Anti-Choice Zealots Chase After Patients' Private Medical Records

By Katherine Spillar, Ms. Magazine. Posted May 7, 2008.

This article is reprinted from Ms. Magazine.

Mary 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.

Having 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.

The 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.

Operation 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.

"This 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.

So 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 (see "What's Up With Kansas," Ms., Spring 2007), 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.

Tiller's 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.

Moreover, 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.

Although 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.

However, 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.

Meanwhile, 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.

See more stories tagged with: reproductive rights, late-term abortion, operation rescue

Katherine Spillar is the executive editor of Ms. Magazine.

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