Grand jury seeks Tiller patients' files
BY RON SYLVESTER
The Wichita Eagle

 
A grand jury wants Wichita abortion provider George Tiller to let them examine his clinic's records for some 2,000 women who sought abortions over the past five years.

Two subpoenas issued last week by a Sedgwick County grand jury became public Monday, when Tiller's lawyers filed a motion seeking to stop or limit the production of records.

The 15-member panel asked for medical records of those patients who sought or obtained abortions after their 21st week of pregnancy from July 1, 2003 to Jan. 18. The subpoenas asked that names and other identifying information of patients be removed.

Kansans for Life, an anti-abortion group, and other groups petitioned last fall for the grand jury to look into Tiller's practices of providing late-term abortions. A judge convened the grand jury earlier this month.

Kansas law provides for late-term abortions in cases where the mother's health or well-being is in immediate jeopardy, as determined by two independent doctors. Tiller already faces 19 misdemeanor charges that he had an improper business relationship with a doctor who consulted on those patients.

History of the case

Tiller's lawyers said the subpoenas violate limitations set by the Kansas Supreme Court two years ago, when then-Attorney General Phill Kline tried to get a fraction of those records.

Kline tried to force production of 90 records from Tiller's clinic and a Planned Parenthood clinic in Kansas City from 2003.

By 2006, the Kansas Supreme Court limited Kline to 60 redacted patient records, with the patients' identities removed.

"The grand jury's desire to root around in not a few, not even 60, but every single one of Dr. Tiller's post-21-week patient files from the last four-and-a-half years is unprecedented in the contentious history of this investigation," reads the motion filed by Tiller's lawyers.

"Even (Kline's) office -- whose approach to the patients' files was otherwise reprehensible -- took pains to narrow the AG's request to a relatively small sample within in a single year," the motion said.

In granting Kline the records, the Kansas high court put limitations on what kind of abortion records could be ordered through a criminal investigation.

The subpoenas, for example, must be accompanied by some basis for a reasonable suspicion that a crime has been committed.

Troy Newman of the anti-abortion rights group Operation Rescue said he told the grand jury they needed to look at Tiller's patients records when he testified two weeks ago.

"I suggested to the grand jury they procure 2004, 2005, 2006, 2007," Newman said.

Newman also said he provided the grand jury with pictures of women he said were in their late stages of pregnancy going to Tiller's to get abortions.

Less than a week after Newman testified, the grand jury issued its subpoenas.

Dan Monnat, a Wichita lawyer who represents Tiller, said the grand jury must convince a judge they have solid grounds to suspect the records contain evidence of a crime.

For example, before police gain a search warrant, they must prove to a judge they have solid legal grounds to suspect a crime is being committed.

"The constitution gives a woman the right of privacy of her medical records," Monnat said. "That privacy can only be compromised once there's a judicial finding that it's likely evidence of a crime will be found in those records."

If that happens, the Kansas Supreme Court has said that an independent lawyer and doctor must be appointed to go through the records to make sure all identities of the patients have been properly removed.

Feb. 1 deadline

The grand jury also asked that the records be produced by Feb. 1.

Erin Thompson, another lawyer for Tiller, said in an affidavit filed Monday that simply removing the identities of the patients makes that deadline impossible.

Thompson said it took two employees working full time a month to prepare the 60 files ordered for Kline's investigation in the summer of 2007.

It would take more than 5,000 hours -- or 15 months -- to fulfill the most recent request for records.

Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com.