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Topeka — The ongoing legal fight by activists against abortion provider Dr. George Tiller will bring a small army of attorneys today to the Kansas Supreme Court.

Tiller, medical director of Women’s Health Care Services of Wichita, is trying to stop grand jury subpoenas for records of approximately 2,000 women who received services at his clinic.

Anti-abortion groups allege that Tiller has been violating state restrictions on late-term abortions. Tiller denies any wrongdoing.

Under Kansas law, abortions of viable fetuses are prohibited after the 22nd week of pregnancy unless necessary to save the mother’s life or prevent severe harm to the woman’s physical or mental health.

Through a petition drive process available only in Kansas and five other states, anti-abortion groups were able to convene a grand jury in Wichita to investigate their accusations.

That panel has ordered Tiller to provide the medical records of patients who sought late-term abortions between July 1, 2003, and Jan. 18, 2008.

The state Supreme Court will hear arguments on whether Tiller must provide the subpoenas.

The hearing starts at 9 a.m. and is scheduled to go to 11 a.m. The court has consolidated separate challenges to the subpoenas by Attorney General Stephen Six, Tiller’s clinic and patients of the clinic.

Patients argue for privacy

The patients, using pseudonyms to protect their identity, argue that the subpoenas represent an unconstitutional intrusion into their privacy, and that the grand jury isn’t entitled to the records because there has been no finding that the documents contain evidence of a crime.

The records contain detailed medical information, including physical and mental health histories, of women who terminated their pregnancies, sometimes under tragic circumstances, attorneys representing the patients argued.

In some instances, the patient had an abortion after learning of a severe fetal anomaly, and the medical records often include photographs of the fetus taken after the abortion, they said.

“These photographs ... may also include pictures of the fetus with baby clothes, stuffed animals or blankets that the parents had hoped to give their child.

“To have these personal histories paraded out before the members of the grand jury for their scrutiny and judgment is not only a gross intrusion on the patients’ privacy, it is cruel,” stated attorney Jim Lawing.

One woman accuses Tiller

But anti-abortion groups say the subpoenas are lawful.

They say the medical records can be shown to a grand jury without revealing the patients’ identification under standards set out by the Kansas Supreme Court in a 2006 ruling when then-Attorney General Phill Kline was seeking medical records from Tiller’s clinic. Kline eventually filed 30 counts of alleged violations of the late-term abortion law against Tiller, but the charges were dismissed on the grounds that Kline didn’t have jurisdictional authority in the case.

Since then, the state has filed 19 misdemeanor charges against Tiller, alleging that Tiller failed to obtain a second opinion on late-term abortions in 2003 from an independent physician, as required by law. That case is pending.

Anti-abortion groups, such as Kansans for Life, claim there are valid allegations of improper abortions, pointing to a sworn statement from Michelle Armesto-Berge, who in 2003 at the age of 18 had a late-term abortion.

“At no time before the baby was injected with the drug that killed him did any doctor or other medical staff in Dr. Tiller’s clinic ask me about my health or why I was having an abortion,” she said in a sworn statement. At a news conference Monday, she said Tiller’s records indicated her fetus was “nonviable,” thus avoiding the legal requirement to see a second doctor. Armesto-Berge said there was no indication prior to the abortion that there was anything wrong with the fetus.

“She is the poster child for why the records have to be reviewed,” said Kathy Ostrowski, who lobbies for Kansans for Life.

But attorneys for Tiller said in a legal brief, “Ms. Armesto’s medical record (which she submitted to this court) contains no evidence of any crime.”