WICHITA, Kan. (AP) — A Wichita pastor accused of harassing the woman who opened Wichita's first abortion clinic since Dr. George Tiller's 2009 murder must face trial to determine whether his statements and actions are constitutionally protected, a Kansas judge ruled Saturday.
Sedgwick County Judge James Beasley refused a defense request to summarily throw out the case that pits the safety of abortion providers and their staff against the civil rights of protesters. The judge cited a U.S. Supreme Court decision protecting the "well-being, tranquility and privacy" of one's own home.
Clinic operator Julie Burkhart won a temporary protection against stalking order against pastor Mark Holick earlier this year and now is seeking to make it permanent. Burkhart filed the case after what she describes as "wanted-style" fliers listing her home address surfaced around town. She also accuses Holick of pointing a sign at her house that read, "Where's your church?" Burkhart's lawyer says that's threatening because Tiller was killed at his church.
Holick's lawyer, Don McKinney, argued the flier simply urged people to pray for Burkhart's repentance and salvation and is protected political and religious speech. He also said Holick did not hold the "Where's your church?" sign and that even if he had, the sign simply references concern for Burkhart's need for religious affiliation and is protected speech.
The judge ruled that only by testimony at trial can the meaning of the statement on the sign be discerned.
His three-page ruling quoted a U.S. Supreme Court case finding a state interest in preserving the sanctity of the home as the one retreat to which men and women can escape from the "tribulations of their daily pursuits." The courts have repeatedly held that individuals are not required "to welcome unwanted speech into their homes, and that the government may protect this freedom."
"The foregoing case is quoted to demonstrate that there are issues of fact and law that must be resolved prior to a resolution of the matter," Beasley wrote. "Only at trial can these concerns be addressed."
Burkhart had worked for Tiller for seven years before the late-term abortion provider was gunned down at his Wichita church by an abortion opponent. After Tiller's death, his clinic closed, leaving Wichita without an abortion clinic. The only other abortion clinics in Kansas are about 180 miles away in suburban Kansas City.
Last year, Burkhart's group Trust Women announced it was opening a new clinic in the building that once housed Tiller's clinic. The South Wind Women's Center provides abortions and other medical services.
Information from: The Wichita (Kan.) Eagle, http://www.kansas.com