ACLU wants to reshape pleading to block KS insurance law

District Judge Wesley Brown

UPDATE, Thurs. Sept. 29 : Judge Brown denies ACLU injunction

Kansas’ new health insurance law barring elective abortion coverage in private insurance plans without individually-purchased “riders” passed its first hurdle last Monday.  That’s  when U.S. Magistrate Kenneth Gale forwarded his recommendation to U.S. District Judge Wesley Brown that a preliminary injunction be denied.

(Noteworthy is that Brown, age 104 and appointed by President Kennedy in 1962, ties an age record for the federal bench. He is phasing out his criminal caseload but still hears civil cases, relying on other judges to work up a recommendation.)

The ACLU of Kansas & Western Missouri had sought a preliminary injunction based on the claim that the lack of insurance-paid abortion showed gender discrimination and functioned as an impermissible “tax” on abortion. 

However, similar laws protecting the conscience rights of employers and employees in seven other states [Idaho, Kentucky, Missouri, Nebraska, North Dakota, Oklahoma, Wisconsin] have survived various legal challenges.

In fact, for over two decades, part of eastern Kansas has been functioning under Missouri’s ‘abortion-free’ health insurance law since Blue Cross of Kansas City offers one policy for both states!

But before Judge Brown issues his ruling, the ACLU filed a motion Thursday to “correct an evidence problem in an affidavit,” as the Associated Press phrased it. But this is quite an understatement of the failure of the ACLU, according to both Judge Gale and the State of Kansas’ legal defense team.

In his ruling to deny an injunction, Gale wrote the ACLU “has failed to present evidence sufficient to establish its “clear and unequivocal right to relief” and that the “Court is unable to ascertain how the [affidavit provided] arrived [at] the general conclusions made.”

The ACLU neglected to furnish, at a bare minimum:

• the specific number of Kansas ACLU women-members;
• how many were unable to purchase abortion policy ‘riders’;
• how the ACLU program director was in any way qualified to assess the status of members and how they would be harmed.

The Kansas defense team submitted a rebuttal Monday to Judge Brown, supporting Gale’s denial of injunction, saying the ACLU is ineligible for “a second bite at the apple.”

The Kansas defense team wrote that the ACLU had more than five weeks to assemble evidentiary support for its request of irreparable harm and “merely alleging a constitutional injury did not eliminate plaintiff’s obligation to provide the Court with a factual basis. …The crux of plaintiff’s claim is that the challenged statute was passed for an unconstitutional purpose. Yet plaintiff offers no facts in support of the ‘purpose’ argument.”(underlining in attorney filing)

Kansas business owners sought this law, passed as HB 2075.  It does not deny medical coverage for life-of-the-mother situations, including ectopic pregnancy.  It also does not deny coverage for miscarriage, as the ACLU falsely tried to assert in the original pleading.

As has been pointed out in earlier posts, just as the right to travel freely does not force other citizens to buy me a car, the so-called right to abortion should not require citizens to pay for it. “Abortion is inherently different from other medical procedures because no other procedure involves the purposeful termination of a potential life,” the U.S. Supreme Court ruled in the 1980 Harris v McRae case.