Topeka The Kansas Supreme Court Tuesday ordered a lower court to review subpoenas issued by a grand jury seeking records from Dr. George Tiller's abortion clinic.
In a unanimous decision, the court upheld the constitutionality of citizen-initiated grand juries, such as the one investigating Tiller, but said the panel's subpoenas must be scrutinized by state district court judges who are overseeing the case.
"Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or with an intent to harass," Justice Lee A. Johnson wrote for the court.
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 Tiller has been violating restrictions on late-term abortions. Tiller denies any wrongdoing, and says the grand jury proceeding amounts to harassment.
That grand jury 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 instructed the district judges to determine if the subpoenas are too broad in scope and whether patient records would be too burdensome to produce.
The judges must also determine if the grand jury is engaging in harassment. If so, then the subpoeanas must be stopped, the court ruled. If not, the district court must determine if the state's interest to prosecute alleged crimes is greater than the patients' constitutional privacy interests.
If the records are eventually subpoenaed, all patient identifying information must be redacted, reviewed by an independent attorney and physician, and kept within the grand jury proceeding, the court ordered.