Abortion foes use 19th-century law for help

updated 6:05 p.m. ET Jan. 17, 2008

WICHITA, Kansas - Religious conservatives in Kansas have dusted off a largely forgotten 1887 state law that allows citizens to launch grand jury investigations, and they are using it to help turn the state into one of America's biggest battlegrounds over abortion.

A grand jury that was impaneled Jan. 8 by way of a citizen petition drive is investigating Dr. George Tiller, a Wichita clinic operator abhorred by anti-abortion activists because he is one of the few U.S. physicians who perform late-term abortions.

This is the second such citizen investigation of Tiller since 2006. A grand jury determines whether there is enough evidence for a trial, but normally prosecutors decide whether to convene a grand jury and whether to bring charges.

Phillip Jauregui, counsel for the anti-abortion Life Legal Defense Foundation, said Kansans are invoking the 19th-century law because prosecutors are too soft on abortion.

"This is a right the people of Kansas have given themselves," he said.

But others say the law is a dangerous tool.

"This is a witch hunt — plain and simple," said Vicki Saporta, president of the National Abortion Federation, an abortion rights group. "It clearly demonstrates the inherent danger of empowering biased advocacy groups to impanel a grand jury."

Abortion has remained a controversial issue in the United States, even after the Supreme Court made abortion legal throughout the country in the 1973 Roe vs. Wade decision. Several states have passed laws restricting the practice.

Citizen-petitioned grand juries
Under the Kansas law, enacted during the great US. railroad boom to curb political corruption, the people can force an investigation if they collect signatures from a certain percentage of voters in a county. In small counties, that can be a few hundred signatures; in Wichita's Sedgwick County, about 4,000.

Five other states provide for citizen-petitioned grand juries: Oklahoma, New Mexico, North Dakota, Nebraska and Nevada, according to a Tiller attorney.

One of the most publicized grand juries convened by citizen petition was formed in Oklahoma after the 1995 Oklahoma City bombing, which killed 168 people. The investigation was prompted by suspicions that Timothy McVeigh and Terry Nichols had help in the bombing. But the grand jury found no evidence of a wider conspiracy or a government cover-up.

So far, no other state appears to have used the process to pursue a social and moral agenda as extensively as Kansas, which is attacking not just abortion, but pornography.

Obscure law rediscovered
Since 2005, citizen petitions have forced several grand juries in Kansas to investigate whether adult bookstores should be charged with obscenity. Twenty stores were indicted, said Phillip Cosby, executive director of the National Coalition for Protection of Children and Families. Most of the cases have not been resolved.

The strategy? "To strengthen the prosecutor's hand" and let authorities know that "they are not alone — that we the people feel there is a very big problem," Cosby said.

The anti-abortion movement rediscovered the law when David Gittrich used it in 2006 to force an investigation into the death of a Texas woman who had an abortion at Tiller's clinic. Though the grand jury failed to return an indictment, people noticed.

Said Gittrich: "I was inspired by God to use the grand jury."

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