Judge Rules Kansas Abortion Statute Constitutional, Denies Request To Dismiss Case Against Tiller

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 31 Jul 2008 - 7:00 PDT

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Sedgwick County, Kan., District Judge Clark Owens on Monday ruled that a state law requiring an independent, consulting physician to approve some abortions after 21 weeks' gestation does not violate the U.S. Constitution or the Kansas Constitution, the AP/Wichita Eagle reports. Subsequently, Owens also denied a motion to dismiss a criminal case against abortion provider George Tiller.

Tiller is being charged by state Attorney General Stephen Six (D) with 19 misdemeanors for allegedly violating the state law. The law requires two physicians, without financial or legal ties, to agree that if a pregnancy continues, the pregnant woman will die or face "substantial and irreversible" harm to a "major bodily function." Prosecutors have accused Tiller of having an illegal financial arrangement with physician Ann Kristin Neuhaus, who provided second opinions on abortions he conducted in 2003.

Tiller's attorneys argued 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 law is unconstitutionally vague. Tiller's attorneys also argued that it violates the right to travel because of the requirement a woman be seen by two separate physicians in Kansas. In a 35-page decision, Owens upheld the statute against each of the challenges. "Abortion jurisprudence in this country has been going through an evolutionary process since Roe v. Wade in 1973," Owens wrote, adding that the Kansas law survives challenges when weighed against previous interpretations (Hegeman, AP/Kansas City Star, 7/28).

Owens on Tuesday denied a defense motion regarding the number of jurors who will hear the case, the AP/Wichita Eagle reports. State law limits juries in misdemeanor trials to six members, but Tiller's attorneys had requested 12. Owens said that although Kansas does not have a case that has directly addressed the issue of six-person juries, a ruling by the U.S. Supreme Court in a Florida case was a factor in his decision. "There is no need to interpret the Kansas Constitution any differently than what the Supreme Court interpreted the U.S. Constitution," Owens said (Hegeman, AP/Wichita Eagle, 7/29). Ashley Anstaett, a spokesperson for Six's office, on Monday said that prosecutors will move forward with the criminal case (AP/Kansas City Star, 7/28). Owens set the trial date for the case for March 16, 2009 (AP/Wichita Eagle, 7/29).

Reaction

Dan Monnat, one of Tiller's lawyers, said, "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." He added, "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 Kansans for Life, said the ruling is good news because Neuhaus was not independent of Tiller. "I think the court has made a correct decision," Culp said, adding, "There was no doubt in our minds that the law was constitutional, but you have to depend on judges to interpret these things." Culp noted that Owens' decision shows that the 1998 law is valid, with "fail-safes" in place to prevent unwarranted late-term abortions, if officials will enforce them. Troy Newman, president of the antiabortion group Operation Rescue, said that the ruling "vindicates our efforts to bring Tiller to justice." He added, "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."

According to Monnat, abortion-rights opponents have been trying to intimidate and threaten doctors in Wichita who provide the required second opinion. "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, adding, "Tiller looks forward to having his day in court" (AP/Kansas City Star, 7/28).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.

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