For abortion foes, Tiller case also served as legal test

? The alleged crime’s name was the same: unlawful late-term abortion, a misdemeanor. The punishment for each count also was identical: up to a year in jail and a fine of up to $2,500.

Yet abortion opponents said last week that Attorney General Paul Morrison had filed less serious charges than his predecessor, Phill Kline, had in December against Dr. George Tiller, the Wichita abortion provider who is among the few U.S. physicians performing late-term procedures.

Morrison, an abortion rights Democrat, unseated their champion, Kline, a Republican, in last year’s election. Morrison filed 19 misdemeanors while Kline filed 30, and the two men focused on different aspects of Tiller’s late-term abortions.

But there’s a bigger reason for abortion foes to be disappointed and frustrated with Morrison rather than celebrating his case, even if it threatens to put Tiller in jail.

Kline based half of his charges on a reading of the late-term abortion law that he expected Tiller’s attorney to challenge in court because, he said, “They’ll litigate on all issues.”

A court challenge spawns appeals, and appeals open a road to a U.S. Supreme Court made more conservative by President Bush’s two appointments. A case before the nation’s highest court is a chance to shape American law.

For an abortion opponent, it’s a goal worth pursuing. For an abortion rights supporter, it’s why Kline was feared and his re-election fought.

“He wanted to have his name attached to a case involving abortion,” said Julie Burkhart, a lobbyist for ProKanDo, a political action committee Tiller formed. “He wanted to carry the banner on that.”

’98 law at issue

Both cases involve a 1998 law dealing with abortions past the 21st week of pregnancy if a fetus can survive outside the womb.

Before such abortions can be performed, two doctors must determine that continuing the pregnancy would cause death or “substantial and irreversible” harm to “a major bodily function,” which has been interpreted to include mental health. The two doctors cannot be “legally or financially affiliated.”

Morrison said Tiller performed 19 abortions in 2003 that were illegal because the second physician, Dr. Ann Kristin Neuhaus, of Nortonville, who used to operate an abortion clinic in Lawrence, had a financial relationship with him.

Kline alleged that Tiller performed 15 such abortions in 2003 on patients with mental health conditions that weren’t “substantial and irreversible,” such as single-episode depression or anxiety. He also said Tiller didn’t report the reasons and basis for his determinations to the state, as required by law.

Abortion opponents saw Kline’s allegations – involving the reasons behind the abortions – as the most serious ones against Tiller.

Imagine, they said, how the law would apply if Morrison’s view prevailed. Neuhaus couldn’t sign off on Tiller’s abortions, but if he could find another, legally acceptable doctor, he could keep doing the same procedures for the same reasons.

But under Kline’s scenario, Tiller couldn’t do many of the abortions he’s performing now.

“The intent of the law is that these babies would be saved,” said Troy Newman, president of the anti-abortion group Operation Rescue.

Legal implications

Morrison said Kline’s charges weren’t valid because the law says only that two doctors must determine that a woman will face death or serious and permanent physical or mental damage. It applies to the future risk to a patient, not to her present condition, and once the determination is made, the abortion can go forward, he contends.

He argues, in keeping with a doctrine long established in American courts, that a criminal law must be read narrowly, so that people have clear notice of what’s illegal, because a defendant’s liberty is at stake.

Kline argues that such a reading of the law renders it meaningless. In effect, he said, all doctors would be required to do is say they’ve made a determination and regurgitate the phrase in the statute, without being held accountable for their conclusions.

He said it’s reasonable to infer that the legislators who wrote the law – he was one of them, having served in the Kansas House – wanted the state to examine the doctor’s diagnoses and evaluate whether patients faced medical emergencies. (The Kansas law borrowed its “substantial and irreversible” phrase from the definition of “medical emergency” in Pennsylvania’s abortion law.)

Kline is confident that in a legal challenge, the courts would side with him: “Absolutely – the language is very clear.”

Differing questions

However, the more important point is that, had Kline’s case gone forward, his reading of the law would have been litigated and the issue settled by the courts – perhaps even the U.S. Supreme Court.

Meanwhile, Morrison’s case probably will rest on factual questions about what constitutes a financial relationship and whether the Tiller-Neuhaus arrangement qualifies. The question of whether Tiller’s patients truly faced medical emergencies seems beside the point in such a case.

Kline’s case came with the potential for a legal precedent limiting late-term abortions. Morrison’s case appears likely to leave abortion jurisprudence undisturbed.

It’s little wonder then – even if the alleged crime’s name and the punishment for each count are identical – that abortion opponents will praise Kline and criticize Morrison.