Wichita Sedgwick County District Judge Clark V. Owens said he will rule within several weeks on whether to dismiss charges Attorney General Paul Morrison filed against Dr. George Tiller for allegedly violating Kansas' restrictions on late-term abortions.
After hearing arguments Friday, Owens said he would likely decide at the same time whether a panel of 12 jurors would hear the misdemeanor case, as Tiller requested. State law limits juries in misdemeanor trials to six members.
Morrison filed 19 misdemeanor charges against Tiller in June for allegedly failing to have a second, independent physician sign off before he performed abortions on viable fetuses, as required by Kansas law.
His jury trial is set for March 10.
Tiller did not attend Friday's hearing. He was represented by four attorneys hired from two prominent Wichita law firms.
Defense attorney Lee Thompson told the judge that the state statute requiring another Kansas doctor to concur with the abortion decision was unconstitutional and placed an undue burden on a woman's right to an abortion.
He also argued that Tiller was not legally affiliated with Dr. Ann Kristin Neuhaus, the Nortonville physician who signed off on the abortions at Tiller's clinic. He said Neuhaus worked out of Tiller's office only "for security purposes" so that women seeking an abortion would not have to be further subjected to abortion protesters in getting that second opinion.
But prosecutor Jared Maag argued that the state has evidence that Tiller was legally and financially affiliated with Neuhaus and that the evidence should be presented to a jury.
Maag said the state has a substantial interest in preserving life once a fetus is viable as well as in protecting the life and health of the woman seeking the abortion.
"You don't want these two doctors to be in collusion," Maag said, adding that it seemed strange that Neuhaus was the only other doctor who signed off on Tiller's late-term abortions.
The U.S. Supreme Court ruled in April that the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's right to an abortion.
Prosecutors argued that the ruling supported their contention that the state has a substantial interest in protecting human life - especially once the fetus can survive outside the womb.
Tiller's defense attorneys argued that the case applied only to a late-term abortion procedure, one that is not performed in Kansas.