Doctor Challenges Kan. Abortion Law

[ismnotwasm]

"Attorney General Paul Morrison alleges that the Wichita doctor broke the law by consulting in 2003 on late-term procedures with a physician who had business ties to him. A 1998 law requires two doctors to sign off on some late-term procedures and says those physicians cannot have financial or legal links.

Tiller's attorneys filed a motion Monday to dismiss the charges, arguing that the requirement is unconstitutional. They say it is vague, places an undue burden on a physician's right to practice medicine and violates a woman's right to obtain an abortion as outlined in court decisions."


http://www.washingtonpost.com/wp-dyn/content/article/2007/07/02/AR2007070201731.html

[iverglas]

1. Dr. Tiller

seems destined to be your own Dr. Morgentaler. ;)

Henry Morgentaler did time on convictions under Canada's abortion law, before he finally (with a lot of help, of course, but with himself on the line again) got it struck down.

There are often commonalities in the rules that get made to control women's access to abortion -- and the problems they cause and the unacceptable characteristics they present.

From the article about Tiller:

Attorney General Paul Morrison alleges that the Wichita doctor broke the law by consulting in 2003 on late-term procedures with a physician who had business ties to him. A 1998 law requires two doctors to sign off on some late-term procedures and says those physicians cannot have financial or legal links.

Tiller's attorneys filed a motion Monday to dismiss the charges, arguing that the requirement is unconstitutional. They say it is vague, places an undue burden on a physician's right to practice medicine and violates a woman's right to obtain an abortion as outlined in court decisions.

What do you do when THERE ARE NO OTHER DOCTORS?

This was the problem in Canada, especially in smaller communities. The two doctors who made the recommendation to approve the "therapeutic" abortion could not sit on the committee making the decision. This meant that a woman needed two doctors PLUS however many were on the committee (the committees had non-doctor members as well) to get a simple medical service.

The situation in the UK, described in the other thread, is not as restrictive, but it is still tying up two members of a profession whose services are obviously scarce, as compared to demand, to do something completely unnecessary.

That's the practicality. The legality is the requirement that women in particular jump through these hoops for this service in particular, and the fact that this is very much an undue burden on their rights.

The fact that there are some doctors willing to put themselves on the line when it is a lot to expect from an ordinary woman -- and when that is just not practical anyway, given the central fact of the time constraints involved -- is something we all have to be grateful for. Women are, quite reasonably, more likely to jump through the hoops than to dig in their heels and go to court and say you can't do this to me; the consequence for them would probably be loss of the window of opportunity to terminate the abortion. A doctor who says I'm doing this whether you like it or not, in the interests of his/her patients, and then faces the consequences, has to be admired.

[ismnotwasm]

2. I was wondering that very thing

"What do you do if there are no other doctors?"

Given the requirement is there for some reason in the first place. In fact, I would imagine that most doctors would consult one another without a specific law if needed. Of course forced birthers like to think they know better than, and can make decisions for, women and their physicians--the law seems to be a nod in that direction.

[atommom]

3. The anti-choicers have been after Tiller for years. He's the only one in

the area who does late-term abortions. Our former AG, the Bible-thumping Phill Kline, filed 30 charges against him. All were thrown out when the new AG (Morrisson) took office, because they were riddled with errors. Now Morrisson has made some charges of his own. The anti-choice people are still not happy, because Kline's charges could have been challenged all the way up to the Supreme Court, and could possibly have set a precedent for further limiting late-term abortions. The charges Morrisson has made won't affect abortion law, regardless of who wins the case.

Here's an interesting timeline of Tiller's battle with the anti-choice people. They have been after him for a long time.
http://www.kansas.com/290/story/109743.html

[iverglas]

4. actually

he's one of the very few on the *continent* who do late-term abortions.

Women from Western Canada are referred there (at public health plan expense) when late-term abortion is needed, usually for severe fetal anomaly, simply because the procedure is so rarely called for that the expertise does not exist locally.

I once 'knew' a woman, on abortion debate boards a few years ago, who had had a termination at Tiller's clinic -- a very wanted pregnancy in which a neural tube defect incompatible with life was diagnosed late. (She was sufficiently traumatized by the experience that, given the natural feelings of guilt experienced by most women who suffer pregnancy loss and her obvious inability to move on, she was ripe for exploitation by the anti-choice net warriors, and her mental health declined visibly on line as they got their hooks into her.) She had had to run the gauntlet of baby-killer abuse being hurled at her before she could access the services provided by Tiller's clinic.

[atommom]

5. Didn't realize how far his patients had to come to see him!

It makes it even more important that he stays in business.

[iverglas]

6. exactly

The same was true of Henry Morgentaler in the day, here.

The situation was slightly different in his case. Several juries in Quebec had simply refused to convict him when he was charged under the abortion provisions in the Criminal Code -- and that "jury nullification" business ain't part of any legal tradition of ours. So the Quebec government, which was comparatively progressive and had no interest in prosecuting him anyhow, just said fine, we're outa here. (Criminal law is federal, but the criminal justice system is provincial -- the feds make the law, the provinces enforce it.)

So women from all over Canada were able to access abortions without any restrictions if they could make it to Quebec, and get one of the scarce appointments. Public hospitals there also provided abortions without conditions, although they kept the committees operational and did the post facto rubber-stamping. We're talking mid-1970s in this case. The lax approach gradually just spread, but some province or other -- I assume Ontario -- did eventually charge Henry.

Oh no, that's right -- it was in Ontario, but it was the feds who preferred an indictment, because the provinces wouldn't do their job.
http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html

Appellants, all duly qualified medical practitioners, set up a clinic to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s. 251(4) of the Criminal Code. The doctors had made public statements questioning the wisdom of the abortion laws in Canada and asserting that a woman has an unfettered right to choose whether or not an abortion is appropriate in her individual circumstances. Indictments were preferred against the appellants charging that they had conspired with each other with intent to procure abortions contrary to ss. 423(1)(d) and 251(1) of the Criminal Code.

Counsel for the appellants moved to quash the indictment or to stay the proceedings before pleas were entered on the grounds that s. 251 of the Criminal Code was ultra vires the Parliament of Canada, in that it infringed ss. 2(a), 7 and 12 of the Charter, and was inconsistent with s. 1(b) of the Canadian Bill of Rights. The trial judge dismissed the motion, and the Ontario Court of Appeal dismissed an appeal from that decision. The trial proceeded before a judge sitting with a jury, and the three accused were acquitted. ...

And it ended up in the Supreme Court. (An accused can choose judge+jury or judge alone here, and many opt for judge alone where there are complicated legal issues.)

Henry kept it up:
http://www.prochoiceactionnetwork-canada.org/prochoicepress/02autumn-winter.shtml

Dr. Henry Morgentaler announced in September <2002> that he will soon launch lawsuits against New Brunswick and Nova Scotia for refusing to fund abortions at his clinics in Fredericton and Halifax. Five provinces contravene the Canada Health Act because they will not fully fund abortions at clinics (the other three are Quebec, Manitoba, and Prince Edward Island).

"I'm on the warpath again," Morgentaler told the Globe & Mail. "I have made it my goal to bring reproductive freedom to the women of Canada. We thought the battle was over when the Supreme Court of Canada legalized abortion, but some provinces have blatantly defied the law."

Morgentaler feels compelled to sue the provinces because of the "passivity" of the federal health minister, Anne McLellan, who will not enforce the law against the provinces. "I think the only way to get justice for women is to go through the courts," he said.

The federal government has the power to withhold a percentage of transfer payments to the provinces, but so far, only Nova Scotia is being penalized at a rate of about $50,000 per year. "She's afraid," Morgentaler said of McLellan. "She doesn't want to antagonize anybody. She has a position of power where she could tell the provinces 'If you don't follow and obey the Canada Health Act we will withhold substantial federal transfer payments'," he said.

Actually, google pulled that issue up because I was looking for George Tiller in Canadian sources, but I see that's just a reference to Kopp. So forgive the source, and of course the language it uses, but it's about the only sort of place you'll find anybody bothering to write about this:
http://www.lifecanada.org/html/newsletter/Vol3/no5/GrowingConcernOverLateAbortionsOnCanadianWomen.htm

This month it was revealed that Quebec sent 30 pregnant mothers whose unborn children were beyond 24 weeks gestation to Wichita, Kansas last year for late-term abortions (at a cost of $5000 US each) at the private clinic of controversial abortionist George Tiller. Not surprisingly, various pro-life organizations spoke out against Quebec’s actions (see statements from Canadian Physicians for Life and the Quebec Catholic Bishops on opposite page.)

... When I contacted the Ontario Ministry of Health on September 22 to verify this number, I was told by media spokesperson Dan Strasbourg that in the fiscal year 2003-2004, Ontario paid for 56 “out of country” “late term” abortions, where “late-term” is defined by Ontario as after 20 weeks, “out of country” means in the US, and all were deemed “medically necessary.” When I asked what that meant – if the abortions were “necessary” for health reasons or fetal anomalies or what exactly – he said he did not have that information. The total cost to Ontario taxpayers for those 56 late-term abortions—$397,514.00 CDN!

According to British Columbia Ministry of Health spokesperson Lisa Brewster, between April 2002 and March 2003, British Columbia paid for 54 out of country late-term abortions, (at least 20 weeks gestation). The cost she said was approximately $2800 per procedure. All were done in Washington State. The BC Medical Services Plan requires a letter from a referring physician stating that the abortion is “medically necessary” and proof of an ultrasound showing that the gestational age is at least 20 weeks. Otherwise, the abortion is done in BC.

Unfortunately, this is a kind of unavoidable cost. This sounds like fewer than 200 cases per year, from all across a huge country, and so it's unsurprising that it's regarded as better to send the patients to a place where there is experience and expertise not available, and not likely to be developed, locally.

So yes. Support your local Dr. Tiller, please!