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Posted: Tuesday, 06 May 2008 3:50PM
Abortion Grand Jury Upheld But Limited
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The state's highest court is allowing a grand jury to keep investigating one of the few U.S. doctors who performs late-term abortions but is limiting its power to subpoena his patients' records.
The Supreme Court refused to strike down the law abortion opponents used to force Sedgwick County to convene the grand jury to investigate whether Dr. George Tiller violated state restrictions on abortion. The high court also declined to quash subpoenas it issued to Tiller and Attorney General Steve Six.
But in its unanimous ruling, the Supreme Court said there are limits on the grand jury's power. The justices set guidelines, returned the case to district court and ordered the presiding judge to follow the new standards in determining whether the subpoenas should be enforced.
"The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass," Justice Lee Johnson wrote for court. "If so, the court should quash the subpoenas."
Abortion opponents generally were pleased with the ruling, though some said they had to review the court's decision thoroughly. Anti-abortion groups had feared that the Supreme Court would quash the subpoenas or even dissolve the grand jury.
"On first glance, it looks like a good ruling," said Mary Kay Culp, executive director of Kansans for Life. "We were afraid they were going to kill the rule of law along with the babies."
But a Six spokeswoman and attorneys for Tiller and a national group representing his patients praised the court for limiting the grand jury's power. They said the justices' rules should protect patient privacy.
"The lower court is pretty clearly going to have to undertake what looks to me about seven steps if it is going to provide these records or some portion of these records to the grand jury," said Bonnie Scott Jones, an attorney for the Center for Reproductive Rights, which intervened for Tiller's patients.
The grand jury targeted records from about 2,000 Tiller patients, including women who had been to the clinic but not obtained abortions, though an attorney for the panel said it would settle for far fewer documents. The grand jury also sought the edited copies of 30 records obtained by the attorney general's office in a previous investigation.
The attorney general's office already has filed 19 misdemeanor charges against Tiller in Sedgwick County, alleging that the doctor failed to obtain a second opinion for some late-term procedures from an independent physician, as required by law. But many abortion opponents believe Six should be pursuing more serious charges, which is why they forced the grand jury to convene.
Kansas is one of six states that allows residents to petition to form grand juries. It has had a law allowing the practice since 1887.
But Tiller's attorneys questioned whether the practice is constitutional. They argued that in writing such a law, the Legislature interfered with the judiciary's operations.
The Supreme Court disagreed. It noted that once the grand jury is convened, "the role of the citizenry in the grand jury process ceases."
"Any claim that the process is being abused does not follow from an unconstitutional legislative invasion of the judicial or executive function, but rather from any failure of the judiciary to exercise its oversight function," Johnson wrote.
Tiller attorney Lee Thompson said that he still believes the grand jury law is unconstitutional, but he was pleased that the court set guidelines.
"It's a very good decision recognizing that the grand jury does not have unfettered powers and the grand jury subpoenas require a degree of judicial oversight," Thompson said. "The Supreme Court, by ruling, has clearly drawn the line on its unfettered operation."
The Supreme Court said the district court must determine whether the documents sought are relevant to the grand jury's investigation, whether its subpoenas are too broad and whether complying would create too great a burden for Tiller and his clinic. It also must determine whether the subpoenas represent harassment, the justices said.
After that, the Supreme Court said, the presiding judge must protect patients' privacy. Tiller's clinic must be allowed to edit out information identifying patients, and what the court receives can be shared only with the grand jury, the justices said.
"The district court must consider the competing interests of the state and the patients," the Supreme Court said.
State Rep. Lance Kinzer, an anti-abortion Republican who has followed the case closely, said he believes the grand jury can show it's not conducting a fishing expedition.
"The fact the court said it's proper to issue subpoenas is good," Kinzer said. "I'm very pleased by the ruling and glad the grand jury can continue its work."
The cases are George R. Tiller, MD. et al v. Honorable Michael Corrigan et al. No. 99,951; Jane Doe et al v. Honorable Michael Corrigan et al, No. 99,972, and Stephen N. Six, Kansas attorney general v. the Honorable Michael Corrigan et al, No. 100,042. |
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