Wichita ? A federal judge has refused to block the seating of a Kansas grand jury sought by abortion opponents to look into whether Dr. George Tiller broke state law on late-term abortions.

“Frankly, I’m reluctant to jump into the middle of something that is essentially a state matter,” U.S. District Judge J. Thomas Marten said Tuesday. “The odds that any appellate court would uphold any injunction in this case would be pretty remote.”

Marten said that while Tiller’s lawyers made a strong case, he did not believe he should take the rare step of issuing orders to a state court. He suggested the Wichita doctor instead refile in state court.

Tillers’ lawyers plan to do just that, attorney Lee Thompson said Wednesday.

“We are grateful for his encouragement that these issues would be just as likely to be sustained by a state court,” Thompson said, adding that the court recognized that there were some substantial issues presented.

Thompson also said Tiller’s attorneys have not yet decided whether they will continue to pursue the federal case.

In seeking the investigation of Tiller, abortion foes used a 1970 state law that allows the public to petition for a grand jury. Sedgwick County Election Commissioner Bill Gale said petitioners had gathered more than twice the number of signatures of registered voters required to compel the local court to form the grand jury. He certified the petition Tuesday.

It’s the second time in less than 18 months that abortion opponents have petitioned for a grand jury to investigate Tiller. Last year, they succeeded in convening one to review the death of a Texas woman who had had an abortion at Tiller’s clinic, but no indictment was returned.

Tiller’s attorneys had sought a temporary restraining order to prohibit Gale and Sedgwick County Administrative Judge Michael Corrigan from seating another grand jury.

They argued that another grand jury probe would be “unfair, harassing and bad faith.”

They also noted that Tiller has been investigated repeatedly in the past year. He currently is charged with 19 misdemeanors for allegedly failing to get an independent second opinion on some late-term abortions, as required by state law. A previous case alleging Tiller didn’t have the medical reasons necessary to justify late-term abortions was dismissed for jurisdictional reasons in December.