July 28, 2008
Contact: Mary Kay Culp, State Executive Director, Kansans for Life  913-406-4446

PRESS RELEASE

Re: Today's decision by Judge Clark Owens of Wichita upholding the constitutionality of the Kansas law requiring that the second doctor required to approve a late-term abortion of a viable baby (under the narrow exceptions to a ban on such abortions) cannot be legally or financially affiliated with the abortionist.
 

"If ever a case needed to go to trial it is this one. The law says the second doctor required to approve the abortion of a viable baby cannot be legally or financially affiliated with the abortionist.  Not only did Tiller repeatedly use Kristen Neuhaus, a doctor twice called a public danger by our board of healing arts, but records indicate that for four years her sole income came from her association with him. We hope the brief we ordered from Americans United for Life Legal Defense Fund, accepted by Owens, helped him in his decision to hold Tiller accountable to the law. The original AG brief was good as well, but the assistant AG's in court have been a disappointment and given the current AG's penchant for laying down for Tiller, we're not sure where they will end up at trial.  --Mary Kay Culp, State Executive Director, KFL

 

Important Background:

KFL ordered a brief in this case from AUL (American's United for Life in Chicago--the legal arm of the prolife movement.)

We had  feared what Morrison would submit in Owens' Court to answer Tiller motions.  As it worked out, however, conservative KUprof McAlister (short stint as atty for House under Mays) ended up writing AG brief, which harmonized  with our AUL amicus,(which Owens accepted). (Ass't AG's in court, however, have not been good.)
 

We certainly hoped that the brief would help give Owens enough ammo to hold Tiller  accountable, and it did, or at least we can't help but think it helped:

 

http://www.aul.org/xm_client/client_documents/briefs/StatevTiller.pdf
 
 *No. 07 CR 2112
 IN THE EIGHTEENTH JUDICIAL DISTRICT COURT SEDGWICK COUNTY, KANSAS
 CRIMINAL DEPARTMENT
 ______________________________________
 THE STATE OF KANSAS,Plaintiff, v. GEORGE R. TILLER,Defendant.

 BRIEF OF AMICI CURIAE KANSAS SENATORS
 KARIN BROWNLEE, LES DONOVAN, SR., MARK GILSTRAP,
 TIM HUELSKAMP, PHILLIP JOURNEY, JULIA LYNN, PEGGY PALMER,
 DENNIS PYLE, RALPH OSTMEYER, AND SUSAN WAGLE

 AND KANSAS REPRESENTATIVES
 J. DAVID CRUM, OWEN DONOHOE, BENJAMIN HODGE, STEVE HUEBERT,
 S. MIKE KIEGERL, LANCE KINZER, RAY MERRICK, ROB OLSON,
 VIRGIL PECK, JR., AND ARLEN SIEGFREID

 IN SUPPORT OF PLAINTIFF*
 *______________________________________
 EXCERPTS: *
 the Court repeatedly emphasized that, the later in pregnancy that
 an abortion occurs, the more state-regulated and restricted that
 abortion can be. Casey, 505 U.S. at869, 879. In fact, the Court
 stated that “[i]in some broad sense…*_*a woman who fails to act
 before viability has consented to the State’s intervention*_* on
 behalf of the developing child.” Id. at 870; see also Doe v. Bolton,
 410 U.S. 179, 198-99 (1973)

 *_the two-physician requirement _*challenged by the Defendant in
 K.S.A. § 65-6703(a) is _**simply a regulation which protects
 children from medically unnecessary abortions**_ by ensuring the
 procedure is medically necessary, thereby expressing the State’s
 interest in childbirth over abortion.
 A second-physician requirement ensures that a woman receives an
 accurate medical evaluation from a physician other than the one who
 stands to benefit financially from her abortion; this is
 _*particularly acceptable in the post-viability context, where the
 State may assert significant interests in the unborn child’s life as
 well as in the woman’s health*_. Under Casey, attempting to ensure
 that a woman is protected and understands the consequences of her
 decision by requiring confirmation of medical necessity by a second
 physician furthers the State’s legitimate interest of reducing risk
 to that woman. Casey,505 U.S. at 882.

 In _*Gonzales, the Court reaffirmed these central holdings of
 Casey*_. See Gonzales, 167 L. Ed. 2d at 508-10. Furthermore, the
 *Court directly tied the medical regulation of abortion to a state’s
 interest in ensuring a woman is fully informed before making the
 abortion decision.... Noting that r_*egret, severe depression, and
 loss of esteem can follow abortion, the Court concluded that “the
 state has an interest in ensuring that so grave a choice is
 well-informed*,*_” see alsoCasey, 505 U.S. at 882 (concluding that a
 lack of proper information can result in devastating psychological
 consequences for the woman). Even more relevant, then, is K.S.A. §
 65-6703(a), a regulation which works to ensure that women are
 well-informed by ensuring a proper medical need, and as such it
 falls within the State’s substantial interests in regulating
 post-viability abortions and should be upheld under Gonzales.

 In summary, the standard applicable to the case at hand is that,
 after viability, a _*state may promote its interest in potential
 human life by regulating and even proscribing abortion,*_ unless
 necessary to preserve the mother’s life or health. Casey, 505 U.S.
 at 879.\

 the _*abortions banned in Gonzales were both pre- and
 post-viability*_, and yet the partial birth abortion ban—a ban, as
 opposed to the mere regulation here2—was still upheld against
 Constitutional challenges. Gonzales, 167 L.Ed. 2d at 508. That lends
 all the more credence to the constitutionality of K.S.A. §
 _*65-6703(a), which only affects post-viability abortions.*_

 Measures affirming the life of the unborn or protecting the health
 and welfare of women *_may be burdensome without being
 unconstitutional. _*“*Regulations which do no more than create a
 structural mechanism by which the State… may express profound
 respect for the life of the unborn [and/or protect the health of
 women] are permitted,*” so long as there is no substantial obstacle
 for the woman. Casey, 505 U.S. at 877-78.

 When considering the standard regarding late-term abortions, this
 Court should keep in mind that_ _ The increased cost and delay do
 not constitute undue burdens.Supreme Court specifically stated that
 it does not matter if a law makes it more difficult or expensive to
 procure an abortion when that law has a valid purpose—which, as
 here, includes the promotion of childbirth over abortion. Casey, 505
 U.S. at 874, 886. Only an undue burden can invalidate a law—and
 increased _**cost, delay, or difficulty do not constitute undue
 burdens**_. Id. at 874, 885-86

 Further, in upholding a challenge to a 24-hour waiting period
 before abortion, the _*Court acknowledged that, in the vast majority
 of cases, a 24-hour delay creates no appreciable health risk*_. Id.
 at 885.A woman *_must already have two constitutionally-required
 doctor visits_*. There is no reason why these visits can not be with
 two unrelated physicians.Casey, 505 U.S. at 885-86 (holding two
 doctor visits constitutional).

 Defendant likely offers no real-life examples of medical risk
 resulting from the provision. Such a *_hypothetical facial attack is
 invalid under Gonzales._* 167 L. Ed. 2d at 515.

 In Harris v.McRae, the Supreme Court held that a state government
 can distinguish between abortion and “other medical procedures”
 because “_**abortion is inherently different;*” *_This holding has
 been reiterated in other courts

 Thus, even if the Defendant asserts that there is no medical reason
 for a concurring second physician, the potential informational
 quality of a second opinion in the post-viability context makes that
 assertion meaningless under Casey and Gonzales. _**Measures may be
 enacted favoring childbirth over abortion, even when those measures
 do not further a maternal health interest.**_ Casey, 505 U.S. at 886.

 Finally, the physician’s rights are not paramount in the abortion
 decision and should not be considered by this court. In Casey, the
 court confirmed this basic premise,
 holding that the physician-patient relationship is derivative of the
 woman’s position. Casey, 505 U.S. at 884. A _**physician has no
 greater right in the abortion context than his or her patient**_—and
 as demonstrated above, K.S.A. § 65-6703(a) does not place an undue
 burden on the woman. Because a woman’s challenge would fail here, so
 would the Defendant’s.

 In addition, precedent makes clear that “the *S_tate has a
 significant role to play in regulating the medical profession_*.”
 Gonzales, 167 L. Ed. 2d at 509. The Court in Casey held that,
 standing alone (as here), limits on physician discretion are not
 reason to invalidate an abortion regulation. Casey, 505 U.S. at 886.
 Moreover, there is disagreement as to _*when fetal life becomes
 viable,*_ whether post-viability abortions are medically necessary,
 etc.; and “[*t]he Court has given state and federal legislatures
 *_wide discretion to pass legislation in areas where there is
 medical and scientific uncertainty.*”_* Gonzales, 167 L. Ed. 2d at
 513; see also generally id. (discussing diverging medical opinions).

 We believe the second-physician requirement reasonably furthers the
 State’s compelling interest in protecting the lives of viable
 fetuses….”Ashcroft, 462 U.S. at 485-86. _*The Missouri requirement
 and K.S.A. § 65-6703(a) are genuinely analogous*_, especially in
 light of the Court’s conclusions in Casey and Gonzales that
 post-viability restrictions act to preserve both maternal health and
 fetal life by providing the woman with an opportunity to receive
 medically accurate information.

 Additionally compelling are the_* lower court decisions which have
 upheld requirements similar to K.S.A. § 65-6703**(a)*_.

 Medical judgments may vary in this complex area, and the *State may
 properly require more than the opinion of the woman’s attending
 physician* to insure that the potentiality of life is not destroyed.
 Id. at 685, 687-88 (citing Roe, 410 U.S. at 163, 164-65).

 Defendant may cite cases striking multiple-physician requirements
 in the abortion context. However, _**c**ases decided without the
 guidance of Casey and Gonzales are outdated**_. In addition, the
 facts of some cases make those cases inapposite. None of the lower
 court decisions are mandatory authority to this Court, and each are
 outdated or inapposite;