August 11, 2007
Former anti-abortion legislator is judge in Tiller case
BYLINE: By JOHN HANNA, Associated Press Writer
DATELINE: WICHITA Kan.
A judge who once called abortion "the slaughter of the innocents" was picked Friday to handle a criminal case against one of the nation's highest-profile abortion providers.
Sedgwick County District Judge Anthony Powell previously served in the Kansas House and was among the Legislature's most vocal abortion opponents. He voted for and, some say, helped write a 1998 law restricting late-term abortions. Shortly after its enactment, he accused Dr. George Tiller of breaking it.
Tiller was charged with 19 misdemeanors in June. Attorney General Paul Morrison alleges the doctor failed to get a second opinion on some late-term abortions from an independent physician, which the late-term law requires. Tiller maintains his innocence, and his attorneys are challenging the law.
Powell had an hourlong hearing Friday on the law's constitutionality but doesn't plan to rule until at least next month. If Powell upholds the statute, Morrison's office can move toward a trial. If Powell strikes it down, a trial will be delayed until appeals of such a ruling are resolved.
The case was assigned to Powell by Judge Gregory Waller, the county's chief criminal judge. Waller said he didn't know about Powell's past legislative activities and picked him because he was "the most available" for a hearing.
Tiller is among a few U.S. doctors performing late-term abortions, and national groups are watching his case. The anti-abortion group Operation Rescue has questioned whether Waller and another judge previously involved in Tiller's case could be impartial because they received contributions in past campaigns from attorneys linked to Tiller.
Also, abortion opponents don't trust Morrison because he is an abortion rights Democrat. They contend he's focusing on potential technical violations of the law, rather than more serious problems. They're hoping to force the county to convene a grand jury for a fresh investigation.
"It's about time things start leaning toward the side of life," said Troy Newman, Operation Rescue's president.
Powell wouldn't comment about the case after the hearing. But before the hearing began, from the bench, he mentioned his past as a legislator.
He noted that he'd served with legislators who signed "friend of the court" arguments submitted in the case. He said two of them may have contributed to his first campaign for judge in 2002, though campaign finance records later showed they didn't.
He said his judgment wouldn't be affected. He then asked the state's and Tiller's attorneys whether they objected to him presiding in Tiller's case.
Lee Thompson, an attorney representing the doctor, replied: "We trust the court's judgment in that regard."
After the hearing, Tiller's attorneys declined to comment about Powell's assignment.
Peter Brownlie, chief executive for a Planned Parenthood chapter that operates an Overland Park abortion clinic, said most people expect judges to be impartial and, "Somebody who was a sponsor or major backer of a law being challenged shouldn't be hearing the challenge."
Waller said he didn't take the case because he had scheduling conflicts. He said judges are always free to remove themselves from cases and said because attorneys in Tiller's case didn't object to Powell remaining, they seem satisfied that he can be impartial.
Newman said, "The opportunity was presented to them to request Judge Powell's recusal, and they declined to do so."
During the hearing, Tiller's attorneys said the law is unconstitutional because it's too vague to give doctors guidance on what conduct is prohibited and too much of a burden for a woman seeking an abortion. The attorney general's office argued the two-doctor requirement is a reasonable restriction, especially because the state has an interest in protecting late-term fetuses.
Powell said he'll give interested groups until Aug. 31 to file "friend of the court" arguments and that he'll probably have another hearing before ruling on the law's constitutionality. "This court can, frankly, use all the help it can get," he said from the bench.
As a legislator, Powell's views on abortion were clear. He voted regularly for new restrictions. He served in the House in 1995-2002, a Republican representing a Wichita-area district.
In a 1997 committee debate on banning a procedure critics call "partial-birth" abortion, Powell said, "Many of us regard abortion as the slaughter of the innocents."
The next year, when the late-term law passed, The Wichita Eagle reported that Powell "helped craft the bill." He led anti-abortion House members in explaining their yes votes as "an affirmation, in the name of the people of Kansas, elderly and young, frail and healthy, born and unborn, of the value of life."
Three months later, anti-abortion legislators accused Tiller of performing prohibited late-term abortions, something he said wasn't true. Powell participated in a news conference outside Tiller's clinic and said the doctor was "defying legal and moral authority."
"We regard it as central to our oath of office that we rise up against this law breaking," Powell said then.
The state board that regulates doctors looked into the allegations but found no wrongdoing. The same board investigated a patient's death in 2005 but concluded Tiller and his clinic had met all standards for reasonable care.
The late-term law under which Tiller is now charged applies after the 21st week of pregnancy and when the fetus can survive outside the womb.
It says before abortions can be performed in such cases, two doctors must conclude that a woman or girl faces death or "substantial and irreversible" harm to "a major bodily function," which has been interpreted as including mental health. It also says the two doctors can't be legally or financially affiliated.
Seventeen other states have a requirement that a second doctor sign off on some abortions or be present when some are performed, according to the Guttmacher Institute, a Washington-based research group.
Morrison allege that for 19 late-term abortions Tiller performed in 2003, the second opinion came from Dr. Ann Kristin Neuhaus, of Nortonville, and she and Tiller were financially affiliated. Tiller's attorneys contend the charges stem from a disagreement about "unusual technicalities."
Case is State v. Tiller, No. 07CR2112 in Sedgwick County.
On the Net:
Attorney general's office: http://www.ksag.org/home/
Tiller's clinic: http://www.drtiller.com/