Wichita A judge hearing a challenge to a new Kansas law limiting insurance coverage for abortions questioned Friday whether the stated basis for the measure made sense or whether the law was merely meant to place an undue burden on women seeking the procedure.
Attorneys for the state told U.S. Magistrate Judge Kenneth Gale that lawmakers were expressing "the conscience of its people" in passing the legislation because abortion opponent should not have to subsidize the procedure in a general health insurance plan. The law prohibits insurance companies from offering abortion coverage as part of their general health plans, except when a woman's life is at risk. Those who want abortion coverage would have to buy supplemental policies, known as riders, covering only abortion.
However, Gale pointed out that by law, insurance companies calculate rates on an actuarial basis, meaning all policyholders' money is pooled together. The result is that even those without a policy covering abortions could still end up subsidizing the procedure, he said.
"Why the coy disguises in a rider?" Gale sharply questioned the state's attorneys. "Why not just prohibit abortion?"
Attorney Stephen McAllister, who represents the state, responded that the state may very well be able to do just that. He said the state has a strong interest in protecting "potential life."
The American Civil Liberties Union questions the law's constitutionality and wants a temporary injunction putting the measure on hold until its legal challenge is resolved.
"Making abortions more difficult for the sake of making them more difficult is unconstitutional," ACLU attorney Brigitte Amiri contended.
Gale is expected to issue his findings this weekend, with the parties having seven days to file any challenges to those recommendations. The final decision on the injunction will be up to U.S. District Judge Wesley Brown.
Republican Gov. Sam Brownback has extolled lawmakers to protect the unborn and establish a "culture of life." The ACLU argued in a court filing that the new insurance statute is but another example of laws passed this year that attempt to make it more difficult for women to get abortions.
Enforcement of two other new Kansas statutes — one dealing with restrictive abortion clinic regulations and another stripping federal funding from a Planned Parenthood chapter — have been blocked by federal judges ahead of trials to determine whether they're constitutional.
The judge questioned attorneys on whether they agreed that an insurance statute that created a burden on women's right to an abortion was OK as long is the burden isn't undue. But, he said, the purpose of the statue cannot be to create a burden on the right to an abortion.
McAllister replied that there is nothing in the legislative record stating that the purpose of passing the abortion insurance law was to create a burden on women.
Abortions in clinics can run from $450 early in pregnancy to as much as $1,500 as the pregnancy advances. Hospital-based abortions can cost thousands of dollars.
McAllister told the judge the statute was overwhelmingly passed by the Republican-controlled Legislature and signed by the governor.
"It expresses the wishes of the people of Kansas," McAllister said "That is entitled to some respect."
He argued that the potential monetary harm to women is not an irreparable injury that would justify an extreme remedy such as a temporary injunction.
The judge again asked: "If you are placing a substantial obstacle on the right to choose — if that is the case, don't we have irreparable harm?"
Gale also grilled attorneys for the ACLU, at one point telling them he was concerned about the quality of an affidavit they submitted to support their request for an injunction and rejecting their request to file more a extensive one.
The judge also expressed skepticism about the ACLU claim that the abortion insurance law violated the equal protection clause of the 14th Amendment because Kansas women would not be able to buy comprehensive health care insurance for all of their medical needs but allows men to do so.
Other states have similar statutes prohibiting private health insurance companies from covering abortions unless coverage is obtained through an optional rider. Missouri's law has been in effect for more than 28 years, and Kentucky has had one in effect for 27 years. Oklahoma passed one four years ago.
But the ACLU's challenge to the constitutionality of the Kansas statute also has widespread implications to other states because it challenges a provision in the federal health care overhaul that authorized the states to prohibit abortion coverage in policies sold on the state exchanges. The ACLU sued Kansas because it was the first state whose law banning such coverage went into effect, Amiri said.
Besides Kansas, other states that elected to prohibit abortion coverage through the exchanges include Arizona, Florida, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and Virginia.