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Suit Over Kan. Abortion Coverage Restrictions Could Be Bellwether

Suit Over Kan. Abortion Coverage Restrictions Could Be Bellwether

August 18, 2011 — A lawsuit filed in federal court on Tuesday against a Kansas law prohibiting private health plans from covering abortion care "stands to have big, national impact," Sarah Kliff writes on Ezra Klein's Washington Post blog (Kliff, "Ezra Klein," Washington Post, 8/17).

The American Civil Liberties Union of Kansas and Western Missouri is asking the court to issue an injunction against the law, which took effect July 1. The law bars health insurance plans from covering abortion care except in cases to save a woman's life, and it also bans the sale of abortion coverage through health insurance exchanges established under the federal health reform law (PL 111-148). However, the law allows insurers to offer stand-alone policies for abortion coverage (Women's Health Policy Report, 8/17).

Kliff predicts that the lawsuit could have a "ripple effect" on how states regulate private abortion coverage, which until last year "was not a key target for abortion restrictions." About 87% of employer-sponsored plans cover abortion care, according to Kliff. However, the health reform debate cast a spotlight on abortion coverage, and 13 states in 2010 passed laws restricting insurers from covering the procedure.

The Kansas law is the first to be challenged. Brigitte Amiri, senior staff attorney for ACLU's Reproductive Freedom Project, said the Kansas case "will likely set a precedent for what cases in other states could look like."

The Kansas case also is important to watch because abortion-rights supporters will be "pioneer[ing] some untested arguments," according to Kliff. Most abortion lawsuits focus on how states restrict access to abortion care, using the constitutional test of whether a law places an "undue burden" on women. "The Kansas law doesn't restrict any particular procedure, but rather who can pay for it," Kliff writes, adding that ACLU argues that restricting payers also creates an undue burden. According to the organization's court brief, the law "is directed exclusively at making it more difficult for women to obtain and pay for abortion care" and thus is "no different than a law that would require women to pay a tax to obtain an abortion."

ACLU also argues that the Kansas law violates the Equal Protection Clause, which guarantees that "all similar persons similarly situated should be treated alike." According to ACLU, "Kansas men are permitted to buy comprehensive insurance plans that cover all of their potential medical expenses, but Kansas women are prohibited from doing the same."

Kliff concludes, "All of these arguments are relatively untried when it comes to what abortion restrictions the courts do, and don't, allow. And with so many similar laws just now coming online, their success will no doubt be closely watched" ("Ezra Klein," Washington Post, 8/17).