August 17, 2011 — The American Civil Liberties Union of Kansas and Western Missouri on Tuesday filed a lawsuit in U.S. District Court in Kansas City, Kan., against a Kansas law that prohibits insurance companies from including abortion coverage in health plans, the Wichita Eagle reports (Lefler, Wichita Eagle, 8/17). The lawsuit contends that the law is unconstitutional and discriminates against women because similar insurance restrictions do not apply to men (Cooper, Kansas City Star, 8/17).
The measure bars health insurance plans from covering abortion care, unless the procedure is needed to save a woman's life, though it does allow insurers to offer stand-alone policies for abortion coverage. It also bans the sale of abortion coverage through health insurance exchanges established under the federal health reform law (PL 111-148) (Women's Health Policy Report, 4/25).
ACLU of Kansas and Western Missouri is asking the court to issue an injunction against the law, which took effect July 1. "The act was passed with the purpose of inhibiting women from accessing or paying for abortion care," the group states in the lawsuit (Harris, Bloomberg, 8/16). The law "serves no legitimate state interest," and its "only purpose is to make it more difficult for women to obtain and pay for abortion care," the lawsuit argues, adding, "By prohibiting women from purchasing insurance that covers all of their health care needs while placing no similar restriction on men, it impermissibly discriminates based on sex" (Wichita Eagle, 8/17).
Brigitte Amiri, senior staff attorney at ACLU's Reproductive Freedom Project, said, "This law is part of a nationwide trend to take away insurance coverage for a legal medical procedure that is an important part of basic health care for women." She added, "Many things can happen in a pregnancy that are beyond a woman's control, so having insurance coverage for abortion ensures that every woman can get the health care she may need" (Baker, "Healthwatch," The Hill, 8/16). Other abortion-rights proponents have argued that the restriction essentially requires women to plan for catastrophic events, such as rape or medical emergencies, that cannot be anticipated (Kansas City Star, 8/17). Moreover, insurers might not offer the separate riders for women who wish to purchase abortion coverage.
Supporters of the law have said it accommodates state residents who oppose abortion rights and do not want to be included in an insurance pool that covers the procedure. Kathy Ostrowski, a lobbyist for Kansans for Life, said, "The state has long asserted the power to heavily regulate the insurance industry, with a variety of rational mandates," and therefore it "certainly can regulate insurance to promote what the courts have often upheld as the state interest in promoting childbirth." She added, "Insurance schema are not a free choice anymore, and it is important to uphold the rights of conscience for individuals." Ostrowski continued, "No abortions are prevented by [this law], but neither does the state force the subsidizing of abortion."
Kansas Insurance Department spokesperson Bob Hanson said the department's attorneys are reviewing the lawsuit and had no immediate comment. Sherriene Jones-Sontag, a spokesperson for Gov. Sam Brownback (R), said the lawsuit amounts to "suing voters when they express their preferences through elections." She said, "Those who fail at the ballot box are turning to the courts to advance their agenda. We will uphold the law as written by the people who express their sovereignty through their elected representatives" (Wichita Eagle, 8/17).
Thirteen states have passed laws restricting insurance coverage of abortion since 2010, according to ACLU (Bloomberg, 8/16). ACLU chose to target Kansas because its law took effect first, Amiri said.
In 1992, the 8th U.S. Circuit Court of Appeals upheld a Missouri law that barred insurers from covering elective abortion procedures except through separate riders. Amiri said neither the discrimination claim nor the contentions that the Missouri law targeted abortion was raised in that case, which originated when a woman sued after being denied coverage for an abortion. She added that a successful challenge to the Kansas law could serve as a precedent for similar suits in other states and deter the passage of additional laws (Kansas City Star, 8/17).
Repro Health Watch — an exciting new edition of the Women’s Health Policy Report — compiles and distributes media coverage of proposed and enacted state laws and ballot initiatives affecting women's access to comprehensive reproductive health care, as well as litigation in response to those provisions.