As some of you may have read here before, I am a participant in the ACLU lawsuit filed against the Insurance Commissioner of the State of Kansas.  I attended the first court proceeding on Friday, during which the ACLU sought an injunction to prevent continued implementation of the law passed on July 1.  My personal insurance policy is up for renewal on October 1, so this injunction is important for my daughter and myself, so that we may retain the insurance coverage for abortion that my current policy offers.

The ACLU’s suit focuses on three points: The law acts as an unconstitutional tax on women, it serves no legitimate state interest, and it constitutes gender discrimination.  Brigitte Amiri with the ACLU’s Reproductive Freedom project has worked to defend reproductive justice for the past 11 years.  Her constitutional knowledge on the subject is vast.  She spoke to all three of these points during Friday’s hearing. The brief submitted by the ACLU and to which she contributed provides legal and constitutional context to this debate. 

I have watched this abortion/insurance debate played out nationally with the Stupak Amendment and within my state as I testified in opposition to this court-challenged statute during the 2010 legislative session.  As a pro-choice woman, it has always felt personal to me.  As a citizen of Kansas, I remain outraged by the “anything goes” attitude toward restricting and quite possibly completely eliminating abortion within the state.  Living here, it is easy to forget that women’s right to this health care consists of more than just words that are uttered in defense against repeated legislative attacks.  It is grounded in our very constitutional rights and freedom and there are is a great deal of court precedence that reflects this.  The ACLU is intent upon reminding the state of Kansas of this, as it seems as if they have acted in either defiance or willful ignorance of these facts. 

There is no doubt that states can pass restrictions.  They certainly have and will, no doubt, continue to do so.  Kansas, in particular ranks among the states with the most restrictive abortion policies in the nation.  There are limits to these restrictions, however.  From the ACLU’s brief to the court:

A law restricting abortion is unconstitutional if either the legislator’s purpose or the law’s effect is to impose an undue burden on a woman’s right to obtain abortion care. 

From Planned Parenthood v. Casey:

A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not to hinder it.

The legislature’s purpose was discussed on Friday within the context of the legislative session.  It is also addressed in the ACLU brief.

The purpose behind the Act- to inhibit a woman’s ability to pay for and access abortion care- is clear from the legislative and political context from which it emerged. 

The ACLU is referring to the repeated statements from our governor and his legislative majority promising to promote a “culture of life” from Topeka.  The onslaught of restrictions, which include a pre-viability abortion ban (“fetal pain”), the Title X defunding of Planned Parenthood, notarized dual parental notification, TRAP and the insurance ban under challenge were all passed during this legislative session.  In response to this, an attorney for the state defended these laws against the claim that they are an all-out assault on the right to choose, instead referring to them as “a theme.”  He stated that it is not uncommon for legislative bodies to choose a theme for a session. 

So the chosen 2011 legislative “theme” was abortion?  Kansas, like much of the nation is in the midst of an economic crises, unemployment remains high, the legislature has abolished the arts and slashed education funding, we have the worst infant mortality rate in the nation for African American children and the legislative theme was…abortion?  I knew this, many women in Kansas suspected this, but to hear it uttered in a court of law was almost surreal.

The state attempts in their submitted brief to explain how this law furthers their right toward “informing a woman’s free choice”…. 

It is rational and legitimate for the state to ensure that women are fully informed and aware of the actual monetary cost of abortions.     

They state that women should be informed about “the financial costs of a decision to abort”.  When I think about my friend, Tiffany Campbell and other women like her, like many medical procedures the true financial costs associated with such abortions are often unknown.  This rider system will in no way contribute to additional “knowledge”.  It will only eliminate choices.  Additionally, a women’s ability to provide for a child is largely due to timing and personal circumstance.  How can this this knowledge possibly contribute to that decision?   In fact, many women have no knowledge that this legislation has passed, they will only become aware once they are in need of an abortion and cannot obtain one due to cost. 

The defense went on to state that they have the right to ban abortion in insurance policies by including the following argument in its brief…

It is rational and legitimate to promote childbirth over abortion, just as congress has done under federal law. 

Quoting a case the state said the “State unquestionably has a strong and legitimate government interest in encouraging normal childbirth.”   The state also cites the Hyde Amendment.   Judge Gale then pointed out that these cases that the state cited were all dealing with public funds.  This case being argued deals with private funds and private insurance policies.

As State Coordinator for Kansas NOW, I often think about the ways that the state could be promoting and advancing the health and well being of women…if they weren’t fixated on ensuring women are locked into unwanted pregnancies.  If the state were truly intent upon promoting childbirth over abortion, than why don’t they pass laws subsidizing child care?   

The ACLU brief states…

The court has recognized two primary interests as legitimate for regulating a woman’s right to abortion- the state’s interest in potential life, and its interest in protecting the woman’s health.

This protection of potential life cannot be applied randomly or it could be used as an excuse to completely prohibit abortions altogether.  The judge pointed this out in court asking the state’s defense, “Why the coy disguises in a rider? Why not just prohibit abortion?”  The ACLU cites a Virginia case stating that the state’s objective must be “genuine, not hypothesized or invented post hoc in response to litigation.”  Regarding women’s health, this act actually harms women’s health in that in many cases it could delay her ability to obtain an abortion. 

This so-called moral debate over “intermingling of insurance funds” has gone on long enough.  When the Kansas legislature debated this bill in 2010, it quickly evolved into a discussion on government intrusion in health care and pointed out how dangerous this kind of legislation can be.  If we can label an abortion as morally unfavorable healthcare… then why not smoking, obesity and Viagra? 

As I wait for the next day in court, I am hopeful that our judicial system will see the facts and leave ideology behind and that justice will ultimately prevail.