Hours after the outgoing attorney general of Kansas charged one of the nation’s few late-term abortion providers with illegally aborting viable fetuses, a judge dismissed the charges, ruling Friday that the attorney general had overstepped his authority.
Atty. Gen. Phill Kline angrily vowed to get the charges reinstated.
“This is war,” said Mary Kay Culp, executive director of the anti-abortion group Kansans for Life.
The flurry of activity marks the latest twist in a long and bitter fight over abortion in Kansas.
State law permits abortions up to the time the fetus is viable outside the womb, usually 22 or 23 weeks’ gestation. Viable fetuses may be aborted only if the pregnant woman’s life is in danger or if two doctors certify that continuing her pregnancy will cause “a substantial and irreversible impairment of a major bodily function.”
Last year, Dr. George Tiller reported aborting 240 viable fetuses at his Wichita clinic because the pregnant woman was at risk of irreversible harm.
Anti-abortion activists have long contended that Tiller’s diagnoses are flimsy. Seeking to verify those suspicions, the attorney general pressed a two-year legal battle to get access to Tiller’s medical records. Charts for about 60 patients were turned over to him in late October.
The 30 charges Kline filed against Tiller -- all misdemeanors -- center on 15 of those patients. According to court records, all were approved for abortions because they suffered anxiety or had experienced an episode of “major depressive disorder.” Among them were several young teens and one 10-year-old, all of them in their late second or early third trimesters.
Kline maintains that depression is not a valid reason for a late-term abortion under Kansas law because the woman’s major bodily functions are not irreversibly threatened. Allies in the anti-abortion community agree: “This is a loophole that Tiller’s trying to exploit,” said Troy Newman, director of Operation Rescue.
But the U.S. Supreme Court has repeatedly ruled that any restrictions on abortion must include an exception for the pregnant woman’s health, including her mental well-being. The Kansas Supreme Court reminded Kline of that precedent last year.
“I believe I have complied with the spirit of the law and with the letter of the law,” Tiller said in an interview in June 2005, one of very few he has given in recent years.
On Friday, Tiller’s lawyers said he is “wholly innocent” and “has operated his practice under a microscope of scrutiny from the public and regulatory authorities.”
Tiller’s clinic -- one of just three in the nation that perform late-term abortions -- draws patients from as far as California, Vermont, Florida and Puerto Rico. Many have discovered late in their pregnancies that they’re carrying fetuses with genetic abnormalities or fatal deformities. Some are suicidal. A few, Tiller said, fear their relatives will disown, beat or even kill them for conceiving out of wedlock.
“They are absolutely desperate, for whatever reason, to terminate the pregnancy,” Tiller said in the 2005 interview. “I will never know in my heart and soul what that [feels like]. But I think it must mean as much to a woman to be told she can’t have an abortion as it does for a patient with cancer to be told that nothing can be done for him.”
Tiller did not return a call seeking further comment Friday. His attorneys, Lee Thompson and Dan Monnat, described the charges against him as “the last gasp of a defeated and discredited politician.”
Kline lost his bid for reelection in November after taking heavy criticism for his pursuit of the abortion patient records. He tried to rally his Christian conservative base with an appeal to counter Tiller’s “blood money,” but was defeated by a margin of 16 percentage points.
His successor, Paul Morrison, takes over in three weeks; he has said abortion cases will not be a top priority.
Kline’s last-minute push to charge Tiller before he leaves office was dismissed on the grounds it violated a 19th century statute outlining the attorney general’s duties.
The district attorney who covers Wichita, Nola Foulston, filed a legal brief Friday afternoon arguing that the statute requires an attorney general to get permission from local prosecutors before pressing a case in any given county.
Since she did not give Kline permission, Foulston said, the case against Tiller should be dropped. A district judge agreed and dismissed the charges without prejudice, meaning that they can be refiled.
Foulston, a Democrat, has not used this particular statute in her 17 years in office, according to Georgia Cole, her spokeswoman.
“But the law is the law,” Cole said.
Kline, a Republican, responded with outrage. He said he met with Foulston on Thursday to go over the case against Tiller and received no indication she would contest his involvement. Late Friday, his staff was preparing an emergency motion asking the judge to reconsider.
Even if the case against Tiller falls through, Kline may not be done with abortion law.
The Republican Party recently appointed him district attorney of Johnson County -- a jurisdiction that includes a Planned Parenthood clinic.
The clinic does not perform late-term abortions, but Kline has obtained about 30 patient medical records and is investigating them for potential violations.
“This guy will just never quit,” said Julie Burkhart, executive director of the abortion-rights political action committee ProKanDo.
Anti-abortion activists recognize Kline’s doggedness as well. Next month, Operation Rescue will honor him as Man of the Year.