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Parsing abortion law

- The Washington Times - Tuesday, July 10, 2007

A long-running legal and political battle over abortion that has drawn national attention took a new turn last month, when Kansas Attorney General Paul Morrison charged Dr. George Tiller with 19 misdemeanor counts of unlawful late-term abortion.

when Kansas Attorney General Paul Morrison charged Dr. George Tiller with 19 misdemeanor counts of unlawful late-term abortion.

However, Mr. Morrison — a Democrat elected last year with the support of pro-choice activists — said he will not reinstate any of the 30 charges originally filed in December by his Republican predecessor, Phill Kline.

Mr. Morrison charged that Dr. Tiller illegally used a physician who was not independent of him as a second referral. Kansas law requires two financially and legally independent physicians to sign off on late-term abortions.

He called the 19 counts "technical violations." Ashley Anstaett, a spokeswoman in the attorney general's office, said the description simply means that laws had been violated, not that Mr. Morrison doesn't take the charges seriously.

Ms. Anstaett said Mr. Kline withheld exculpatory evidence from an affidavit, but conceded that Mr. Kline included evidence that could be exculpatory as an attachment to the affidavit. She said the judge "probably" saw the attachment.

When Mr. Morrison announced the new charges June 28, he said Mr. Kline's actions were based on "personal political beliefs and not the law as it is written."

Kansas' late-term abortion statute, which became law in 1998, states: "No person shall perform or induce an abortion when the fetus is viable unless such person is a physician and has a documented referral from another physician not legally or financially affiliated with the physician performing or inducing the abortion and both physicians determine that: (1) The abortion is necessary to preserve the life of the pregnant woman; or (2) A continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman."

Mr. Morrison and Mr. Kline disagree on the interpretation of this law. Although precedent calls for mental health to be considered a "major bodily function," Mr. Kline said Dr. Tiller used "single-episode" cases of depression — some resulting from missed activities such as rock concerts and rodeos — as justification for late-term abortions.

Mr. Kline said it is unlawful for a doctor to perform a late-term abortion if there will not be "a substantial and irreversible impairment of a major bodily function," even if two physicians say there would be. Mr. Morrison says the law requires only that two doctors agree that there will be "a substantial and irreversible impairment of a major bodily function."

Ms. Anstaett would not comment on whether Mr. Morrison thought Dr. Tiller had been honest in his rationale for a late-term abortion. She said this determination is the responsibility of the Kansas Board of Healing Arts and not the attorney general.

Executive Director Lawrence Buening said the Kansas Board of Healing Arts has never been asked to determine whether "single-episode" bouts of depression are a legal justification for late-term abortion. Now that Dr. Tiller faces criminal proceedings, he said, it is unlikely the board will take action without a request from the attorney general's office or a judge.

Doctors performing late-term abortions are required to file paperwork with the Kansas Department of Health and Environment stating the reason and basis for the procedure. Dr. Tiller is accused of restating language from the statute as the basis for late-term abortions rather than providing a description of the specific nature of the "substantial and irreversible impairment of a major bodily function."

Mr. Kline said Dr. Tiller failed to report the justification for the late-term abortions. He said the Legislature intended the justification to be reported in case the Kansas attorney general needed to review it.

Mr. Morrison released a statement that said, "After a thorough consultation with the Kansas Department of Health and Environment ... Dr. Tiller appropriately reported the reason for each late-term abortion on a viable fetus as required and directed by KDHE. Further, KDHE accepted the form as Tiller filled it out and also offers assistance to providers in filling out the form correctly."

Joe Blubaugh, director of communications for the health department, said the agency "simply collects information" and provides procedural assistance.

"We don't make a judgment on the data that's collected," Mr. Blubaugh said.

Cheryl Sullenger, senior policy adviser of the pro-life group Operation Rescue, said the records showed that Dr. Tiller was "operating an illegal abortion racket designed to circumvent the law while giving the appearance of legitimacy."

Mr. Morrison used "the weakest of the charges that could have been brought against Tiller," she said.

"There is ample evidence to charge him with additional counts. ... The current 19 charges allow Tiller to continue committing illegal abortions for frivolous reasons in violation of the law," she said.

Mr. Kline said either house of the Kansas Legislature could force the attorney general to bring additional charges against Dr. Tiller. House Speaker Melvin Neufeld, a Republican, said he was pleased that Mr. Morrison brought charges. A spokesman for Mr. Neufeld said the Republican-controlled Legislature would look at proposed changes to Kansas's late-term abortion law when it reconvenes in January.

The 19 new charges are the result of Mr. Morrison's investigation using medical records subpoenaed by Mr. Kline. During the 2006 campaign, Mr. Morrison attacked Mr. Kline for using medical records to bring charges.

Mr. Kline claimed vindication.

"Kansas law needs to be enforced," said Mr. Kline, and Mr. Morrison "needs to do his job."