Kansas attempts restricting insurance coverage for abortions


A magistrate judge recommended Monday that a federal court deny a request to temporarily block enforcement of a new Kansas law restricting insurance coverage for abortions, finding that the American Civil Liberties Union failed to present sufficient evidence that its members will suffer irreparable harm while the case is decided.

U.S. Magistrate Judge Kenneth Gale rejected the ACLU’s efforts for a preliminary injunction barring the law, which took effect July 1. 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.

The decision is only a recommendation to U.S. District Judge Wesley Brown, the 104-year-old federal judge who will make the final decision.

“While we await the district court’s ruling, we maintain that the state must not be allowed to stand in the way of a woman’s access to health care. Thousands of women in Kansas will lose coverage for vital services,” ACLU attorney Brigitte Amiri said of the magistrate’s recommendation.

The ACLU has until Sept. 26 to submit objections to Gale’s recommendation.

“We are pleased with the Court’s ruling,” Jeff Wagaman, deputy chief of staff for the Kansas attorney general’s office, said in an emailed statement.

In his ruling, Gale said the ACLU had failed to prove any of its members would be harmed by the law.

But Weatherford’s affidavit contended the ACLU has members who will lose or have already lost insurance coverage for abortion because of the new Kansas law, and that some members are unable to purchase a rider to their policy to cover abortions because some insurance companies have not made such riders available. She said one such member will lose coverage Oct. 1 when her policy is renewed.

Kari Ann Rinker, the state coordinator for the Kansas chapter of the National Organization of Women, said she was the unnamed ACLU member cited in the affidavit. Her insurance policy expires Oct. 1 and the company does not offer a rider on her personal policy. She has a 12-year-old daughter also covered on her policy.

“The decision has real and immediate impact, very short immediate impact on me and my family,” Rinker said. “My daughter is on that policy, so it adds an extra element of urgency to me at this point in time to be living out what so many Kansas women can possibly be living with.”

Gale noted that while the lawsuit challenges the new law’s purpose, the irreparable harm inquiry in a temporary injunction must focus on the likely effect on the ACLU’s members. He said the group had provided “no foundation information of any kind” to prove the damage.

“Because the Act may leave women in the position of paying for their own care, the cost of the care relative to the financial ability of the woman is relevant — perhaps critical — to the irreparable harm inquiry,” Gale wrote. “However, the general statement in the declaration that the Act will impose ‘financial difficulties’ on some members is not a conclusion to which the Court can subscribe without further support.”

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.

Mary Kay Culp, executive director of Kansans For Life, called Gale’s recommendation “the least that can be expected” and said her group pursued the law after it received phone calls from private employers who said they didn’t want to pay for abortions.

The ACLU’s challenge in Kansas carries implications for other states because it challenges a provision in the federal health care overhaul that 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 request for the injunction did not address that issue, however, because the exchanges won’t begin until 2014.

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