Abortionist on trial

Jury selection was held March 16 to 18, with a panel of six jurors and two alternates. Tiller’s attorneys wanted to seat a 12-person jury, but the motion was denied by Judge Owens because this is a misdemeanor trial. The lead prosecutor is state assistant attorney general Barry Disney; the lead defense attorney is Dan Monnat.

The whole of the trial rests on one issue, explains Kathy Ostrowski, senior lobbyist and researcher for Kansans for Life. That issue is the relationship between Tiller and a second doctor, Ann Kristin Neuhaus.

According to a 1998 law, KSA 65- 6703, Kansas prohibits late-term abortions on viable fetuses after 21 weeks of pregnancy. Two exceptions are allowed.

The first is if the abortion is necessary to save the life of the mother. The second exception is if continuation of the pregnancy will result in the “substantial and irreversible impairment of a major bodily function” of the mother. It is this second exception that is used as a “mental health” clause, permitting allowances to be made for mental health issues.

The abortion may not be performed, however, unless these exceptions are documented by another physician who is “not legally or financially affiliated with the physician performing the abortion,” according to the statute.

Tiller is being charged with 19 misdemeanor counts of failing to get this second and independent medical opinion. It is alleged that Tiller had a financial relationship with Neuhaus, who has been granted immunity from prosecution.

If he is convicted, Tiller could face penalties of one year in jail and fines of $2,500 for each misdemeanor. The 19 misdemeanor counts were for abortions performed on girls as young as 10 years old, she said. In each case, the fetus was viable. The abortions were performed under exceptions to the ban, with the agreement of a second, allegedly independent, opinion by a second physician: Neuhaus.

“All Tiller needed to run a late-term abortion clinic was another doctor with a Kansas medical license,” said Mary Kay Culp, executive director of Kansans for Life. “Neuhaus had no patients or office because of her tarnished reputation, but she had the one thing that Tiller needed.”

Neuhaus operated an abortion clinic in Lawrence from 1997 to 2002 and also formerly practiced in Wichita. She was forced to close the Lawrence clinic when it fell into debt following a period of inactivity in 2001. The inactivity was due to an investigation by the Kansas Board of Healing Arts.

Neuhaus faced disciplinary action before the KBHA for breaking Drug Enforcement Agency regulations for controlled substances, including fail- ure to keep complete and accurate records. According to an Oct. 18, 1999, stipulation, agreement and enforcement order, the board restricted her to the use of one drug and required an administration log with duplicate prescription copies to be reviewed monthly by an outside pharmacist.

The board imposed emergency limitations on Neuhaus on Aug. 12, 2000, and terminated them on Sept. 8, 2000, after a promise that she and her staff would complete certain training.

The history of the case is long and convoluted. Tiller’s attorneys made several attempts all through the process to have the charges dismissed, and they failed each time.

The investigation began in 2003, after former Kansas legislator Phill Kline was elected Kansas attorney general.

Kline began his investigation with an attempt to obtain redacted medical files of women and girls who had undergone abortions at Tiller’s clinic and at Planned Parenthood of Overland Park. Attorneys representing these two clinics resisted these efforts, but Kline finally received 90 files in 2006.

Kline lost his bid for reelection in November 2006 to Johnson County district attorney Paul Morrison. In December 2006, before Morrison took office, Kline filed 30 misdemeanor charges against Tiller for abortions performed on minors. These charges were dismissed on jurisdictional grounds at the request of Sedgwick County district attorney Nola Foulston.

When Morrison assumed his duties as state attorney general, Kline was appointed Johnson County district attorney.

In October 2007, Kline charged Planned Parenthood with 23 felonies and 84 misdemeanors — a total of 107 criminal counts. Kline lost the primary election in August 2008 to Steve Howe, who went on to become Johnson County district attorney in the 2008 election.

Court documents indicate that this case is currently on interloculatory appeal based on the district court’s ruling on the admissibility of evidence, and the matter has not yet been set for appellate arguments.

An interloculatory appeal means that the judge has ruled adversely to the state, and the state is appealing that ruling because material evidence is needed for trial. The state has a right to appeal the district court’s ruling on the admissibility of the evidence.

Morrison had been very critical of Kline’s investigation, and in June 2007, he threw out the former attorney general’s 30 misdemeanor charges against Tiller. However, in reviewing Kline’s investigation, Morrison filed 19 new misdemeanor charges against Tiller.

When Morrison resigned his attorney general’s post in January 2008 and was succeeded by Steve Six, the latter continued to work the case against Tiller.

“We are hoping that if Tiller is convicted, Attorney General Six will investigate Tiller for the years following 2003, during which we suspect that Neuhaus continued her affiliation with Tiller,” said Culp. “Subsequent convictions would be felonies.”

Culp said that all indications were that the trial would be short, and it is all but certain that Tiller would appeal any conviction. In such case, Tiller would likely continue his practice as the case continues its journey to a higher court.