The American Civil Liberties Union of Kansas filed a lawsuit on Tuesday against a new Kansas law that bans the coverage of abortion as part of standard private health insurance plans. Of the 13 abortion coverage bans that have been passed in state legislatures since 2010, the Kansas law is the first to be challenged in court.
Eighty-seven percent of employer-based insurance policies nationwide covered abortion as of January 2011, according to the Guttmacher Institute, a reproductive health research organization. But Kansas lawmakers passed legislation in May that forces private insurance companies to remove abortion from the list of standard procedures they cover, except when the mother's life is at risk. A woman would have to buy a separate insurance plan to cover abortions in cases of rape or serious health risks, and some insurance companies have said they would not offer such a rider.
"It would be no different than the state making women pay a tax on abortion," Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, told HuffPost. "It's part of the onslaught of laws we're seeing nationally, and particularly in Kansas, that want to punish and shame women for choosing abortion."
Although the insurance plans covering abortion are not paid for by the state or with taxpayer money, proponents of the ban say that it frees employers from having to "underwrite" abortion coverage for their employees.
"It is anything but unreasonable to insist that morally opposed individuals and businesses be freed from underwriting abortions, especially now that official Kansas statistics show fully 40 percent of abortions are performed on women who’ve had one, two, three or more before," said Mary Kay Culp, executive director of Kansans for Life.
Amiri said the ACLU is challenging the law in federal court on two bases: It's unconstitutional, because it was passed with the purpose of making it more difficult for women to obtain and pay for abortion care, and it discriminates based on sex.
"Kansas has prohibited women from buying policies that include abortion coverage, but there is no restriction from the state about any sort of service that men need," she told HuffPost. "The men in Kansas have access to fully comprehensive health coverage, and the women don't."
If the insurance bans being passed in the states are intended to discourage abortions, recent studies suggest they will not have their intended effect. In 2008, only 12 percent of abortions were paid for with private insurance, according to the Guttmacher Institute. About two-thirds of women who had private insurance still paid out of pocket for their abortion procedures, which might have been because they hadn't met their deductibles or because they didn't want their employer or primary policy holder to find out about the abortion.
The ACLU says it's targeting the Kansas law because it was the first to go into effect, but it will be looking more closely at the abortion coverage bans in other states as their effective dates approach.
"We're talking about dictating to private insurance companies what they can and cannot sell to their customers for political reasons, and that seems wrong," Amiri said.