ACLU loses another move to block Kansas insurance law that bars abortion coverage

By Kathy Ostrowski, Kansans for Life legislative director

Judge Julie A. Robinson

Judge Julie A. Robinson

A federal judge Monday dismissed a request by the ACLU to summarily invalidate a Kansas law that bars private health care insurance from covering abortion except those done to save the mother’s life. Judge Julie A. Robinson of Federal District Court rejected the ACLU’s argument that the legislature’s predominant purpose was simply to impede access to abortion.

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 Kansas; 3) lowering insurance costs; and 4) making the public more aware of the actual cost of abortion.

Judge Robinson accepts that response and cited her own earlier ruling in the case:

“Whether one agrees or disagrees with this 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. . . .”

However, citing the 1992 Planned Parenthood v. Casey decision, Judge Robinson still wants to explore the issue of “undue burden” at trial. Referring to Casey, she writes, “[T]he Supreme Court held that showing that a statute will operate as a substantial obstacle in a large fraction of the cases in which it is relevant is sufficient, albeit not necessary, to show that the statute creates an undue burden.”

Trial submissions indicates that 137 women used insurance to pay for elective abortion in Kansas in 2011. Robinson writes, “Absent more evidence, it is difficult to determine whether this burden is an undue one for a large fraction of these women…”

The trial is still scheduled for March.

HB 2075 was passed in 2011, the first year of the administration of the robustly 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 impetus for the law was employers’ and employees’ conscience objections to paying for abortions as part of health care packages.

Looking for traction, the ACLU has amended its legal complaint several times in a vain attempt to secure an injunction blocking the law from going into effect.

In June, the ACLU filed for summary judgment, asking the judge to rule on the legal arguments without going to trial. As noted. the ACLU argued the legislature’s predominant purpose was to impede access to abortion. The ACLU 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.