Federal judge refuses to block controversial Kansas abortion insurance law.

Verne Strickland Blogmaster / October 2, 2011

ROXANA HEGEMAN / HuffPost  09/29/11 06:10 PM ET  

WICHITA, Kan. — A federal judge has refused to block a new Kansas law restricting insurance coverage for abortions, saying opponents failed to prove their claim that legislators' real intent was to create obstacles for women seeking abortions.

The law prohibits insurance companies from offering abortion coverage as part of general health plans, except when a woman's life is at risk. Patients who want abortion coverage must buy supplemental policies, known as riders, covering only abortion.

The ruling means that women seeking an abortion in Kansas will need to buy a rider or pay for the procedure out-of-pocket if their insurance policies are new or were renewed after the law took effect July 1.

The American Civil Liberties Union sued the state in August, arguing that the law's true intent was to impose an unconstitutional burden on abortion seekers, and asked that the law be put on hold during the court fight.
U.S. District Judge Wesley Brown rejected the request, saying the ACLU didn't provide evidence that the law "actually has the effect of creating a substantial obstacle to obtaining abortions."

The ACLU also claimed the law was discriminatory because men can buy a general health plan for all their reproductive needs, but Brown said the group failed to show a likelihood of prevailing on that claim, too.

But the judge told the ACLU it could try again, noting his decision wasn't a final ruling on the merits of the group's claims. He also ordered an expedited schedule so the case would move more quickly through the courts.

The law was among several major anti-abortion initiatives approved by Kansas legislators and signed into law this year by Republican Gov. Sam Brownback, who called on lawmakers to create "a culture of life" after he took office in January. Supporters of the insurance restrictions contended that people who oppose abortion shouldn't be forced to pay for such coverage in a general health plan.

"The law appears to rationally further a state interest in allowing the State's citizens to avoid paying insurance premiums for services to which they have a moral objection," Brown wrote in his 19-page order. "Whether the practical effect of the law is to actually create a substantial obstacle is another question, but plaintiff has not attempted in this motion to put on evidence to establish such an effect, and the court expresses no opinion here on that question."

The Kansas attorney general's office said it was pleased with Brown's decision. The ACLU noted it was only a preliminary ruling and vowed to keep fighting.

"The state has no business depriving a woman of insurance for vital services that are already covered by most health plans," said Doug Bonney, legal director for the ACLU of Kansas and Western Missouri. "If a woman and her doctor reach the decision that ending a pregnancy is the right choice for her and her family, she should have the peace of mind of knowing that her insurance will cover all of her medical needs."

The ruling was a setback for abortion rights advocates, who have successfully blocked enforcement of other new Kansas laws dealing with abortion. Federal judges have temporarily blocked two laws – one dealing with strict abortion clinic regulations and another that strips federal family planning dollars from a Planned Parenthood chapter – pending trial on their constitutionality.

Brown said the insurance law appears to draw heavily from federal law. He noted that the federal health care overhaul also authorized states to prohibit abortion coverage in policies sold on state-level exchanges, where individuals and small businesses would be able to choose from different health care plans and compare coverage options. The new Kansas law has such a provision.

As for the ACLU's claim that the law violates its members' rights to equal protection, since men could buy general policies for their reproductive needs, the judge sided with the state. Brown, who at age 104 is the nation's oldest sitting federal judge, agreed that such a contention must be reviewed but said the ACLU didn't provide enough evidence to convince him.

In a separate case challenging another abortion law, a federal judge refused on Thursday to allow a national anti-abortion doctors' group to join a lawsuit over Kansas' new abortion clinic regulations. The judge said intervention by the by American Association of Pro-Life Obstetricians and Gynecologists would unnecessarily delay the case, and shot down all of the group's arguments.