Judge mulls whether to toss abortion stalking case

AP News
Posted: Oct 22, 2013 4:49 PM

WICHITA, Kan. (AP) — When fliers surfaced featuring a photo and the home address of the first person to open an abortion clinic in Wichita after the 2009 slaying of abortion provider George Tiller, she used Kansas' anti-stalking laws to force the pastor who made them to stay away from her.

Now a Sedgwick County judge is deciding whether to dismiss the case after hearing oral arguments Tuesday in a legal battle that pits the safety of abortion providers against the civil rights of protesters.

Sedgwick County Judge James Beasley said he would issue his ruling within five to 10 days on a defense request to dismiss the case filed by Julie Burkhart, the clinic's executive director, against Mark Holick, pastor of Spirit One Ministries in Wichita.

The judge told attorneys he realizes the importance of his ruling and the impact it could have on both Burkhart and the way Sedgwick County handles similar stalking cases in the future. The judge said he wanted more background before making his decision.

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 nearest one was about 180 miles away in suburban Kansas City.

Last year, Burkhart's group Trust Women, which supports legal abortion, 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.

Burkhart won a temporary protection against stalking order against Holick in March and is seeking to make it permanent. But the judge wants to make a decision first on a defense request to toss out the case before scheduling an evidentiary hearing on the merits of a more permanent order.

Burkhart alleges Holick scoped out the clinic and pointed a sign at her house that read, "Where's your church?" Her attorney, Erin Thompson, told the judge that's threatening because Tiller was killed at his church. Burkhart refers to Holick's fliers in her petition as "wanted-style" fliers and her attorney argues they're similar to those circulated before other abortion providers were killed elsewhere.

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Their purpose is to "direct anti-abortion activists to commit violence," Thompson argued in court.

Don McKinney, who represents the pastor, argued at the hearing that the state's anti-stalking law should not be part of the abortion debate, calling it the "new tactic of choice" to expand it into constitutionally protected activity.

He argued that the flier simply urged people to pray for Burkhart's repentance and salvation and is protected political and religious speech. He also said that Holick did not hold the "Where's your church?" sign and that even if he had, such picketing and signs are constitutional protected.