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Appeals court refuses to rehear Kansas abortion threat case; ruling requiring trial stands


WICHITA, Kansas — A federal appeals court on Tuesday refused to reconsider its earlier ruling that a Kansas abortion opponent must stand trial over a letter she sent to a Wichita physician saying someone might place an explosive under the doctor's car.

The 10th U.S. Circuit Court of Appeals rejected a petition from anti-abortion activist Angel Dillard asking the three-judge panel that made the ruling or the full court to rehear her civil case. The court noted in its brief order that the petition had been sent to all active judges of the appeals court and none requested that the full court be polled on the request.

A three-judge appeals court panel in July overturned a federal judge's summary judgment in Kansas that the letter was constitutionally protected speech. At the time, the split panel said the decision about whether the letter constituted a "true threat" should be left for a jury to decide. It also rejected Dillard's argument that the government violated her free speech rights by suing her.

The latest developments in the case stem from a civil lawsuit that the U.S. Department of Justice filed against Dillard under the Freedom of Access to Clinic Entrances Act, a federal law aimed at protecting access to abortion services.

"We look forward to trial," U.S. Attorney Barry Grissom said in an emailed statement.

Dillard's attorney, Theresa Sidebotham, said Tuesday they had just received the appeals court ruling and hadn't decided whether to appeal to the U.S. Supreme Court. However, she said the record is "very strong" that her client did not make a true threat and they are confident a jury will find in her favor.

The Justice Department sued Dillard in 2011 for sending the letter to Dr. Mila Means, who had been training to offer abortions. At the time, no doctor was performing abortions in Wichita in the wake of the 2009 slaying of Dr. George Tiller by an anti-abortion zealot.

In a 2-1 ruling in July, the appeals panel said a jury could reasonably find that the letter conveyed a true threat of violence.

"The context in this case includes Wichita's past history of violence against abortion providers, the culmination of this violence in Dr. Tiller's murder less than two years before Defendant mailed her letter, Defendant's publicized friendship with Dr. Tiller's killer, and her reported admiration of his convictions," the court panel wrote in its decision.

Dillard wrote in her 2011 letter that thousands of people from across the nation were scrutinizing Means' background and would know her "habits and routines."

"They know where you shop, who your friends are, what you drive, where you live," the letter said. "You will be checking under your car every day — because maybe today is the day someone places an explosive under it."

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