Saving a Last Resort

With anti-abortion forces bearing down on him, Dr. George Tiller fights for his patients’ privacy -- and their lives.

was more than 22 weeks pregnant in 2003 when she was told the baby she was
carrying had a rare and severe fetal abnormality that would cause it to live in
a vegetative state, if it survived at all. In disbelief, she consulted with
several additional doctors and specialists hoping there had been a mistake;
this was a long-hoped-for pregnancy. But in the final analysis, with the
support of her partner, she decided she would terminate.

For women
like Mary (not her real name) who are diagnosed with severe fetal anomalies
late in their pregnancies, or whose late-term pregnancies threaten their
health, there are few doctors and clinics willing to perform later-term
abortions. In order to get the medical care she needed, Mary had to travel from
her home in the Midwest to Wichita,
Kan., where she was seen by Dr.
George Tiller of Women’s Health Care Services.

received "compassionate" care at the clinic, Mary was distressed to learn
earlier this year that a Wichita grand jury,
investigating whether Tiller had violated Kansas abortion laws, had subpoenaed the
private medical records of approximately 2,000 patients who had visited Women’s
Health Care Services over the previous four and a half years. The grand jury
had been convened as a result of a petition drive by Kansans for Life and the
extremist anti-abortion group Operation Rescue, who gathered more than the
roughly 4,000 signatures required under an 1887 state law that allows citizens to empanel grand juries.

Center for Reproductive Rights, a nonprofit legal advocacy group, now
represents the 2,000-some women patients in their efforts to halt the grand
jury’s access to their medical records. "This is nothing more than a fishing
expedition spurred on by anti-choice zealots," says Bonnie Scott Jones, the
Center’s lead attorney on the case. "It has nothing to do with any legitimate
investigation of possible crimes-it is simply a gross and cruel intrusion on
extremely private moments in the lives of these women and their families."

Mary and
several other former patients have submitted official affidavits in support of
the Center’s lawsuit to quash the subpoena, fearing that their personal
records, once placed in the hands of a grand jury, could also find their way to
the general public. And they have good reason for concern: During a prior grand
jury investigation of Tiller, evidence was disclosed by a member of the grand jury
to Operation Rescue. Having already endured "highly aggressive" harassment by
anti-abortion protesters when she visited Tiller’s clinic, Mary worries about
the safety of herself and her family if her identity becomes known. "I am being
forced to open these wounds in a new and fresh way, to relive it like this,"
she explains in her affidavit.

Rescue is also trying to insert itself into the current grand jury
investigation: When the organization’s president, Troy Newman, testified before
the grand jury, he offered photographs of patients taken with a high-powered
lens as they entered Tiller’s clinic. He says he urged the grand jury to
subpoena and examine Tiller’s patient records from a four year period, between
2004 and 2007. Shortly after his testimony, the grand jury issued its subpoena
of the patient records.

latest grand jury is part of a new strategy of anti-abortion ideologues to use
the court system as a tool of harassment and abuse of Dr. Tiller and other Kansas abortion
providers," says Laura Shaneyfelt, of Monnat & Spurrier, one of Tiller’s
lawyers. She points out that previous attempts to prosecute him for violations
of Kansas abortion law have been resolved in his favor-but his opponents appear
willing to stop at almost nothing to drive Tiller out of practice, in court or
out of it.

In 1985,
Tiller’s clinic was bombed, causing $100,000 in damages. In 1991, it was the
target of Operation Rescue’s "Summer of Mercy" siege for more than six weeks; U.S. Marshals
were eventually ordered in by the district court judge when local police failed
to keep the clinic open. In 1993, Tiller survived an assassination attempt by
an Army of God follower who had participated in Operation Rescue’s 1991
blockades, suffering gunshot wounds in both arms. His clinic has also been
vandalized and his staff tracked to their homes, their garbage rifled through.

intense is the focus on Tiller that Newman moved to Wichita
from Southern California in 2002 with the
declared intention of closing down the clinic. Former Kansas Attorney General
Phill Kline, an ardent opponent of abortion, has been on a similar mission. For
more than two years, Tiller was relentlessly investigated by Kline, who
ultimately filed 30 criminal counts alleging Tiller illegally performed later
abortions. All the charges were eventually dismissed by a state court judge-and
now Kline has been criticized for
allegedly withholding exculpatory evidence when he filed his charges.

Kline was
defeated in his re-election bid, but his successor
charged Tiller with 19 new misdemeanors, claiming that he failed to follow Kansas law when securing
the second opinion required for later-term abortions. Each charge carries a
maximum sentence of one year in jail and a $2,500 fine, and could cost Dr.
Tiller his medical license.

attorneys maintain he is innocent, and also that the Kansas State Board of
Healing Arts (the state’s medical oversight body) knew and had approved of his
practices in regard to second-opinion physicians.

his attorneys believe that the statute requiring a second Kansas physician’s approval of an abortion
violates the federal and state constitution since it infringes on a physician’s
right to practice medicine and places an unreasonable burden on a woman’s right
to access a lawful abortion. "Every challenge to a state law mandating a second
approving physician has been held unconstitutional," says Shaneyfelt.

Dr. Tiller remains the primary target of anti-abortion extremists in Kansas, Operation Rescue, along with other anti-choice
groups, also gathered enough signatures to empanel a grand jury to investigate
the Planned Parenthood clinic in Overland Park,
a suburb of Kansas City.
Following a court fight over patient records similar to that in the Tiller
investigation, that grand jury disbanded in early March, concluding there was
no evidence of criminal wrongdoing.

the relentless Phill Kline, now the appointed district attorney for Johnson
County (which includes Overland Park), has recently charged the Planned
Parenthood clinic with 23 felonies and 84 misdemeanors, alleging the clinic
falsified records and performed illegal late-term abortions. Planned Parenthood
is vigorously contesting these charges.

the Kansas State Supreme Court has agreed to hear arguments about the records
subpoenas from Tiller’s office in April; it’s unclear when it will make a
ruling. If the anti-abortion forces succeed in their mission to close down
Tiller, the impact will be far from local. It will reverberate around the
country, as women like Mary will lose one of the last places they can turn to
for help.

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This article first appeared in the Spring issue of Ms. magazine, available on newsstands and by subscription from