Kan. seeks to end part of abortion insurance suit

TOPEKA, Kan. — Kansas asked a federal judge Wednesday to reject a claim that a new state law restricting insurance coverage for abortion discriminates against women.

Attorneys for state Insurance Commissioner Sandy Praeger said in court filings that the law "rationally" promotes several legitimate state interests, including "promoting childbirth over abortion." Praeger is the only defendant in the lawsuit, filed in August by the American Civil Liberties Union of Kansas and Western Missouri.

The new restrictions on insurance coverage were among several laws enacted this year in Kansas by anti-abortion majorities in the Legislature and Gov. Sam Brownback, a Republican abortion opponent who took office in January. Another law set out new regulations specifically for abortion providers, and two doctors who challenged those rules in federal court recently expanded their attack with a separate lawsuit in the state court system.

In the ACLU's case, U.S. District Judge Wesley Brown, in Wichita, already has rejected the group's request for an order preventing the state from enforcing the insurance law until the case goes to trial. The law, which took effect July 1, prohibits insurance companies from offering abortion coverage as part of general health plans, except when a woman's life is at risk, and patients wanting such coverage must buy supplemental, abortion-only policies.

If Brown grants the request from Praeger's attorneys, then the ACLU's case would narrow to the question of whether the law violates the constitutional right to due legal process of women seeking abortion coverage. The ACLU argues that the law also violates' a woman's right to equal protection under the law.

Praeger's attorneys said past U.S. Supreme Court rulings have established that opposition to abortion does not represent discrimination against women as a class. The attorneys also said the law itself "does not suggest any discriminatory intent, gender-based or otherwise." It says the state's goals include controlling insurance costs and "protecting the consciences" of residents who don't want their premiums subsidizing abortions.

"The state has a well-recognized interest in protecting potential human life, and in favoring childbirth over abortion," Praeger's attorneys wrote.

Andrew Beck, an ACLU attorney in New York, said he expected Praeger's attorneys to make such an argument. He said the law prevents women in Kansas from buying comprehensive health insurance but doesn't similarly restrict men.

"The law clearly discriminates against women," he said. "It singles out a category of health care that only women need."

The law also prohibits coverage of elective abortions in health policies offered through a state-level insurance exchange set up under last year's federal law overhauling health care. The ACLU has said its members include women who want private coverage for abortion and women who would obtain coverage through an exchange.

Meanwhile, the Kansas Department of Health and Environment has been unable to enforce new regulations for abortion providers because of legal challenges initiated by Dr. Herbert Hodes and his daughter, Dr. Traci Nauser. They perform abortions and provide other services at their offices in the Kansas City suburb of Overland Park and were unable to obtain a state abortion license under a law that also took effect July 1.

The regulations, drafted in June and revised in October, specify the equipment and drugs abortion providers must have on hand and set other standards. The rules also require providers to make patient medical records available for inspection by the health department.

Supporters contend the rules will protect patients, but the doctors argued in a federal lawsuit that the regulations are burdensome and medically unnecessary. U.S. District Judge Carlos Murguia in Kansas City blocked enforcement of the initial set of rules in July, and when the state issued its revised set, he told the parties in the lawsuit to analyze the differences.

The revised rules were supposed to take effect Monday. But last week, Hodes and Nauser filed their state lawsuit in Shawnee County District Court, and Judge Franklin Theis blocked enforcement of the regulations at least until he has a hearing Dec. 6 and 7.

"We wanted to enforce the rights secured to our clients under the state constitution," said Bonnie Scott Jones, an attorney for the New York-based Center for Reproductive Rights, which is representing the two doctors. She declined to discuss legal strategy further.

Officials in the health department and the attorney general's office did not immediately return telephone messages seeking comment.