ACLU ends lawsuit to block Kansas insurance law that bars abortion coverage

By Kathy Ostrowski, Legislative Director,
Kansans for Life

Judge Julie A. Robinson

Judge Julie A. Robinson

The Associated Press reported late Friday that the ACLU (American Civil Liberties Union) had withdrawn its failing lawsuit against a 2011 Kansas law which bars private health care insurance from covering abortions except those done to save the mother’s life. The ACLU cannot file these claims again or appeal the earlier court rulings.

The law, HB 2075,  was sought as a “conscience” protection by employers who did not want to be forced to offer policies with abortion coverage, and employees who objected to having their health care dollars pooled into plans that paid for abortions.

HB 2075 was passed in 2011, the first year of the administration of pro-life governor, Sam Brownback. It is a law that seven other states have, some (including our neighbor Missouri) for decades. Under the law, those wishing abortion coverage could purchase individual, separate policy ‘riders.’

The plaintiffs were women (primarily two former Kansas abortion lobbyists), claiming they lost their abortion coverage under the new law and that it showed gender discrimination. The ACLU argued that the legislature had improperly enacted the law to prevent access to abortion.

However, from the beginning the lawsuit experienced rough going. It did not merit an injunction, a variety of their legal claims were advanced and then scrapped, and the ACLU was told more than once that its claims “lacked evidence.”

In June, the ACLU filed for summary judgment, asking the judge to rule on the legal arguments without going to trial. The ACLU argued the legislature’s predominant purpose was to impede abortion access and tried to fortify its arguments by citing the high cost of abortion, the animus of the legislature, and the difficulty in navigating the purchase of riders.

However on January  7, 2013, federal Judge Julie Robinson soundly rejected the ACLU motion for a bench ruling instead of a trial. Judge Robinson responded that, as a matter of law, the ACLU had failed to provide any evidence that the Kansas legislature’s predominant motivation was to make it more difficult to get abortions.

Judge Robinson wrote, “Whether one agrees or disagrees with [the State’s] asserted cost and/or ‘freedom of conscience’ rationale, there is nothing in the record to show that this was not the legislature’s purpose in adopting the law. Moreover, the claimed interests are rational ones.”

Attorneys for Kansas have stated there are at least four state interests served by the law: 1) promoting childbirth over abortion; 2) protecting the consciences of Kansans; 3) lowering insurance costs; and 4) making the public more aware of the actual cost of abortion.

Abortion supporters–who’ve sued three of Kansas’ 2011 pro-life measures–are fond of complaining that too much money has been spent by the state on defense litigation. They argue that these pro-life laws were only sued because they are “wrong.” In this case, the court has recognized that it was the ACLU wasting taxpayer money.

Abortion is always the taking of an innocent human life. Upholding this law is a victory against those who are determined to “normalize” and mainstream abortion as health care.