TOPEKA – Attorney General Stephen Six is resisting a subpoena from a Sedgwick County grand jury investigating Wichita abortion provider George Tiller.

Six asked the Kansas Supreme Court on Friday to quash the subpoena or at least temporarily block its enforcement. The grand jury demanded the records of 60 patients from Tiller’s clinic, which the attorney general’s office had obtained as part of an earlier investigation.

Attorneys for Tiller, one of the few U.S. physicians who performs late-term abortions, already have asked the Supreme Court to block three other subpoenas that the doctor received from the grand jury. One of them seeks the records of about 2,000 patients from Tiller’s clinic.

The Supreme Court ruled last week that the subpoenas to Tiller couldn’t be enforced until the justices decide whether to quash them. The court said Tiller’s legal challenge raised “significant issues” about the grand jury’s authority and patients’ privacy.

Six said the records sought from his office are covered by the subpoenas the grand jury served on Tiller — and therefore are covered by the Supreme Court’s order. He also questioned whether the grand jury had the authority to issue the subpoenas and said patients’ privacy could be in jeopardy.

“We simply want to give the Kansas Supreme Court the opportunity to examine these issues,” said Six spokeswoman Ashley Anstaett. “Our subpoena deals with a subset of the medical records involved in the Supreme Court’s recent ruling.”

Six disclosed last week that he had received two subpoenas from the grand jury. He complied with one, which sought testimony gathered previously from a doctor who worked with Tiller on some late-term abortions.

Dan Monnat, a Wichita attorney, said Six’s request to the Supreme Court is encouraging.

“Dr. Tiller’s foremost concern is always protection of his patients,” Monnat said in a statement. “Dr. Tiller is pleased to hear the voice of the top law enforcement officer in the state join in his call for protection of patient privacy.”

Mary Kay Culp, executive director of Kansans for Life, the state’s largest anti-abortion group, said she is appalled. Her group had been wary of Six because of his appointment by Sebelius, an abortion rights supporter.

“They switched names, they switched faces, but it doesn’t appear as if anything else has changed,” she said. “All the signs had been pointing a certain way, but this is more than a sign. It’s a slap in the face to the people of Kansas.”

Six’s petition to the Supreme Court named as defendants District Judge Michael Corrigan, Sedgwick County’s chief judge, and retired Judge Paul Buchanan, who’s supervising the grand jury.

The attorney general said in documents filed with the court that the grand jury subpoena ordered him to turn over the patient records by Feb. 20. Six said he asked the judges to quash the subpoena, but they refused.

Six also asked the Supreme Court to consolidate the case he filed with Tiller’s legal challenge to the grand jury subpoenas he received.

Reach Ron Sylvester at 316-268-6514 or [email protected]. All content © 2008 THE WICHITA EAGLE and may not be republished without permission.

Associated Press

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 [email protected]. All content © 2008 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle

A noon deadline passed Thursday, and a grand jury received nothing from abortion provider George Tiller. Instead, his lawyers rushed to appeal to the Kansas Supreme Court an order to surrender the medical records of 2,000 women.

And they sought and received another hearing this morning to seek further privacy protections in Sedgwick County District Court.

The state’s high court could postpone further proceedings until it studies the appeal Tiller’s lawyers expect to file today.

“We’re seeking an order to quash the subpoenas and to disband the grand jury,” said Dan Monnat, a Wichita lawyer representing Tiller.

Kansas for Life, which initiated petitions that resulted in the grand jury, said the legal moves are a stall tactic.

“He’s trying to protect himself, not the women involved,” said Mary Kay Culp, state executive director. “Their names and identifying information are going to be removed by a third party.”

The 15-member grand jury was empaneled earlier this month based on petitions signed by nearly 7,000 Sedgwick County residents. It had been asked to see whether Tiller obeyed state laws governing late-term abortions. He is one of the few doctors in the country who performs them.

The grand jury had subpoenaed the records of women who sought abortions after 21 weeks of pregnancy over the past five years.

Tuesday, lawyers with the Center for Reproductive Rights in New York City announced they were representing the rights of the patients whose records have been subpoenaed.

Wednesday, retired Judge Paul Buchanan ordered the identifying numbers of the files to be given to the prosecutor overseeing the grand jury by noon Thursday.

The district attorney’s office will use a computer to put the identifying numbers in random order, then send the numbers in batches to Tiller. Tiller must turn over the matching files to a lawyer and a doctor whom Buchanan will name.

That process will be repeated until all files are turned over. Patients’ names and other identifying information will be removed before the files are submitted.

Buchanan will hear the latest request from Tiller’s lawyers and the Center for Reproductive Rights this morning.

Meanwhile, Planned Parenthood of Kansas and Mid-Missouri filed a similar action to stop a subpoena by a grand jury petitioned to investigate its clinic in Overland Park.

The grand jury there has ordered 16 records from 2003 of abortions performed at the Comprehensive Health clinic.

A hearing is set for Feb. 15 before Johnson County District Judge Kevin Moriarty.

Both clinics say the subpoenas ask for more information than the state Supreme Court said was allowable two years ago during an investigation by then-Attorney General Phill Kline.

Kline is now district attorney of Johnson County.

Reach Ron Sylvester at 316-268-6514 or [email protected].

All content © 2008 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle