Government

Doctor fights abortion law, criminal charges

The Kansas statute requires physicians to obtain a referral from an independent doctor before they can perform a late-term abortion.

By — Posted Sept. 17, 2007

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A Wichita, Kan., family physician is challenging a state law that requires a second opinion for late-term abortions, saying it interferes with doctors' medical judgment and restricts women's access to the procedures.

In June, Kansas Attorney General Paul J. Morrison criminally charged George Tiller, MD, with violating a 1998 statute that prohibits physicians from performing late-term abortions without first getting a documented referral from a second doctor "not legally or financially affiliated" with the physician doing the procedure.

Both doctors must agree that the abortion is necessary to preserve the mother's life or that continuing the pregnancy will cause her "substantial and irreversible impairment of a major bodily function." The law includes an exception for medical emergencies.

The state alleges that Dr. Tiller and family physician Ann K. Neuhaus, MD, were not "independent" when they consulted on 19 different late-term abortion procedures. Dr. Neuhaus is not being charged in the case. Both doctors have publicly denied the allegations. Dr. Tiller's attorney declined to comment for this story. Dr. Neuhaus could not be reached for a response.

But in court documents, Dr. Tiller argues that the law is "an unconstitutional limitation on a physician's judgment and an undue burden on a woman's rights" to abortion.

He points to a 1973 Supreme Court decision in Doe v. Bolton, in which justices struck down a Georgia law requiring three doctors and a hospital staff committee to approve an abortion procedure, except in cases of rape or immediately life-threatening injury to the pregnant woman. The high court said the law infringed on a physician's right to practice medicine and patients' right to be safeguarded by their doctors.

Dr. Tiller also claims that the Kansas statute is vague. Doctors are subject to criminal sanctions under the measure, but without requiring any proof of criminal intent, Dr. Tiller's brief states. Doctors can face up to one year in prison and $2,500 in fines per violation. He is asking the Sedgwick County trial court to overturn the law.

State officials, on the other hand, have pledged to defend it. They declined to comment further.

In court papers, the state contends that the law is straightforward. The term "legally affiliated" denotes a formal business relationship, such as doctors who are part of the same corporation or who practice together in a partnership, the state's brief says. But the statute also conveys that doctors cannot rely on the referral of a physician "whom they pay or who otherwise has a financial stake in the abortion provider's practice," the state adds. "There is no guesswork involved. ... Under no reasonable construction of the Kansas law is there any sort of trap for a Kansas physician acting in good faith."

But Dr. Tiller disagrees, saying none of those definitions describe his relationship with Dr. Neuhaus. The two doctors are not part of the same practice, nor did Dr. Tiller pay Dr. Neuhaus for her travel or other services, according to his brief.

Anti-abortion group looks at precedent

Meanwhile, anti-abortion advocates say Supreme Court precedent supports laws like the one in Kansas. At least 11 other states have statutes requiring two or three doctors to consent to the necessity of an abortion procedure, according to Americans United for Life, a nonprofit policy group that opposes abortion. AUL filed a friend-of-the-court brief in support of the state.

Mailee R. Smith, an AUL staff attorney, said the Supreme Court has upheld states' authority to regulate abortion procedures that are not medically necessary at or after viability. She noted that in Doe v. Bolton, Georgia's statute applied to abortions performed at any stage of pregnancy.

More recently in 1992, in Casey v. Planned Parenthood, the high court also affirmed that any extra costs or delays, such as 24-hour waiting periods or an appointment with a second doctor, do not constitute undue burden, Smith said.

"In the abortion context, the court has explained that the physicians' rights are derivative of patients' rights, so because there is no undue burden on the woman, that woman has no claim and the physician has no claim either," Smith said.

Planned Parenthood of Kansas and Mid-Missouri has no position on the referral law and has taken no position on the case, said the group's president and CEO, Peter Brownlie.

"Dr. Tiller is one of the few physicians in the country who provides an important service for women in difficult, often crisis situations, and we are hopeful he can resolve this legal dispute," Brownlie said.

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ADDITIONAL INFORMATION

State stances

Several states have statutes requiring physicians to get at least one referral or have a second doctor be present before performing an abortion in certain circumstances. Here is a summary of some of those laws.

States requiring two- or three-physician concurrence

After viability: Alabama, Florida, Georgia, Kansas**, Montana*, North Dakota, Ohio, Pennsylvania, Virginia
All abortions: Delaware, Idaho*, Mississippi

States requiring a second physician in attendance

After viability: Alabama, Arizona, Arkansas, Illinois, Indiana, Louisiana, Minnesota, Missouri*, New York, North Dakota, Oklahoma, Pennsylvania

Notes: *Challenged and upheld in court. **Currently challenged

Source: Americans United for Life

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