HHS Nominee is Good News for Post-Viability and Teen Abortion Markets

The abortion industry can probably look forward to a mutually beneficial relationship with the Obama administration if the Senate confirms Kansas Gov. Kathleen Sebelius as Secretary of the Department of Health and Human Services. Sebelius will oversee an annual budget of $821 billion.

Sebelius vetoed bills in 2003 and 2005 that would have mandated the safety of abortion centers in Kansas, which were allegedly operating under medically dangerous conditions. In 2008 she vetoed a measure to enforce the state's parental notice law.

More recently, she vetoed a bill that would have required those doing late-term abortions to provide an explicit medical reason.

A nominal Catholic, she also vetoed another bill that would have required those doing post-viability abortions (that is, abortions after the point when the child is developed enough to breathe on its own outside the womb) to report the diagnosis that led to the abortion.

According to the Family Research Council, Gov. Sebelius received significant political donations from a late-term abortionist and used the Governor's Mansion to entertain both this man and the nation's leading partial-birth abortionist. Post-viability abortionists are expected to provide robust financial support for President Obama's 2012 reelection bid.

Abortion opponents have denounced the appointment as "divisive."

Kansas Judge Holds Late-term Abortion Restrictions Constitutional

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."

Fourth Circuit Will Convene En Banc to Reconsider Panel's 2-1 Holding Against Virginia Partial-Birth Abortion Ban

The federal 4th Circuit Court of Appeals will meet in its entirety (en banc) to rehear arguments on Virginia's partial-birth abortion ban after a three-judge panel of the same court overturned the law by a 2-1 decision.

One of the appeal issues is that the Virginia statute, unlike its federal counterpart, does not protect abortionists who set out to perform legally permissible abortions, but perform partial-birth abortions by accident.

The U.S. Supreme Court denied certiorari after the 6th Circuit struck down a similar Michigan statute in June, 2007. If the 4th Circuit decides en banc to uphold Virginia's statute, the High Court may grant certiorari in order to resolve the conflict between the circuits.

Full court will consider Virginia ban on 'partial-birth abortion'
By LARRY O'DELL
Associated Press

RICHMOND - A full federal appeals court agreed Monday to review a panel decision striking down a Virginia law banning a type of late-term abortion.

The state attorney general's office asked for the rehearing after a panel of the 4th U.S. Circuit Court of Appeals declared the ban unconstitutional on May 20. Oral arguments are expected in late October.

The law bans a procedure that abortion opponents call "partial-birth abortion." Judge M. Blane Michael wrote in the panel's majority opinion that the law is unconstitutional "because it imposes an undue burden on a woman's right to obtain an abortion."

An appeals court panel first struck down the statute in 2005. The U.S. Supreme Court ordered the court to take another look after upholding a similar federal abortion ban last year.

"We are pleased by today's decision that the full 4th Circuit Court of Appeals will hear this case for the first time," said J. Tucker Martin, a spokesman for Attorney General Bob McDonnell.

Stephanie Toti, the Center for Reproductive Rights lawyer who represented abortion providers in the case, said she was surprised the full appeals court decided to rehear the case "because the legal issues involved are fairly straightforward."

Abortion opponents claim the Virginia law is broader than the federal ban. One key difference between the two laws cited by the appeals panel in its 2-1 ruling: The federal law protects doctors who set out to perform a legal abortion that by accident becomes the banned procedure, while the Virginia statute does not.

"The Virginia law is extreme in its application," Toti said. "It's basically a ban on a common method of second-trimester abortion."

Toti also noted that in June 2007, the 6th U.S. Circuit Court of Appeals declared Michigan's law unconstitutional because it could also prohibit other abortion procedures. The Supreme Court in January refused to review the decision.

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The case is Richmond Medical Center v. Herring.

On the Net:
The May 20 panel decision: http://pacer.ca4.uscourts.gov/opinion.pdf/031821A.P.pdf