Topeka The Kansas Supreme Court temporarily blocked a Sedgwick County grand jury's access Tuesday to patient records from abortion provider Dr. George Tiller.
The grand jury is investigating whether Tiller, one of the nation's few late-term abortion providers, has broken Kansas laws restricting abortion, as many abortion opponents allege. The grand jury subpoenaed the medical files of about 2,000 women, including some who decided against having abortions.
The grand jury also subpoenaed information about current and former employees and referring physicians.
Tiller's attorneys asked the Supreme Court to quash the grand jury's three subpoenas, and the court agreed to block their enforcement until it considers the issue.
The court set a Feb. 11 deadline for retired District Judge Paul Buchanan, who is presiding over the grand jury's investigation, and Judge Michael Corrigan, the county's chief judge, to file any objection to the court's action. The judges then have until Feb. 25 to file their answer to Tiller's legal challenge.
The court hasn't set a hearing date but can rule whenever it wants without hearing arguments.
In a related development, the Center for Reproductive Rights of New York filed a petition Tuesday with the justices also seeking to have the subpoenas quashed. Bonnie Scott Jones, the center's senior attorney, said her group represents two women - identified only as Jane Doe and Ann Roe - and "similarly situated patients."
"It is a parallel action, which I assume the court will consider together," she said. "The patients have a strong interest at stake. It is their privacy that will be violated if these records are released."
The Sedgwick County prosecutor presenting evidence to the grand jury had objected to the attempts to block the subpoenas, noting that the grand jury's term, which started Jan. 8, is limited to 90 days. But in the Supreme Court's two-page order, Chief Justice Kay McFarland noted that the grand jury's term can be extended.
McFarland also said Tiller's challenge raises "significant issues" about patients' privacy and a grand jury's power to subpoena records.
"We are pleased," said Lee Thompson, an attorney representing Tiller. "The Supreme Court has recognized very significant issues regarding privacy protection are at stake and is willing to give us more time to assess that."
Abortion opponents forced Sedgwick County to convene the grand jury by submitting petitions. Kansas is one of six states that permits citizens to petition to create a grand jury.
Abortion opponents accuse Tiller of violating a 1998 law restricting late-term abortion, an allegations his attorneys repeatedly have said is unfounded.
"That is extremely disappointing that they are getting involved," Mary Kay Culp, executive director of Kansans for Life, the state's largest anti-abortion group, said of the court.
"There is no way to determine if the reasons for these late abortions were done within the narrow legal criteria without looking at the records themselves," she said. "His lawyers say they are worried about women's privacy. They are worried about protecting Dr. Tiller.
Numbers and names
Tiller's clinic has not started handing over patient records. The edited patient records would not have the women's names, but they would have patient-identification numbers. Tiller's attorneys claimed in court last week that in an earlier investigation, former Attorney General Phill Kline was able to track down patients' names using the identifying numbers on patients' files.
A spokesman for Kline, who is now Johnson County district attorney, denied that any patients had ever been identified.
Tiller's attorneys told Buchanan that if Kline could use that information to identify patients, then someone else could as well.
Kline eventually filed 30 misdemeanor charges against Tiller before leaving office last year, only to see the case dismissed for jurisdictional reasons.
The grand jury is seeking all health care records of patients who aborted a fetus determined to be 22 weeks or older from July 1, 2003, through Jan. 18 at Tiller's clinic, Women's Health Care Services. The grand jury also wants the health care records of patients who did not have abortions but were at least 22 weeks pregnant when they consulted with a physician at the clinic.
Buchanan ordered attorneys Friday to comply with all the subpoenas, turning aside arguments that the subpoenas violate the privacy rights of women seeking abortions.