Last Thursday, a federal judge in Kansas denied the ACLU’s motion for a preliminary injunction against the enforcement of a state law that bars insurance plans from covering elective abortions unless women or their employers purchase a separate rider calculated to cover all associated costs.  The law is a clear step in the wrong direction for ensuring that a woman’s choice is protected.  As the ACLU’s motion points out, employers can refuse to buy the rider, women may not buy a rider if they don’t anticipate needing an abortion (and, really, who does?), or it may just be way too expensive for women to purchase.  In spite of the courts denial, however, all is not lost.  While the judge held that the ACLU had not adequately shown they would prevail on the merits, something any party seeking a preliminary injunction must demonstrate to win the motion, he clearly pointed out what the ACLU must do to prevail at trial.

The United States Supreme Court held in Planned Parenthood v. Casey that the government can act to further its legitimate interest in protecting potential life, but can never enact a statute or regulation that will have the purpose or effect of creating substantial obstacles for a woman seeking an abortion to receive one.  This is where the ACLU’s case fell short in the eyes of the court.  The court found that the ACLU’s motion was based on the argument that the purpose of the statute was to place obstacles, which the judge believed the ACLU failed to show.  Instead, he accepted the government’s assertion that the purpose was merely to prevent consumers from being “forced” to support a procedure they oppose through their insurance premiums.

So what’s left for the ACLU?  In the trial on the merits, it can still show that the statute has the effect of placing obstacles in the way of women seeking an abortion.  The ACLU’s Program Director already provided a sworn declaration that some ACLU members would lose their coverage and face financial difficulties.  While the judge hinted that this may be insufficient, the ACLU likely will have no problem finding more evidence, and strong evidence, that the statute completely forecloses the option of abortion for some women, clearly eliminating their choice.

According to the Guttmacher Institute, a non-profit authoritative on issues of reproductive health, nationally, 69% of women who receive abortions have incomes below 200% of the federal poverty level.  That’s an income of less than $22,000 a year for a single woman without children.  While the abortion rates among women in higher income groups are decreasing, abortion rates for women with incomes below 100% of the federal poverty line (meaning women who make about $10,000 or less per year) are only increasing.  While the poorest women likely receive Medicaid and thus, in Kansas, only receive abortion coverage in cases of rape, incest and life endangerment, there are surely numerous women who are “too rich” for Medicaid but too poor to pay for an additional rider.  Considering that Kansas is either at or above national rates of poverty among women, the ACLU shouldn’t have a problem showing there are plenty of women who would not be able to afford coverage.

Even if the ACLU is able to demonstrate that the law has an illegal effect, the most interesting argument that the ACLU advanced, and that we hope it keeps advancing, is that the statute discriminates on the basis of sex by denying coverage to women for all of their reproductive needs while providing men with full coverage.  However, the court held that, since the statute’s purpose was to protect those opposed to abortion from having to pay for it through their premiums, this argument was precluded by the Supreme Court’s holding in Bray v. Alexandria Women’s Health Clinic that opposition to abortion is not gender discrimination.  But the Kansas statute isn’t just a group of activists blocking the entrance to an abortion clinic.  This is the state requiring that insurance not be provided to women because they are women.  As Justice Stevens pointed out (way ahead of his time on this one) in his dissent in General Elective v. Gilbert, a case in which an employer refused to provide insurance coverage for pregnancy, “by definition such a rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male.”   After the majority in the case disagreed, Congress responded by passing the Pregnancy Discrimination Act, acknowledging that discrimination on the basis of pregnancy was sex discrimination.  This recognition of sex discrimination has finally started to catch on in the courts too (see here).  Abortion is necessarily and completely an element of pregnancy.  So, if it is discrimination on the basis of sex to treat women differently because they are pregnant, how can it not be discrimination on the basis of sex to treat women differently because they seek to terminate a pregnancy?  It’s an important argument to continue to explore and advance and it will be exciting to see if the ACLU is up to the challenge.

With many tools still available and compelling arguments to make, the ACLU hasn’t lost this one yet, not even close.  The statute should, and quite possibly will, be declared invalid.