ACLU Sues Kansas Over Limits on Abortion Insurance

Kansas City, Mo. – A new Kansas law that bans insurers from providing elective abortion coverage is the state's third abortion-related measure to draw a legal challenge in recent months.

A federal lawsuit filed Tuesday by the American Civil Liberties Union contends the law is unconstitutional and discriminates against women because it doesn't apply similar insurance limits on men's health care needs.

“The state enacted a law with no purpose other than to try to make it more difficult for women to obtain abortion care and to pay for that care,” said Brigitte Amiri, senior staff attorney with the ACLU's Reproductive Freedom Project.

Kansas is among 10 states that have passed new laws restricting insurance coverage of abortion since 2010, Amiri said. The ACLU singled out Kansas because its law was the first to take effect, she said.

The insurance law was among five new abortion restrictions passed this year by a more conservative Kansas Legislature and signed into law by Gov. Sam. Brownback, a Republican and a staunch abortion opponent.

However, abortion rights advocates have fought back, filing lawsuits against two of the new laws – one that imposes new licensing rules on abortion clinics and another that strips Planned Parenthood of federal family planning funds.

Federal judges have temporarily blocked both those laws. The state – with the help of private, taxpayer-funded lawyers – is now appealing.

All the litigation drew a sharp rebuke Tuesday from Brownback spokeswoman Sherriene Jones-Sontag.

“There seems to be a pattern here of 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.”

The courtroom battles go well beyond Kansas.

States have enacted 49 abortion restrictions this year, compared with 34 in 2010, according to NARAL Pro-Choice America. And lawsuits have followed.

Here's a sample of what's happening nationally, according to various reports:

-Lawsuits have been brought in North Carolina and Indiana to stop state attempts to take federal funds away from Planned Parenthood out of concern that they in effect subsidize abortion.

-An ongoing battle is taking place in South Dakota over a law that requires women to wait three days for an abortion and to undergo counseling at pregnancy help centers that discourage abortion.

-An abortion rights group has filed a lawsuit in North Dakota against a law that it says bars doctors from using one of two drugs that induce abortions.

-A lawsuit was filed in Texas to stop that state from imposing rules that require women seeking an abortion to undergo a sonogram and receive a description of the fetus.

The Kansas law at issue in Tuesday's lawsuit was approved near dawn during an overnight session as the Legislature wrapped up its business for 2011.

It bans private insurers from providing elective abortion coverage in Kansas, unless the procedure is necessary to save the mother's life. The bill still allows coverage for an abortion, but women have to purchase a separate rider at additional cost.

Abortion opponents say the law is intended to free businesses from subsidizing a procedure that they think is morally wrong.

“We feel very comfortable as that case works its way through the process, (the law) will be found to be within the purview of the state's authority,” said Rep. Lance Kinzer, an Olathe Republican and one of the Legislature's leading abortion foes.

Kinzer and others on his side of the issue note that other states, including Missouri, have similar laws on the books. They point to Blue Cross and Blue Shield in Kansas City as an example of an insurer that already complies with the Missouri restrictions.

Blue Cross and Blue Shield of Kansas City doesn't prepackage abortion coverage in any of its individual or group plans, spokeswoman Susan Johnson said Tuesday.

Johnson said abortion coverage is available if an employer chooses, but it must be added as an elective benefit, sometimes called a rider. The added cost can vary, depending on an array of factors, she said.

“Cost is difficult to gauge,” Johnson said.

However, individuals can't purchase the abortion coverage on their own, she said.

Johnson said only a “handful” of employers offer the added coverage for abortion.

Abortion rights supporters criticized the insurance restriction, saying it would require women to plan for catastrophic events – such as a rape or a medical emergency – that can't be anticipated.

“I just don't think the Legislature should be practicing medicine and determining what should be covered. Let the insurance companies determine that,” said Kansas Rep. Barbara Bollier, a Mission Hills Republican who fought the Kansas measure on the House floor.

Amiri of the ACLU said the lawsuit against Kansas was the first filed against this type of law in recent years.

However in 1992, the U.S. Court of Appeals for the 8th Circuit found that the Missouri law, enacted in 1983, was constitutional because it did not place an undue burden on women seeking abortions.

The Missouri law barred insurers from covering elective abortions except through optional riders purchased at an additional expense.

A woman who did not purchase the optional rider was denied coverage for her elective abortion. She challenged the law and won in district court, but she lost on appeal.

The federal appeals court said the woman didn't offer evidence that abortion coverage was unavailable or too costly.

Lawyers for the ACLU said Tuesday that their case is different from the one tried 19 years ago. Amiri said that neither the discrimination claim nor the contention that the law targeted abortion was raised in the Missouri case.

Amiri said she hopes the Kansas case might serve as a precedent for challenging similar laws in other states and deter the passage of such laws in the future.

“A win in this case sends a message to other state legislatures,” she said.

© 2011 McClatchy-Tribune Information Services

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