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Kansas, ACLU go back and forth in Court over new law

by | Sep 27, 2011

By Kathy Ostrowski

U.S. District Judge Wesley Brown

The state of Kansas has asked U.S. District Judge Wesley Brown to reject the ACLU of Kansas & Western Missouri’s request to block enforcement of a new law that bans elective abortion payment in private health plans and future Obamacare-mandated state health exchanges. Pregnancies that truly threaten a woman’s life are exempted from the law and insurance companies may offer coverage for elective abortions in their private plans through separately-purchased

The attorney general’s office filed its response Monday after the ACLU challenged last week’s decision by U.S. Magistrate Judge Kenneth Gale. Judge Gale rejected the ACLU’s request for a preliminary injunction, concluding that the ACLU had not shown that its members will suffer “irreparable harm” from the law. He then forwarded his recommendation to Judge Brown who was technically assigned to this litigation. 

The ACLU 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!

U.S. Magistrate Kenneth Gale

But before Judge Brown issued his ruling, the ACLU filed a motion with him to “let it 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.

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 Kansas defense team submitted a rebuttal Monday to Judge Brown, supporting Gale’s recommendation to deny an 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 original).

Just as the right to travel freely does not force others 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.

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.

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Categories: Legislation