Attorneys For Abortion Provider Tiller File Motion Asking For Change Of Presiding Judge

Main Category: Litigation / Medical Malpractice
Also Included In: Abortion;  Women's Health / Gynecology
Article Date: 17 Aug 2007 - 12:00 PDT

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Attorneys representing Kansas abortion provider George Tiller -- who has been charged with 19 misdemeanors for allegedly violating a state law that requires an independent, consulting physician to approve some late-term abortions -- filed a motion Monday asking that the presiding judge in his case be changed, the AP/Lawrence Journal-World reports (Hegeman, AP/Lawrence Journal-World, 8/14).

State Attorney General Paul Morrison (D) in June filed charges alleging that Tiller, who owns Women's Health Care Services in Wichita, Kan., received a second opinion from physician Ann Kristin Neuhaus before performing 19 late-term abortions in 2003. Morrison said Neuhaus had financial ties with Tiller. A 1998 Kansas law says that before an abortion of a fetus of 21 weeks' gestation or more, two physicians must determine if continuation of a pregnancy will lead to death or "substantial and irreversible" harm to a "major bodily function." The consulting physician agreeing on the necessity of a late-term abortion cannot have legal or financial ties to the abortion provider.

Tillers' attorneys have entered a not guilty plea to the alleged misdemeanors and filed a motion to dismiss the charges. In the motion, his attorneys argued that the provision requiring two or more doctors to sign off on late-term abortions is unconstitutional because it is vague, it violates a woman's right to obtain an abortion as outlined in previous court decisions, and it places an undue burden on a physician's right to practice medicine. If convicted, Tiller could face up to one year in jail and a $2,500 fine for each of the 19 misdemeanor charges.

Judge Assignment
Sedgwick County, Kan., Chief Criminal Judge Gregory Waller on Friday assigned Tiller's case to Judge Anthony Powell, who served as a Republican state legislator from 1995 to 2002. Powell voted regularly for restrictions on abortion laws, including a 1998 law restricting late-term abortions. Powell in 1998 said Tiller was "defying legal and moral authority" by performing late-term abortions.

Powell on Friday during a hearing for the case said his judgment would not be affected. He also asked attorneys if they objected to his appointment. Tiller attorney Lee Thompson said, "We trust the court's judgment in that regard" (Kaiser Daily Women's Health Policy Report, 8/13). Defense attorney Laura Shaneyfelt on Monday said that Thompson's comments at the hearing were about whether Powell should allow amicus briefs to be filed, not about Powell's appointment. She also said Thompson meant that he trusted Powell not to be influenced significantly by a brief filed on behalf of his former legislative colleagues.

Thompson on Monday declined to comment on the motion, adding, "Kansas law prohibits us from stating the grounds in the initial motion." Morrison also declined to comment on the defense motion, Morrison's spokesperson, Frances Gorman, said, adding that prosecutors have no current plans to ask for Powell's removal. Powell did not return a message for comment on the motion, the AP/Journal-World reports (AP/Lawrence Journal-World, 8/14).

Related Editorial
Although Powell is capable of "putting aside his personal and political views" and ruling "on the merits" of Tiller's case, his "high-profile antiabortion past makes him the wrong person to sit in judgment" and "[h]e should recuse himself," a Wichita Eagle editorial says.

According to the editorial, Powell says his previous statements and legislative past are "irrelevant" to his role as a judge. "Normally, that might be true," the editorial says, adding, "But other factors here are more personal and compromising: The legislation that Powell helped craft specifically targeted Tiller and his clinic. And Powell made negative statements at the time directed at Tiller, who is now the defendant in his court."

"Powell should recognize these obvious problems of perception and remove himself from the case," the editorial says, concluding that the "overriding concern here should not be to give Powell the benefit of the doubt but to give Tiller a fair trial" (Wichita Eagle, 8/14).

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