A Sedgwick County District Court judge heard arguments, but did not rule, on whether the prosecution of a Wichita abortion provider is constitutional.

A lawyer for Wichita abortion provider George Tiller began presented arguments this afternoon, asking a Judge Clark Owens to dismiss the misdemeanor criminal charges against the doctor.

The state has charged Tiller with using a doctor who wasn’t sufficiently independent to handle referrals for late-term abortions performed in his clinic.

Lee Thompson told Owens that the Kansas law requiring doctors to get another referral before performing late-term abortions puts an “undue burden” on women, violating the U.S. Constitution.

Kansas law requires doctors such as Tiller to get referrals from other doctors within the state in order to perform abortions late in a woman’s pregnancy.

Thompson said Tiller gets referrals from doctors all over the nation, sending patients to get abortions because of dangers to their health .

“You can have a referral from the world’s foremost expert, but when you come to Kansas, it doesn’t count,” if the referring doctor is out of state, Thompson said.

“This law puts a whole Byzantine set of hurdles, which serve no logical purpose except to keep a woman from exercising her constitutional right to seek an abortion,” Thompson said.

Thompson said the doctor who provided the referrals worked out of Tiller’s office only for security reasons brought on by threats from abortion opponents.

Jared Maag, an assistant Kansas attorney general, said that if the law limited a woman’s right to obtain an abortion, then Tiller couldn’t operate.

“The number of abortions done belie his arguments,” Maag said.

“He performs thousands,” Maag added, referring to Tiller.

Maag said the question is simple: Did Tiller have an illegal association with a doctor who gave concurring medical opinions on the health status of women receiving late-term abortions in Wichita?

“We have evidence of that,” Maag said. “And that’s something a jury should decide.”

Through his lawyers, Tiller also asked Judge Owens to allow him to have a panel of 12 jurors. Usually jury trials in misdemeanor cases get a panel of six.

In the second part of the hearing, Dan Monnat argued on Tiller’s behalf that a Kansas law dictating that misdemeanor defendants receive only six jurors defies the state’s constitution.

Monnat said the state’s Supreme Court has said that Kansas adopted its bill of rights from Ohio’s constitution in 1859. But Ohio’s high court had ruled six years earlier that all criminal defense must have a jury of 12.

Arguments by the state that the U.S. Supreme Court had already approved six-member juries for misdemeanors, “isn’t comparing apples and oranges, but rather colonists and cowboys,” Monnat said.

“We don’t care what the framers of the U.S. Constitution meant,” Monnat said. “What we’re concerned with is what the framers of the Kansas constitution meant.

“You can also say we’re comparing Buckeyes and Jayhawks,” Monnat said.

Maag, however, argued that Kansas did pattern its bill of rights after the U.S. Constitution. Maag also pointed out that the Ohio case of 1853 has been overruled by that state’s Supreme Court.

“So Ohio does not have to be bound by that case, but Kansas does?” Maag said.

Maag said that even looking to common law history doesn’t point to any specific numbers for the “right to trial by jury.”

“It’s not set in stone; it never has been,” Maag said. “It’s up to the states to decide, and we have a law that does that.”

Judge Owens said he expected to take several weeks to rule on the constitutionality issue.

Reach Ron Sylvester at 316-268-6514 or [email protected]. All content © 2007 THE WICHITA EAGLE and may not be republished without permission.