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Seeking to dismiss charges, Tiller challenges Kan. abortion law

Hoping to end a criminal case against him, high-profile abortion provider Dr. George Tiller filed a legal challenge Monday to the constitutionality of a Kansas law restricting late-term procedures.
/ Source: The Associated Press

Hoping to end a criminal case against him, high-profile abortion provider Dr. George Tiller filed a legal challenge Monday to the constitutionality of a Kansas law restricting late-term procedures.

Tiller, one of the few U.S. physicians performing late-term abortions, faces 19 misdemeanor charges in Sedgwick County District Court. Attorney General Paul Morrison alleges the Wichita doctor broke the law by consulting in 2003 on late-term procedures with a physician who had business ties to him.

A 1998 law requires two doctors to sign off on some late-term procedures. It says those physicians cannot have financial or legal ties. Tiller's attorneys filed a motion to dismiss the charges Monday and argued that the requirement is unconstitutional.

Tiller's attorneys argued the requirement is an undue burden on a physician's right to practice medicine and violates a woman's right to obtain an abortion as outlined in court decisions. Also, his attorneys said the law is too vague.

"There is absolutely no guidance in the state as to what activities constitute legal or financial affiliation _ or how a physician might avoid some prosecutor making such a finding," attorneys Dan Monnat and Lee Thompson, both from Wichita, wrote in their request to have the case dismissed.

Monnat said a district court hearing on the request is set for July 13.

Spokeswoman Ashley Anstaett said Morrison had anticipated that Tiller would challenge the law's constitutionality.

"We will defend the constitutionality of the statute," she said.

The law under which Tiller is charged applies when abortions are performed after the 21st week of pregnancy and the fetus can survive outside the womb.

Two doctors must determine that continuing the pregnancy will lead to the mother's death or cause "substantial and irreversible" harm to "a major bodily function," a phrase interpreted to include mental health. The second doctor cannot be "legally or financially affiliated" with the abortion provider.

In 19 such procedures from July 8, 2003, through Nov. 18, 2003, Tiller consulted with Dr. Ann Kristin Neuhaus, of Nortonville, according to Morrison's complaint. The attorney general has said they had a financial relationship, although he hasn't been more specific.

Neuhaus' attorney has said Tiller did not pay her. Tiller's attorneys have said the charges, filed Thursday, stem from "a difference of opinion" among attorneys about "unusual technicalities" in the law.

In attacking the two-doctor requirement, Tiller's attorneys cited federal district and appeals court decisions from Alabama, Illinois and Ohio, as well as the U.S. Supreme Court's historic Roe v. Wade decision, which in 1973 legalized abortion in all states. Tiller's attorneys also cited a 1992 Supreme Court decision in a Pennsylvania case that allowed states to impose some restrictions but upheld Roe.

Because the law isn't specific about what constitutes a legal or financial affiliation, Tiller's attorneys wrote, "Abortion providers will fear providing services, and referring physicians will fear rendering a medical opinion because they will fear criminal prosecution."

"Either fear will have a chilling effect on the availability of health care services," Tiller's attorneys wrote.

Mary Kay Culp, executive director of Kansans for Life, said the timing makes Tiller's arguments suspect, given that the law has been in place since 1998.

"All of a sudden, nine years later, they're arguing that?" she said. "Now that they're caught, they're deciding it's unconstitutional."

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Case is State v. Tiller, No. 07CR2112 in Sedgwick County.

On the Net:

Attorney general's office: http://www.ksag.org/home/

Tiller's clinic: http://www.drtiller.com