Kan. Supreme Court Hears Arguments In Case Regarding Enforcement Of Grand Jury Subpoena Of Abortion Records
April 11, 2008
The Kansas Supreme Court on Tuesday heard arguments in a case regarding the authority of a Sedgwick County, Kan., grand jury to enforce a subpoena of medical records of 2,000 women who obtained abortions after their 21st week of pregnancy at physician George Tiller’s Wichita clinic, Women’s Health Care Services, the Wichita Eagle reports.
Attorneys for Tiller asked the court to reject the subpoenas issued by the grand jury, arguing that the grand jury investigation constitutes harassment (Klepper, Wichita Eagle, 4/9). A grand jury investigating Tiller in 2007 did not issue any indictments, and the state attorney general’s office last year filed 19 misdemeanor charges against Tiller for allegedly failing to obtain a second, independent physician’s opinion on whether to conduct some abortions in 2003 (Hanna, AP/Hays Daily News, 4/8).
Kansas law allows women to abort a fetus post-viability only if two doctors certify that continuing the pregnancy could kill the woman or cause “substantial and irreversible impairment of a major bodily function.” The grand jury was convened after a petition organized by the antiabortion group Kansans for Life received sufficient signatures (Daily Women’s Health Policy Report, 2/21). In addition to the subpoena of the 2,000 records from Tiller’s clinic, the grand jury also subpoenaed edited copies of 60 medical records from Tiller’s office that are held by the state attorney general’s office, which were obtained by a former attorney general for another investigation. Attorney General Stephen Six (D) is fighting the release of all 60 records to the grand jury.
Hearing
State law does not specify conditions under which a grand jury can be deemed to have overstepped its authority, and the Kansas Supreme Court judges at the hearing Tuesday “struggled” with the question of whether the court should restrict the activities of the Sedgwick County jury, the AP/News reports (AP/Hays Daily News, 4/8). Lee Thompson, a lawyer representing Tiller, said, “All we are asking is that Tiller and his clinic enjoy the protections of the Constitution” (Wichita Eagle, 4/9). Thompson added that the possibility of repeated investigations, as well as the potential that the medical records will be turned over, will discourage women from exercising their constitutional right to obtain an abortion. Bonnie Scott Jones — an attorney for the Center for Reproductive Rights, which is representing some of the women whose records are sought by the grand jury — said the patients’ constitutional right to privacy outweighs the grand jury’s interest in investigating Tiller (AP/Hays Daily News, 4/8). David Cooper, an attorney representing the two judges who oversee the grand jury, said that the medical records “are unquestionably relevant to the investigation” (Wichita Eagle, 4/9).
Kansas Should Get Rid of Grand Jury Law, Slate Opinion Piece Says
Kansas’ 1887 law that allows grand juries to be empanelled if, “in essence, 2% of the voters in a county sign a petition,” has been used by antiabortion advocates to “challeng[e] doctors” and “potentially scar[e] patients away from clinics,” Slate senior editor Emily Bazelon writes in an opinion piece. Although courts have “generally warded off” efforts to expose women’s medical histories, antiabortion advocates in Kansas “keep trying” to obtain private medical records “because the legal wrangling” serves their interests, according to Bazelon.
The subpoenas issued by the grand jury currently investigating Tiller are “particularly unsettling” because the subpoenas are coming from a grand jury “run amok,” Bazelon writes. Given that few other states allow citizen-empanelled grand juries and that grand juries in Kansas are not held to the same ethical rules that “rein in prosecutors,” the state should consider throwing “what looks like a relic of frontier justice” in the “dust heap,” Bazelon concludes (Bazelon, Slate, 4/8).
Broadcast Coverage
NPR’s “Morning Edition” on Monday also reported on the case. The segment includes comments from Suzanne Novak, an attorney for CRR, and Cheryl Sullenger, a spokesperson for the antiabortion group Operation Rescue (Lohr, “Morning Edition,” NPR, 4/7).
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