Judge probes basis of abortion insurance law

09/17/2011 12:00 AM

09/17/2011 12:08 AM

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 it was merely meant to place an undue burden on women seeking abortions.

Attorneys for the state told U.S. Magistrate Judge Kenneth Gale in Wichita that lawmakers were expressing "the conscience of its people" in passing the legislation because abortion opponents 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.

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 asked the state's attorneys. "Why not just prohibit abortion?"

Attorney Stephen McAllister, who represents the state, responded that the state may be able to do just that. He said it 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 said.

Gale is expected to issue his findings this weekend, with the parties having seven days to file any challenges. The final decision on the injunction will be up to U.S. District Judge Wesley Brown.

Gov. Sam Brownback has urged lawmakers to establish a "culture of life." The ACLU argued in a court filing that the new insurance law 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 laws — one creating 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.

On Friday, McAllister told Gale the insurance law 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.

Gale 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 a more extensive one.

Gale 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 men can do so.

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