The Kansas Supreme Court unanimously ruled Tuesday that while a citizen-petitioned grand jury is constitutional, a group investigating a Wichita abortion clinic can’t form a grand jury to go on a “fishing expedition” for patient records.

Abortion rights supporters and opponents both applauded the ruling, which allowed a grand jury to continue investigating George Tiller’s Women’s Health Care Services clinic, but required oversight from a trial judge.

Abortion opponents have used citizen grand juries to launch investigations against clinics in Wichita and Johnson County.

The court’s order provided Sedgwick County District Court detailed instructions for how to review a subpoena for thousands of patient records from Tiller’s clinic.

Troy Newman of Operation Rescue West, one of three abortion opponents who helped collect more than 7,000 signatures to impanel the Wichita grand jury, said he was pleased the court upheld the process.

“Tiller will eventually be brought to justice,” he said. “I believe that if he were truly innocent, he’d be doing everything he could to prove that. But he’s doing what guilty men do — throwing up road blocks and red herrings.”

Lawyers for Tiller and his patients expressed satisfaction with the limits put on a grand jury seeking nearly 2,000 of their medical records.

“The Kansas Supreme Court today put the brakes on runaway grand juries,” said Dan Monnat, a Wichita lawyer representing Tiller.

Kansas is one of only a handful of states that allows residents to petition for a grand jury investigation into criminal matters.

In January, the Tiller grand jury demanded records of every woman at least 22 weeks pregnant who had received or sought an abortion at the clinic for the past five years.

But Sedgwick County Senior District Judge Paul Buchanan did not provide detailed enough findings when he granted the subpoena, the court ruled.

“Judge Buchanan’s rulings from the bench were rather cryptic,” said the opinion written by Justice Lee Johnson of Caldwell.

Johnson’s opinion drew distinctions between federal and Kansas grand juries. A federal prosecutor, the court said, is “a licensed attorney subject to professional and ethical obligations” to make sure a grand jury follows the law. Kansas does not provide for that.

A judge, then, must oversee state grand juries to make sure they don’t overstep their bounds.

“The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition,” the ruling said.

The state Supreme Court, for example, questioned why grand jurors would investigate Tiller’s procedures for granting late-term abortions, when he already faces similar charges in a case brought by the Attorney General’s office. That case awaits a decision by another Sedgwick County district judge, Clark Owens.

“The court even asked, why would you need records of every woman who did not have an abortion?” said Bonnie Scott Jones, a lawyer from the Center for Reproductive Rights in New York, who represents Tiller’s patients.

Lawyers for the clinic have said it would take 5,000 working hours, at a cost of some $250,000, to remove unnecessary information. Buchanan must determine if that provides an “undue burden” for producing the records.

If the judge makes that finding, then he has to take steps to ensure the protection of patient privacy.

Buchanan has to appoint an independent lawyer and doctor to review the records to further remove any information not relevant to the grand jury’s investigation.

The judge must also fashion an order to ensure that patient information going into the grand jury room doesn’t come out. That excludes any records a prosecutor would need to file criminal charges.

The Johnson County grand jury did not find any illegal activities at a clinic run by Planned Parenthood earlier this year.

The Wichita grand jury has been waiting on Tuesday’s ruling to proceed.

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

By RON SYLVESTER

A Johnson County grand jury refused to indict an abortion clinic in Overland Park this week and called for the state to reconsider a law that allows citizens to call for such investigations.

That grand jury was empaneled in the same manner as one investigating abortion provider George Tiller in Wichita – through a petition of registered voters.

Grand juries are a part of the justice system few people understand. It’s even more complicated in Kansas, because of a 120-year-old law that allows citizens to call grand juries through petitions.

Grand juries meet behind closed doors and act like police. They investigate crimes and decide if charges should be filed.

But Kansas is one of only six states that allow citizens to call for grand juries, as they did in Johnson County and Wichita through petition drives led by anti-abortion groups.

Nebraska, North Dakota, Oklahoma, New Mexico and Nevada have similar laws.

Tiller’s lawyers say it should be illegal here, as it is in most other states.

They’ve asked the Kansas Supreme Court to strike down an 1887 law that anti-abortion groups used to order the empaneling of a grand jury by petition.

Such petitioning for grand juries, the lawyers argue, interferes with the duties given to prosecutors and law enforcement, who operate under the executive branch of government. It disrupts the balance of powers provided the government in the U.S. Constitution, they say.

On Feb. 15, Attorney General Stephen Six asked the state Supreme Court to review a subpoena for abortion records to his office from the Wichita grand jury investigating Tiller.

On Feb. 25, two Sedgwick County judges defended the grand jury process.

This week, the Johnson County panel said in a statement: “It is the feeling of this grand jury that the current statute that addresses the formation of a grand jury be evaluated as to evidence required to call the grand jury.”

The Kansas Supreme Court scheduled oral arguments for April 8.

The grand jury’s role 

Grand juries usually aren’t so controversial.

They were written into the Fifth Amendment of the U.S. Constitution and are required to indict people on federal charges for serious crimes.

All grand juries are picked from the same pool as those for criminal and civil trials, summoned from driver’s license and voter registration records and sworn in by a judge.

Federal grand juries are run by prosecutors working for the U.S. government.

“Grand juries, whatever they were conceived of originally, they’ve very much become an investigative tool of the prosecutors, especially in the federal system,” said Steve McAllister, professor of law at the University of Kansas.

Some argue prosecutors too often influence grand jurors.

The chief judge of New York state in 1985 suggested grand juries be abolished, claiming in a now-infamous quote that a skilled prosecutor could convince a grand jury to “indict a ham sandwich.”

But in Kansas, citizen grand juries are in charge, although they have a prosecutor available as a legal adviser.

Kansans for Life reported that it spent $20,000 in copying, mailing and other costs to collect about 7,000 signatures needed to convene the current grand jury in Wichita.

“Here, it’s citizens who want to do something, and the local prosecutor may not want this at all,” McAllister said. “So it’s convened and it sort of takes on a life of its own.”

The law in Kansas doesn’t specify that a prosecutor has to pick up an indictment by a citizen grand jury. It simply says that the indictment must be filed with the court.

“At the end of the day, it’s not clear who is accountable to the grand jury,” McAllister said.

Past and present meet 

The law empowering citizen grand juries has its roots in frontier justice, says an expert on Kansas history.

It was designed to give the public a voice in government decisions during the Populist movement of the 1880s, said Craig Minor, a professor of history at Wichita State University.

“They thought there were too many checks on the popular will of the people,” Minor said.

Some 120 years later, social conservatives say citizens need that kind of control again because the government has ignored their cries to enforce Kansas’ late-term abortion laws.

“There are serious improprieties and appearances of improprieties, and we’re looking for the grand jury to take an independent look at these laws,” said Troy Newman, leader of Operation Rescue.

Operation Rescue and other anti-abortion rights groups don’t like that Sedgwick County District Attorney Nola Foulston blocked efforts in 2006 by then-Attorney General Phill Kline to file criminal charges against Tiller.

Foulston said Kline had no jurisdiction in her district. A judge agreed.

Dan Monnat, a Wichita lawyer representing Tiller, said the Wichita grand jury went too far in January when it subpoenaed five years’ worth of clinic records for 2,000 women who had sought abortions after their 21st week of pregnancy.

Calling the subpoena an invasion of privacy, Tiller’s attorneys asked a judge to stop the proceedings. Retired Judge Paul Buchanan ordered the records produced. Tiller’s lawyers appealed to the Kansas Supreme Court, which has halted the subpoena while it reviews the case.

That includes asking the state’s highest court to review the constitutional nature of citizen grand juries.

But Sedgwick County Chief Judge Michael Corrigan and Buchanan argued in papers filed last month with the Supreme Court that grand juries aren’t required to return an indictment.

That is among the strengths of the grand jury system, the judges say. It removes the grand jury from influence by the special interests that may have petitioned for it.

That’s what the Johnson County grand jury did with the Planned Parenthood case this month.

The Sedgwick County judges also noted that one function of a grand jury is to exonerate the innocent.

They point out that the grand jury asked for records from Tiller’s Women’s Health Care Services clinic, where some of the women did not ultimately obtain abortions.

“In other words, the subpoena sought records which would reveal that…Tiller and WHCS complied with the law,” wrote David Cooper, a Topeka attorney representing the judges.

Six says he wants the Supreme Court to decide if the subpoena interferes with patients’ right to privacy.

Chief Justice Kay McFarland put the attorney general’s subpoena on hold–as she had with the order for Tiller–until the justices can sort out the case.

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

By RON SYLVESTER

TOPEKA – The Kansas Supreme Court said Friday that it will hear arguments April 8 in three cases challenging subpoenas from a Sedgwick County grand jury for patient records from physician George Tiller’s Wichita abortion clinic.

The court also kept its earlier order blocking enforcement of the subpoenas and ordered the two judges handling the grand jury proceeding to not issue additional subpoenas for patient records.

It’s rare for the court to have a special session for a single case. The last time that happened was when it considered school finance legislation in 2006. Normally, the court considers cases on regularly scheduled hearing dates.

The court consolidated the challenges by Attorney General Stephen Six, Tiller’s clinic and attorneys representing clinic patients, since they made similar arguments and are seeking to have the subpoenas quashed by the justices.

Chief Justice Kay McFarland gave no indication in the order when the court might rule.

“We are very pleased that the highest court of the state views the privacy rights of women patients so protectively as to undertake a careful examination of the important issues involved,” said Dan Monnat, one of the attorneys representing the clinic.

Likewise, Bonnie Scott Jones, Center for Reproductive Rights attorney representing two patients, said she was glad the court is going to hear the cases so soon.

“It seems to me they are trying to address this matter promptly and that is appropriate,” she said. “These patients, many have obtained abortions in tragic circumstances so they are devastated they may have to relive these intimate times in the company of the grand jury.”

Kansans for Life, the state’s largest anti-abortion group, on Monday asked the court for permission to file a friend of the court brief. But the justices by Friday hadn’t given permission to do that.

“As long as it has gone this far, this will give our side a chance to display in open court the arrogance of this late-term abortionist’s thinking that he is above the law,” said Mary Kay Culp, the group’s executive director.

Culp said she’s concerned the grand jury’s 90-day life will expire the same day as the court hearing. But the grand jury can be extended by the judges overseeing it.

Abortion opponents accuse Tiller of violating a 1998 law restricting late-term abortion. His attorneys repeatedly have said such allegations are unfounded.

The grand jury subpoenaed the medical files of about 2,000 women, including some who decided against having abortions. It also subpoenaed information about current and former employees and referring physicians.

It’s seeking all health care records of patients who aborted a fetus determined to be 22 weeks or older from July 1, 2003, through Jan. 18 at Tiller’s clinic, Women’s Health Care Services. The grand jury also wants the health care records of patients who did not have abortions but were at least 22 weeks pregnant when they consulted with a physician at the clinic.

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

Associated Press

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.

By RON SYLVESTER
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.

By RON SYLVESTER
The Wichita Eagle

Marking the 35th anniversary of Roe v. Wade, a small group gathered Tuesday morning at George Tiller’s clinic and called the doctor a courageous man for giving women a choice.

An Operation Rescue truck sat parked in the background, featuring pictures of aborted fetuses. That group has been pushing for criminal charges against Tiller.

Wichita Stands with Dr. Tiller, described by spokeswoman Diane Wahto as a coalition of abortion-rights groups, lauded Tiller for his service to women despite facing what they termed harassment, intimidation and violence from abortion opponents.

The group held a short news conference, Wahto said, to remind others that challenges to Roe v. Wade “will never stop women from seeking control over their own bodies.”

On Monday, Troy Newman, the leader of Operation Rescue, held a news conference accusing prosecutors of not enforcing laws governing late-term abortions.

Tuesday, Wichita lawyer Dan Monnat, who has represented Tiller in grand jury investigations into his practice at Women’s Health Care Services, said Roe v. Wade “might just be pages in a dusty law book” if not for people such as Tiller.

Doctors such as Tiller, Monnat said, use the “power of Roe v. Wade to help women with excruciating decisions.”

Lee Thompson, another Tiller lawyer, pointed to a line between the driveway to Tiller’s clinic on East Kellogg Avenue and a public street.

“This is the front line for the battle of abortion in America,” he said.

Operation Rescue planned a candlelight vigil and prayer service at Tiller’s clinic to mark the anniversary.

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

By DEB GRUVER
The Wichita Eagle

Kansas City Star and Wichita Eagle staff reports

The two sides in the nation’s debate on abortion will mark today’s 35th anniversary of Roe v. Wade with their usual rallies and speeches.

But this year, there are signs that not all is the same on the national or local level.

The newly configured U.S. Supreme Court rejected a legal challenge in April to the federal Partial-Birth Abortion Ban Act, allowing the law to go into effect for the first time since it was signed by President Bush in 2003. Some abortion-rights supporters fear the landmark ruling is the first step toward overturning the 1973 law that established a constitutional right to abortion.

In Kansas, grand juries seated through citizen petitions are investigating Planned Parenthood of Overland Park and abortion doctor George Tiller of Wichita.

And a new national study from the Guttmacher Institute shows abortions have dropped to their lowest level since 1974.

Abortion opponents are pleased with what they see.

“It’s been a long fight and a very hard-fought fight on both sides,” said Mary Kay Culp, executive director of Kansans for Life. “So I am encouraged, but I’m always cautious” about predicting what the future holds.

ProKanDo director Julie Burkhart, whose group supports abortion rights, finds the high court ruling and the grand jury investigations disheartening.

“Roe v. Wade is still the law of the land and has been for 35 years,” Burkhart said, “but we have seen a constant chipping away” by abortion opponents.

The partial-birth abortion ban sets the stage for Roe v. Wade to be overturned, she said, or at least stripped of many of its protections. The ban lacks an exception to protect a woman’s health, according to its interpretation by Roe v. Wade supporters.

Status of abortion rights 

Burkhart and the Kansas organizer for the National Organization for Women say the chipping away of reproductive rights is obvious in Sedgwick and Johnson counties, where grand juries are in session.

NOW organizer Marla Patrick of Lindsborg said abortion opponents have taken an “antiquated” Kansas law that allows citizens to seat grand juries and used it to harass Tiller and Planned Parenthood.

Abortion opponents have put a lot of roadblocks in Kansas and elsewhere, Patrick said, but she does not think they will ever succeed in criminalizing abortion.

However, Troy Newman, leader of Operation Rescue, believes that the picture of abortion is much different today than it was in the early 1990s.

“Honestly, the pro-life movement has never been sitting in a better position to win this battle,” Newman said.

The grand jury now meeting in Wichita has helped keep pressure on Tiller when prosecutors and lawmakers did not, he said.

“A grand jury, hopefully, would provide an independent investigation, because the prosecutors in this state are not prosecuting the law, on its face,” Newman said.

Dan Monnat, a Wichita lawyer who represents Tiller, said that local and state prosecutors have found little wrong with the doctor’s practices, as has the state Board of Healing Arts.

“Unfortunately, there are a small number of extremely loud people who have organized a no-holds-barred campaign designed to take these rights away from women,” Monnat said.

The abortion controversy remains at center stage in Wichita because Tiller is one of the few in the country who performs late abortions, he said.

A new tactic 

Monday, on the eve of the 35th anniversary of Roe v. Wade, Operation Rescue announced that it was starting a new tactic.

Newman, and Cheryl Sullinger, also of Operation Rescue, have been taking pictures of some of the women, who they think look like they’re in their late stages of pregnancy, entering Tiller’s clinic.

Monday, Operation Rescue posted pictures of women on its Web site. Their faces were obscured.

Newman said these are patients of Tiller seeking to abort their pregnancies.

“It’s an abortion clinic,” he said. “They perform abortions.”

Not every woman who goes to into the Women’s Health Services clinic goes there for an abortion, Monnat said. And posting their photographs publicly puts them in danger.

“You and I may not be able to recognize the women, but they now have to shoulder the burden of worrying about whether a relative, a pastor, a teacher, an abusive partner or a work colleague may recognize them as they entered doctor Tiller’s clinic on a specified date,” Monnat said.

“These women, if indeed they are even patients, did absolutely nothing wrong and did nothing to justify being subjected to public scrutiny,” Monnat said. “They simply, at most, sought health care, to which they are entitled under the laws of the United States.”

The demonstrations continue today.

A group of Tiller’s supporters plan a public demonstration from 7 to 10 a.m. today in front of Tiller’s clinic, 5107 E. Kellogg.

Operation Rescue will hold a candlelight vigil and prayer service at 6 p.m. today outside the clinic.

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

A citizen-petitioned grand jury investigating Wichita abortion provider George Tiller has heard from abortion opponents who want to close Tiller’s clinic, according to a spokeswoman for an anti-abortion group.

Jurors this week heard from David Gittrich, state development director for Kansas for Life, and Troy Newman, president of Operation Rescue. Grand jury testimony is secret, and the two anti-abortion activists have sworn an oath not to discuss their testimonies.

Operation Rescue spokeswoman Cheryl Sullenger said Gittrich testified Monday and Newman testified Wednesday. She showed the Associated Press the contents of binders the group was preparing for each grand juror before Newman’s testimony and said later the grand jury allowed the binders in.

The binders — which included dated, blurred photographs of women purportedly in their late pregnancies — were designed to prompt the grand jury to subpoena their medical records, Sullenger said. The medical records obtained earlier by former Attorney General Phill Kline were of 2003 abortions, and the group wants the grand jury to look at late-term abortions still being performed at the clinic.

“We are not going to have prosecution of late-term abortion without them subpoenaing medical records,” Sullenger said.

Tiller’s defense attorneys, Lee Thompson and Dan Monnat, issued a statement Friday denouncing the grand jury investigation as a “grandstand for anti-choice zealots” when told by the AP of the testimony and binders.

“It’s hard to think of anything more telling of the true nature of this grand jury proceeding than having the self-appointed leader of Operation Rescue testify. What is supposed to be a legal proceeding has now devolved into a bonfire for religious and political zealots by which to preach against women’s right to abortion,” the attorneys said in a joint statement.

Tiller’s attorneys contend the grand jury has been “poisoned” by Newman’s rhetoric and anything it does now lacks credibility and any semblance of a fair and impartial deliberation.

Gittrich declined to discuss his grand jury testimony other than to tell the AP he provided jurors with his own documentation. “All I can say is they seemed a pretty conscientious group of people seeking the truth,” he said.

Among the contents of the binders Newman gave the grand jury were copies of the thwarted criminal complaint filed by Kline against Tiller, as well as information from Paul McHugh, the former director of the psychiatry department at Johns Hopkins University in Baltimore. Kline hired McHugh to review patient records before that case was dismissed on jurisdictional grounds.

The binders also included copies of the citizen petition that formed the grand jury, showing a request for an independent prosecutor to lead the investigation. Abortion opponents had demanded a special prosecutor because of what they claim is Sedgwick County District Attorney Nola Foulston’s failure to investigate Tiller’s abortion practices.

Also in the binder were photos of women apparently in the late terms of their pregnancies. The photos were taken by telephoto lens as the women went into the clinic. The photos were dated from Sept. 4 to Nov. 13 of last year. The women’s faces were blurred in the photos to protect their identities.

“We can feel sorry for these women because of their situations, but it is not legal,” Sullenger said. The group plans a news conference Monday to publicly release the photographs.

“That Operation Rescue would make public photos of women seeking health care, shows its utter disregard for the privacy rights of women and demonstrates that it will stoop to any level to forward its political agenda,” Tiller’s defense attorneys said.

Kansas law restricts abortions performed after the 21st week of pregnancy, when a fetus can survive outside the womb. In those cases, two doctors must conclude that a woman faces death or “substantial and irreversible” harm to a major bodily function.

Sullenger conceded the photographs given to the grand jury do not prove the late-term abortions performed on those women were illegal.

“What we are doing is drawing a circumstantial-evidence case,” Sullenger said.

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

By ROXANA HEGEMAN
Associated Press

Before a Sedgwick County judge swore in a grand jury Tuesday, both sides of the investigation into a Wichita abortion clinic cried foul.

Retired Judge Paul Buchanan declined to hear attempts by both sides to impede the process of empaneling a 15-member grand jury on a petition from abortion opponents to investigate the Women’s Health Care Services.

Kansans for Life and Operation Rescue are upset that the prosecutor in charge of guiding the grand jury works for Sedgwick County District Attorney Nola Foulston, a Democrat.

On Tuesday, they asked Buchanan to dismiss Foulston’s office and appoint special counsel.

Ann Swegle, a deputy district attorney under Foulston, is the prosecutor of record for the grand jury, according to the instructions given to the panel Tuesday.

Although grand jury investigations are closed, some of the filings, such as the instructions, are public.

Meanwhile, the attorneys for abortion provider George Tiller have filed repeated motions — from calling the grand jury “a witch hunt” to trying to prevent it from being empaneled.

Tiller is a doctor who performs late-term abortions. The anti-abortion groups want the grand jury to charge Tiller with violating state abortion laws.

Buchanan declined to hear arguments on the motions by either side, after Swegle pointed out that the law provides for no outside parties to make pleadings during a grand jury hearing.

Buchanan explained to jurors Tuesday that they, not the government, were in charge.

“You are not obliged to investigate any matter you choose not to investigate,” the jury’s instructions read.

The public has been able to petition to seat grand juries in Kansas since 1887. Prosecutors answer legal questions and help produce witnesses and evidence sought by the jurors.

That differs from federal law, under which prosecutors decide which cases to bring to a grand jury.

“State grand juries don’t need the signature of a prosecutor to file charges,” Buchanan told The Eagle.

The leader for Operation Rescue said he hoped for an aggressive prosecutor for this grand jury. That’s why Troy Newman said his group and Kansans for Life sought to disqualify Foulston’s office.

“We have a serious situation of the appearance of impropriety,” Newman said Tuesday.

Anti-abortion groups see Foulston as aligned with abortion rights supporters. Foulston has said the duty of her office is to follow the law.

Anti-abortion groups empaneled a grand jury in the spring of 2006 to look into the death of a woman who had visited Tiller’s clinic. The grand jury brought no charges in the woman’s death, echoing the findings of state medical authorities. The groups publicly blamed Swegle for not pushing the charges.

That fall, then-Attorney General Phill Kline tried to file criminal charges against Tiller in Wichita. Foulston pointed to a state law that said Kline needed her permission to file a case in her district. A district judge sided with Foulston and dismissed the charges.

“It’s all about abortion politics and abortion money,” Newman said. “The public has lost trust in this DA”

Tiller’s lawyers, meanwhile, said there would be no investigation without the push from the two anti-abortion groups.

“Hopefully the grand jurors will very quickly see that this proceeding is a political witch hunt brought by a few people who disagree with a woman’s constitutional right to choose, decide not to squander taxpayer money on it and go home,” said Wichita attorney Dan Monnat, who represents Tiller.

Grand juries may determine their own schedules but have 90 days in which to conduct their investigation. If they need more time, a judge has to approve it.

Tiller still faces 19 misdemeanor charges filed in June, accusing him of having an improper business relationship with another doctor who gave second opinions on late-term abortions at the clinic.

Both sides in that case are awaiting a judge’s ruling on a motion by Tiller to dismiss those charges.

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

By RON SYLVESTER