High court postpones subpoena on Tiller
BY RON SYLVESTER
The Wichita Eagle

The Kansas Supreme Court on Tuesday postponed a grand jury's subpoena for George Tiller's clinic to turn over medical records of 2,000 women who have sought late-term abortions.

In the order, Chief Justice Kay McFarland said the subpoena "raises significant issues" of both patient privacy and a grand jury's authority to issue subpoenas.

The order was in response to a petition filed by Tiller's lawyers, who appealed a judge's order to turn the records over to a grand jury.

The grand jury convened in January, following a petition from nearly 7,000 residents asking for an investigation into late-term abortions at the Women's Health Care Services clinic in Wichita.

Tiller, who runs the clinic, is one of the few doctors in the country who perform late-term abortions.

Two weeks ago, the grand jury subpoenaed records for any women who were at least 22 weeks pregnant when they sought or received abortions at the clinic from July 1, 2003, to Jan. 18.

Tiller's lawyers asked retired Judge Paul Buchanan, assigned to oversee the grand jury, to stop the subpoenas. Buchanan refused and ordered the files be turned over.

The state's Supreme Court received an appeal Friday and issued its order Tuesday, preventing files from being provided to the grand jury until the justices could make their decision.

"Dr. Tiller is very pleased that 2,000 distraught women and girls will sleep much better tonight knowing that the Chief Justice of the Kansas Supreme Court has halted the grand jury's unsupervised prying into their medical files," said Dan Monnat, a lawyer representing Tiller.

Abortion rights opponents who helped collect signatures to empanel the grand jury were upset.

"This is more than a delay tactic," said Troy Newman of Operation Rescue in Wichita. "This is an abuse of process to allow the statute of limitations to run out on some of these crimes and to exasperate the patience of the grand jury."

McFarland recognized that grand juries are limited to 90-day terms, but also said that those terms can be extended.

Because of the time limits, the court ordered Buchanan and district Chief Judge Michael Corrigan to file any objections by Feb. 11.

They have until Feb. 25 to justify Buchanan's order.

Among the issues the state Supreme Court will consider:

• Whether the grand jury has shown sufficient reasons why it needs to see individual medical records

• Whether Buchanan's order sufficiently guarantees the privacy of the women who visited the clinic

• Whether producing the records will unduly intimidate women trying to exercise their right to seek an abortion

On Friday, lawyers argued on Tiller's behalf that removing the women's names from the files provided no assurances of privacy. They alleged that two years ago, then-Attorney General Phill Kline was able to identify some of the women in the files, even when their names were stricken from the records.

Kline, now Johnson County district attorney, denied through a spokesman that he was ever able to identify any women.

But Tiller's lawyers on Friday produced a document showing that the attorney general's office during Kline's term had cross-referenced details in the redacted medical files with a guest roster at a motel near the Wichita clinic to determine patients' names.

If it can happen once, Tiller's lawyers argued, it can happen again.

Kansas law allows late-term abortions if two independent doctors conclude that if a pregnancy continues, the pregnant woman or girl could face "substantial and irreversible" harm to "a major bodily function."

In Johnson County, lawyers for a Planned Parenthood clinic in Overland Park are watching what happens with the Wichita case.

A citizen-petitioned grand jury there also has subpoenaed similar records. A hearing before Judge Kevin Moriarty to stop the subpoena is set for Feb. 15.

Planned Parenthood attorney Pedro Irigonegaray said if the judge denies that request, he would also consider an appeal to the Kansas Supreme Court.

The Supreme Court's ruling Tuesday "clearly sends a signal and the signal is that our court takes very seriously the issue of privacy," Irigonegaray said.

"Medical records must be protected because they represent one of the most private aspects of our lives."

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."

Contributing: Kansas City Star, Associated Press
Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com.