## Facts

- Kansas citizens petitioned under K.S.A. 22-3001 to convene a Sedgwick County grand jury to investigate alleged illegal abortions and related offenses involving George R. Tiller, M.D., and Women’s Health Care Services, Inc. (WHCS).
- The grand jury issued subpoenas duces tecum to WHCS and its records custodian seeking five years of records for patients who received abortions after 22 weeks of gestation and for similarly situated patients who did not receive abortions.
- The subpoenas covered more than 2,000 patient records, permitted redaction of direct identifiers, and required a custodian to appear to authenticate records.
- Tiller, WHCS, and patient representatives moved in district court to quash, alleging irrelevance, overbreadth, undue burden, harassment, and unconstitutional invasions of privacy.
- The supervising judges denied the motions to quash.
- Tiller/WHCS, the patients, and the Kansas Attorney General filed consolidated original actions in mandamus in the Kansas Supreme Court seeking to quash or modify the subpoenas and to resolve statutory and constitutional questions about the grand jury’s authority.

## Issues

1. Whether K.S.A. 22-3001’s citizen-petition grand jury procedure violates separation of powers and is facially unconstitutional.
2. Whether a grand jury’s authority under K.S.A. 22-3008(1) to “issue subpoenas and other process” includes subpoenas duces tecum for documents.
3. What standard governs a relevance-based motion to quash a grand jury subpoena duces tecum.
4. When and how a district court must balance a grand jury’s investigatory need against claims of undue burden or privacy intrusion.
5. What constitutional privacy interests are implicated by subpoenas for abortion-clinic medical records and what safeguards are required.

## Decision

- The Kansas Supreme Court held K.S.A. 22-3001 is constitutional and does not violate separation of powers.
- The court held K.S.A. 22-3008(1) authorizes grand jury subpoenas duces tecum.
- The court adopted a relevance standard requiring denial of a motion to quash unless there is “no reasonable possibility” the requested material will yield information relevant to the general subject of the investigation.
- The court required balancing when a subpoena recipient makes an initial showing of overbreadth, undue burden, or intrusion on a privacy interest.
- The court recognized significant constitutional privacy interests implicated by abortion-related medical records and held grand jury access must be narrowly tailored and supervised to minimize unnecessary disclosure.
- Mandamus was granted in part and denied in part, requiring modification and judicially supervised procedures for the subpoenas rather than blanket enforcement as issued.

## Legal Principles

- Citizen-petition grand juries authorized by K.S.A. 22-3001 are consistent with separation of powers when operating under judicial supervision and existing legal constraints.
- A grand jury’s statutory power to “issue subpoenas and other process” includes subpoenas duces tecum for records.
- A grand jury subpoena challenged for irrelevance should be enforced unless there is no reasonable possibility the category of materials sought will produce information relevant to the investigation’s general subject.
- If the recipient makes an initial showing of overbreadth, undue burden, or privacy intrusion, the supervising court must balance the grand jury’s need against the burden or privacy invasion and may modify the subpoena.
- Grand jury investigatory authority is broad but not unlimited; subpoenas may not be used for arbitrary fishing expeditions or harassment.
- Subpoenas for abortion-clinic patient records implicate (1) informational privacy, (2) confidentiality in medical care, and (3) the right to obtain a lawful abortion free from undue governmental burden; these interests are conditional and may yield only to a proper governmental interest under stringent protections.
- Courts may require narrowing of categories, in camera judicial review, redaction, and procedures that maximize anonymity and limit dissemination of sensitive medical information.

## Conclusion

The Kansas Supreme Court upheld the legality of citizen-initiated grand juries and their power to subpoena records, but held that subpoenas for abortion-clinic medical files must satisfy a deferential relevance standard and, when privacy and burden are shown, be narrowed and implemented under strict judicial safeguards to reduce unnecessary intrusion into constitutionally protected medical and abortion-related confidentiality.


Tiller v. Corrigan, 286 Kan. 30, 182 P.3d 719 (Kan. 2008)