss subpoenas that were served to Tiller and Attorney General Stephen Six (D). According to the AP/USA Today, the high court set new standards that the Sedgwick County District Court must follow when deciding whether to enforce the subpoenas, whether they are too broad, and whether complying would "create too great a burden" for Tiller and his Wichita clinic, Women's Health Care Services. The state Supreme Court also ruled that the district court must decide whether the subpoenas represent harassment. The justices wrote that Sedgwick County District Court Chief Judge Michael Corrigan must protect patients' privacy and allow Tiller's clinic to remove information identifying patients and that the district court can only share patient information with the grand jury.

Supreme Court Justice Lee Johnson wrote, "The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass," adding, "If so, the court should quash the subpoenas." Tiller attorney Lee Thompson said that although he believes the grand jury law is unconstitutional, he is pleased that the court set guidelines. "It's a very good decision recognizing that the grand jury does not have unfettered powers and the grand jury subpoenas require a degree of judicial oversight," Thompson said (Hanna, AP/USA Today, 5/7).

The grand jury is investigating whether Tiller violated Kansas law, which allows women to abort a fetus after 21 weeks' gestation only if two doctors certify that continuing the pregnancy could kill the woman or cause "substantial and irreversible impairment of a major bodily function." The Supreme Court requires that a woman's mental, as well as physical, health be taken into account.

The grand jury served Tiller's clinic with a subpoena asking the clinic to provide 2,000 medical records of women who sought or obtained abortions after their 21st week of pregnancy. Six was served with two subpoenas; one seeks the records of 60 women from Tiller's clinic, and the other seeks copies of testimony provided to the attorney general's office by a doctor who provided a second opinion for some of Tiller's patients who obtained abortions after their 21st week of pregnancy (Daily Women's Health Policy Report, 2/8).

The ruling is available online.

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