Wichita A Sedgwick County judge ruled Monday that the Kansas abortion statute is constitutional, denying a defense motion to dismiss a criminal case brought against one of the nation's few late-term abortion providers.
The 35-page decision handed down by Sedgwick County District Judge Clark Owens spurns several challenges to the statute under both the U.S. Constitution and the Kansas Constitution brought by defense attorneys for Dr. George Tiller.
"Abortion jurisprudence in this country has been going through an evolutionary process since Roe V. Wade in 1973," Owens wrote, adding that in light of all the interpretations, the statute survives all the constitutional challenges.
Former Kansas Attorney General Paul Morrison filed 19 misdemeanor charges against Tiller in June 2007, alleging he broke a 1998 state law requiring that a second, independent Kansas physician sign off on late-term abortions of viable fetuses. Two doctors, without financial or legal ties, must conclude that if the pregnancy continues, the mother will die or face "substantial and irreversible" harm to "a major bodily function," which has been interpreted to include mental health.
Tiller relied on Dr. Ann Kristin Neuhaus, of Nortonville, for his second opinion on abortions in 2003, and she had a financial relationship with him that is against the law.
Tiller's attorneys contend that the law creates an unconstitutional burden on a physician's right to practice medicine and a woman's right to obtain an abortion. They also argued that the Kansas law was unconstitutionally vague. His defense attorneys also challenged it on the basis of violating a right to travel because of the requirement a woman be seen by two separate physicians in Kansas.
Ashley Anstaett, spokeswoman for the Kansas Attorney General's office, said Monday after the decision was handed down that prosecutors will move forward with the criminal case.
The decision came as a disappointment for Tiller's defense team, but was hailed by abortion opponents.
"We certainly respect the decision of the judge, but we hasten to point out that the decision on this one legal point does nothing to affect Dr. Tiller's innocence of the very technical charge still set for jury trial," said Dan Monnat, one of Tiller's defense lawyers.