The Associated Press reported last week that Sedwick County (Kansas) District Judge Clark Owens declared a state abortion law Constitutional 10 years after its enactment, thus depriving Wichita late-term abortionist George Tiller of a defense in his pending criminal trial. The well-connected, church-going abortionist is a major contributor to Kansas political campaigns, and has emerged as something of a kingmaker there.
Judge Rules Kansas Abortion Statute Constitutional, Denies Request To Dismiss Case Against Late-term Abortionist Tiller
(AP) District Judge Clark Owens ruled Monday 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.
Owens also denied a defense motion Tuesday regarding the number of jurors who will hear the case, according to the Wichita Eagle. State law limits juries in misdemeanor trials to six members, but Tiller's attorneys had requested 12.
Although no Kansas case has directly addressed the issue of six-person juries, Owens said 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.
Ashley Anstaett, a spokesperson for the attorney general's office, said Monday that prosecutors will move forward with the criminal case.
Owens set the trial date for the case for March 16, 2009.
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.
"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. "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 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.
"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."
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