Hours after the outgoing attorney general of Kansas charged one of the nation's few late-term abortion providers with illegally aborting viable fetuses, a judge dismissed the charges, ruling Friday that the attorney general had overstepped his authority.
Atty. Gen. Phill Kline angrily vowed to get the charges reinstated.
"This is war," said Mary Kay Culp, executive director of the anti-abortion group Kansans for Life.
The flurry of activity marks the latest twist in a long and bitter fight over abortion in Kansas.
State law permits abortions up to the time the fetus is viable outside the womb, usually 22 or 23 weeks' gestation. Viable fetuses may be aborted only if the pregnant woman's life is in danger or if two doctors certify that continuing her pregnancy will cause "a substantial and irreversible impairment of a major bodily function."
Last year, Dr. George Tiller reported aborting 240 viable fetuses at his Wichita clinic because the pregnant woman was at risk of irreversible harm.
Anti-abortion activists have long contended that Tiller's diagnoses are flimsy. Seeking to verify those suspicions, the attorney general pressed a two-year legal battle to get access to Tiller's medical records. Charts for about 60 patients were turned over to him in late October.
The 30 charges Kline filed against Tiller -- all misdemeanors -- center on 15 of those patients. According to court records, all were approved for abortions because they suffered anxiety or had experienced an episode of "major depressive disorder." Among them were several young teens and one 10-year-old, all of them in their late second or early third trimesters.
Kline maintains that depression is not a valid reason for a late-term abortion under Kansas law because the woman's major bodily functions are not irreversibly threatened. Allies in the anti-abortion community agree: "This is a loophole that Tiller's trying to exploit," said Troy Newman, director of Operation Rescue.
But the U.S. Supreme Court has repeatedly ruled that any restrictions on abortion must include an exception for the pregnant woman's health, including her mental well-being. The Kansas Supreme Court reminded Kline of that precedent last year.
"I believe I have complied with the spirit of the law and with the letter of the law," Tiller said in an interview in June 2005, one of very few he has given in recent years.
