The criminal charges were based on cases involving mostly teenagers. One patient was a 10-year-old who was 28 weeks pregnant; another, 24 years old, was 30 weeks pregnant.
Many of the abortions Tiller performed were of fetuses found to be medically compromised.
In 1999, the law was interpreted to mean that the second doctor had to be from Kansas, a problem for Tiller, whose patients -- mostly from out of state -- had always been referred by their own physicians. Few Kansas doctors were willing to consult on his cases. Tiller testified that he called about 100 retired physicians whose licenses were still active, but that no one would help him.
He considered challenging the requirement in court, but changed his mind after Larry Buening, executive director of the Kansas Board of Healing Arts, which licenses and disciplines medical practitioners in the state, urged Tiller to contact Dr. Ann Kristin Neuhaus, a physician in Lawrence, 2 1/2 hours away.
Buening's recommendation of Neuhaus, said Tiller's attorneys, meant that Tiller had followed in good faith the advice of a public official and thus did not commit a crime.
"It would be like a public official throwing water on you," said Monnat, "and then arresting you because you are wet."
The prosecution tried to show that Tiller's relationship to Neuhaus, who provided referrals in 2003 for the 19 women whose late-term abortions were the basis of the criminal charges, was not financially independent.
Disney said that Neuhaus, a witness for the state who received a grant of immunity to testify, essentially functioned as Tiller's employee. She saw his patients at his office, and on his schedule. Also, in 2003, Tiller's patients provided her with her only income.
And, in what Disney described as "the smoking gun," Tiller's own day planner reflected that in 1999, he had discussed on the phone the rate that Neuhaus would charge his patients for a consultation (Tiller had written "$200-$250").
"He wasn't just writing down what she said she was going to charge," said Disney. "He was negotiating and working with her on the amount she was going to charge."
Disney reminded jurors that during cross-examination, he had asked Tiller, "And you approved that fee?" and that Tiller had responded, "Yes."
