A district court judge Wednesday refused to reinstate criminal charges against a nationally known abortion doctor, ruling that the Kansas attorney general had overstepped his authority in the case.
Outgoing Atty. Gen. Phill Kline last week charged Dr. George Tiller with performing illegal late-term abortions at his Wichita clinic and failing to report them accurately to state authorities. Hours later, Sedgwick County Judge Paul W. Clark dismissed the case on jurisdictional grounds: Only the locally elected district attorney, he said, had the power to bring such charges.
Kline asked Clark to reconsider. At a brief hearing Wednesday, the judge took another look at the legal arguments -- and upheld his previous decision.
"The case is dismissed. We're very pleased," said Lee Thompson, an attorney for Tiller.
Kline, a Republican, has appointed a special prosecutor to handle the charges against Tiller, including a possible appeal of the dismissal. But it's unlikely that any appeal could be resolved before Kline leaves office Jan. 8.
His successor, Democrat Paul Morrison, won election by painting Kline as an antiabortion extremist. In a statement after the hearing, Morrison pledged to review the evidence carefully -- but he strongly suggested he would drop Kline's long-running investigation into Tiller's clinic.
"Kansans expect more from their attorney general than grandstanding and political stunts," Morrison said. He promised to "refocus the vast resources of the attorney general's office."
But the antiabortion activists who pray daily outside Tiller's clinic are not willing to concede defeat.
Last spring, they gathered more than 7,700 signatures demanding that a grand jury be convened to investigate the death of a 19-year-old mentally disabled patient at Tiller's clinic. The patient, Christin Gilbert, died in January 2005 of complications from an early-third-trimester abortion. State health authorities cleared Tiller and his staff of wrongdoing. The grand jury found no grounds for criminal indictment.
Antiabortion activist Troy Newman said he may begin another petition drive to seat a new grand jury -- this time to consider Kline's allegations about illegal late-term abortions.
Kansas law permits abortions of viable fetuses only if the woman's life is in danger or if two doctors certify that continuing the pregnancy would cause "a substantial and irreversible impairment of a major bodily function." Tiller's clinic reported aborting 240 viable fetuses last year; Kline alleges that in some cases, the women were not facing irreversible health risks but rather were suffering from depression or anxiety.
"We'll be pressing as hard as we can to have these particular allegations brought before a court," said Newman, president of the activist group Operation Rescue. Dist. Atty. Nola Foulston, a Democrat, has asked Kline to turn over his evidence against Tiller so she can decide whether to file charges. But Kline has said repeatedly that he intends to keep investigating from the attorney general's office. He engaged in a two-year legal battle to get access to some of Tiller's patient medical records, and he continues to review them, even as his term winds down.
"The investigation," he said Wednesday, "is ongoing."