ACLU loses another move to stop Kansas insurance law
by Kathy Ostrowski
It's not news that a lawsuit weighing the validity of the Kansas pro-life insurance law has been headed for trial in March 2013, but new filings that could have precluded a trial were answered by federal court judge Julie A. Robinson on Monday.
The law bars private health care insurance from covering abortion except those done to save the mother’s life — 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 Kansas law was passed in 2011, with the impetus being employers’ and employees’ conscience objections to including abortions as part of health care packages.
The American Civil Liberties Union (ACLU) filed suit on behalf of several women who “lost” abortion coverage they previously had. That legal complaint has been amended several times but has not prevented the law from going into effect.
In June, the ACLU filed for summary judgment, asking that the judge rule on the legal arguments without going to trial, claiming that the legislature’s predominant purpose in passing the law was simply to impede access to abortion. The ACLU tried to fortify their arguments by citing the high cost of abortion, the animus of the legislature and the difficulty in navigating the purchase of riders.
In July, the State’s attorneys argued against that claim that the law had no rational basis and offered their own reason why the law could be upheld from the bench, without a trial. Attorneys for Kansas have stated at least four state interests served by the law:
- promoting childbirth over abortion;
- protecting the consciences of Kansans;
- lowering insurance costs; and
- making the public more aware of the actual cost of abortion.
On Monday, Judge Robinson roundly denied the ACLU’s arguments, and supported the state’s rebuttal of it, quoting her own earlier ruling, “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, while supporting the State’s rebuttal Judge Robinson did not allow Kansas attorneys their wish to also have her settle the matter without trial. She still wants to explore the issue of “undue burden,” and writes, “the 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 indicate that 137 women used insurance (not self-insured plans) to pay for elective abortion in Kansas in a one-year time frame from July 2010- July 2011. During that time, approximately 7,800 Kansas abortions were performed, so the State asserts the law does not impede a large fraction of the relevant cases. Robinson writes, “Absent more evidence, it is difficult to determine whether this burden is an undue one for a large fraction of these women,” and thus the trial is still scheduled for March.
Sadly, the question of the “burden” borne by those 137 aborted children is not up for discussion.