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How close a tie?

The charges against abortionist George Tiller are narrow, but the effects of any verdict could be sweeping

How close a tie?

(Associated Press/Photo by Mike Hutmacher/The Wichita Eagle)

WICHITA, Kan.-Anyone who doubts that abortion is a big business in America should have been at the trial of notorious late-term abortionist George Tiller in Wichita, Kan., last week.

Tiller sat with a half-dozen-member, high-powered criminal defense team at his side, including three lawyers-one a former U.S. attorney-and three aides. Kansas assistant attorney general Barry Disney sat alone at the prosecution table and occasionally exchanged a note with a nearby associate.

Tiller's team also had passion on its side. Disney was clearly committed to the case, but his courtroom demeanor was not marked by the same sharp tenacity as the defendant's lead counsel, Dan Monnat. The state seemed outgunned.

Still, the prosecution of one of America's foremost abortionists was moving to trial, years after officials first suspected him of performing illegal late-term abortions. Tiller stood charged in Sedgwick County District Court with 19 criminal misdemeanor counts, each carrying up to one year in prison and a $2,500 fine.

Over the course of two days, Disney presented the prosecution's case. Kansas law does not allow abortions on babies who could survive outside the womb, unless there is a risk of substantial and irreversible impairment of a major bodily function of the mother, including her mental health. The law requires an independent physician with no legal or financial affiliation to the abortionist to provide a second opinion confirming the patient's eligibility. Disney argued that Dr. Kristin Neuhaus of Lawrence, Kan., whom Tiller came to rely on exclusively for the required second opinions, didn't fit that definition.

During opening statements and witness questioning, Disney established that Tiller recruited Neuhaus after state law was interpreted to require that the second opinion come from a Kansas-licensed physician. The two discussed the fee Neuhaus would charge for patient consultation and reached an agreement that Tiller would send her a steady stream of clients. While typically she accepted the $250 to $300 cash payments directly from the patients, Tiller's clinic would sometimes collect, hold, and distribute payments for Neuhaus, typically on occasions when Neuhaus conducted the consultation via telephone.

"By 2003," Disney said, "Dr. Neuhaus was a full-time consultant for the defendant. That is all she did. She had no other job, no other source of income." Neuhaus drove from Lawrence to Wichita once a week to conduct the consultations, using the clinic as her base of operations. She met with patients in clinic waiting rooms and on occasion used minor equipment or facilities around the clinic in the course of her work. To document the second opinion she provided to Tiller, Neuhaus used a standard form letter for all patient referrals. It was drafted by clinic staff, however, and edited by Tiller's attorney. Eventually the clinic provided the letter directly to Tiller's patients for them to present to Neuhaus for her signature after consultation.

The defense team pointed out that there was no salary, bonus, rent, lease, pension, or contract, and thus no affiliation. While acknowledging that the clinic held cash payments for Neuhaus, the defense noted that the money remained segregated from clinic funds. Neuhaus was never formally classified as an employee, never received a direct paycheck, W-2 or 1099 tax forms from the clinic.

The verdict is in the hands of a six-member jury. Their decision may depend on how they interpret the law. Interpreted loosely, it is reasonable to conclude that a financial or perhaps a legal affiliation existed. A more narrow interpretation might not suggest that the type of consulting tie between Tiller and Neuhaus constituted an improper relationship.

Prosecutor Disney insists the case is not about abortion but about the allegedly improper affiliation. But past coverage indicates the press would likely portray a not-guilty verdict as a vindication of Tiller. And while a conviction would be an answer to prayer for pro-life activists, the defense team has already suggested it will appeal in the event of an unfavorable decision.

Brian T. Johnson

Brian T. Johnson