Murky Debate on Abortion Law

The law in Kansas is explicit: A fetus old enough to survive outside the womb cannot be aborted -- unless continuing the pregnancy would endanger the woman’s life or irreversibly harm her physical or mental health.

In demanding access to the medical records of women who had late-term abortions, Kansas Atty. Gen. Phill Kline suggested this week that doctors might be violating that law by aborting viable fetuses too freely.

His aggressive action earned praise from abortion opponents, some of whom maintain a vigil in front of hundreds of white crosses pounded into the grass outside the state’s sole late-term abortion clinic, here in Wichita.

“The attorney general is doing his job. He’s enforcing the law,” said Troy Newman, president of the abortion protest group Operation Rescue West.

But abortion providers -- and patients -- say the thought of a prosecutor sifting through medical charts to second-guess their choices terrifies them.

Two doctors can look at the same ultrasound, review the same charts and come to different conclusions about whether a fetus would survive outside the womb. Kansas law prohibits abortions at or after 22 weeks of gestation unless the woman’s health is at risk.

Some babies born as early as 4 1/2 months into the pregnancies can survive with intensive intervention, but others do not. The prognosis depends not only on fetal size, but also on the mother’s health, diet and age, even the skill of neonatal nurses at the hospital.

If there’s no doubt the fetus is viable -- the clinic here has aborted full-term babies of 38 weeks’ gestation -- doctors may differ about whether the woman’s mental or physical health would be jeopardized by continuing the pregnancy.

They may consider her health at risk if she’s despondent after learning that her unborn child is missing half a brain. Or if she comes into the clinic bruised and battered by an abusive husband. Doctors may require a psychiatrist to certify that the patient suffers from acute mental distress. Or they may make the call themselves, based on interviews with the woman.

Fetal viability and maternal health can be assessed using objective scientific measures, but there is inevitably a subjective component, said Janet Crepps, a staff attorney with the Center for Reproductive Rights in New York

“If you look far enough, you can probably find a doctor who will have a different opinion, especially in an area as politically charged as abortion,” Crepps said. “That’s why physicians feel vulnerable” when prosecutors demand that they open their medical charts.

There are 39 states that ban abortions of fetuses that are viable outside the womb or that have reached a certain gestational age, according to NARAL Pro-Choice America, an abortion rights group. The U.S. Supreme Court has ruled that all such laws must contain exceptions to permit abortions when necessary to preserve the mother’s life or physical or mental health.

A handful of doctors around the country perform abortions late into the second and third trimesters. One of the best-known is Dr. George R. Tiller, who attracts patients from across the nation and even around the world to a windowless clinic on a freeway frontage road here.

Backed by a judge’s subpoena, Kline has demanded to see the complete files -- including names and medical histories -- of some patients who had abortions at or after 22 weeks of pregnancy at Tiller’s clinic, Women’s Health Care Services.

The attorney general also has sought the records of a clinic in Overland Park, near Kansas City, run by Planned Parenthood of Kansas and Mid-Missouri. That clinic provides some second-trimester abortions, as late as 23 1/2 weeks’ gestation, but only if its physicians first determine that the fetus cannot survive outside the womb.

In all, Kline has subpoenaed the files of about 90 patients who obtained abortions in 2003. He started his efforts to gain access to the records last year; the secret inquiry became public this week after the clinics filed a brief asking the state Supreme Court to block the subpoena.

In a news conference Thursday, Kline said he needed the medical files to put together criminal prosecutions.

He referred in particular to possible charges of statutory rape or child sexual abuse in cases in which the patients seeking abortions were under 16. But Kline subpoenaed the records of scores of women -- not just teenagers -- who came into the clinics more than 4 1/2 months into their pregnancies.

In Kansas, 318 viable fetuses were aborted in 2003, according to state health department records. All but 11 of the patients came from out of state.

When running for attorney general as a Republican in 2002, Kline said that he did not believe that a woman’s mental health concerns should be reason enough for her to receive a late-term abortion.

In fighting Kline’s subpoena, lawyers representing the clinic called his campaign to build criminal cases against the physicians who perform late-term abortions a “direct and potent threat to the exercise of fundamental constitutional rights.”

“Dr. Tiller has always consistently, carefully and appropriately followed the law in all respects,” the lawyers said in a statement.

Kansas law includes a provision that a second physician -- unaffiliated with the abortion clinic -- must agree a woman’s health is endangered before a viable pregnancy is terminated.

The state health department’s annual report on abortions does not include information from the second physicians. In all 318 cases, the attending physician asserted that the patient was not suffering from a medical emergency, but that the abortion was nonetheless necessary to “prevent substantial and irreversible impairment of a major bodily function.” Beyond that, doctors do not need to explain their reasoning.

Tiller’s colleagues say that is how it should be.

Dr. Warren Hern, who performs late-term abortions in Boulder, Colo., says he agonizes over whether to terminate pregnancies when women come into his clinic late in their pregnancies -- sometimes two weeks from their due date.

“If they say, ‘I’ve just decided I can’t do this’ ... [or] ‘I’m upset with my husband today’ ... I don’t take care of them,” Hern said. “I turn those requests down routinely, several times a week. Being indecisive is not an indication for having an abortion.”

But if the woman just learned that her baby suffers from a fatal genetic disorder, “or if it’s a kid raped by her stepfather, 13 years old and clutching a pink teddy bear,” Hern said, he spends considerable time trying to determine, for his own peace of mind, whether an abortion is justified.

Colorado law puts no restrictions on late-term abortions, but Hern said he would accept patients after 26 weeks of pregnancy only if they had “a very good reason” for an abortion, “a reason that other physicians would agree is justification” for terminating the pregnancy.

“Dr. Tiller and I and the few other physicians who do this have been looking over our shoulders on stuff like this for 30 years,” Hern said. “Even if you had no political pressure ... these would be very, very difficult decisions.”

Knowing that a prosecutor could review patient files -- and potentially publicize doctors’ opinions on whether the abortions were justified -- makes each decision that much more freighted, Hern said. “Because there are a lot of people waiting out there with long knives,” he added, “just waiting for a reason to close my practice.”

Newman, of Operation Rescue West, is one of those people, armed not with knives but with his “Truth Truck,” a beat-up truck covered with images of bloody fetuses. He routinely parks it outside Tiller’s clinic.

To him, Kline is being reasonable as well as responsible in demanding to see proof that the state’s clinics are following state law in determining who should receive an abortion.

“When Tiller says, ‘We don’t want to provide our records to prove that we’re abiding by the law,’ it’s like the fox guarding the henhouse,” Newman said. “Just because Tiller thinks he’s helping women doesn’t mean he ... can give anybody who wants it an abortion.”

Walking past the Truth Truck before sunset Friday, Virginia Casets, 35, said she supported Kline’s action, in the hopes that it might cut down the number of abortions.

“He needs to do something,” she said.

“I think it’s wrong,” countered her neighbor, Daniel Forer, 47. “No matter what you think about abortion, is this the way to fight it?”

Huffstutter reported from Wichita, Simon from St. Louis.