D.Kan.: denies preliminary injunction against Kansas law banning private insurance companies from insuring abortions

The District of Kansas rejected a motion for a preliminary injunction to enjoin a Kansas law that banned insurers from covering abortions.  The American Civil Liberties Union of Kansas and Western Missouri (ACLU) brought the action on behalf of its members.  American Civil Liberties Union v. Praeger, No. 11-2462-WEB-KGG, 2011 WL 4537736 (D. Kan., Sep. 29, 2011).  Judge Wesley E. Brown, nominated by President John F. Kennedy, wrote the opinion of the court. At age 104, Judge Brown is the oldest federal judge currently hearing cases and the oldest federal judge in US history.

On July 1, 2011, a statute took effect in Kansas that prohibited insurance companies in the state from providing coverage for abortions other than those needed to save the life of the mother.  The ACLU brought a claim against the Kansas Insurance Commissioner under 42 U.S.C. § 1983 to challenge the statute.  The ACLU sought a preliminary injunction, arguing that the statute violated the Due Process and Equal Protection rights of ACLU members.  A magistrate judge denied the motion, and the ACLU objected to the magistrate judge’s Report and Recommendation.

Judge Brown first addressed a dispute about the burden of proof the plaintiffs were obligated to satisfy.   The defendant argued that if an injunction would alter the status quo, then plaintiffs must meet a higher burden. Furthermore, the defendants contended that the injunction requested in this case would alter the status quo because the law had gone into effect.  The court disagreed. It explained that the plaintiffs’ requested injunction would maintain the status quo that existed just before the dispute arose, and that therefore the plaintiffs’ burden should not be raised.

The court next turned to the merits of the plaintiffs’ request for a preliminary injunction.  It first rejected one of the magistrate’s reasons for ruling against the plaintiffs. The magistrate had ruled that the plaintiffs failed to show they would suffer irreparable harm without an injunction because they failed to supply adequate evidence.  The plaintiffs argued that a violation of a constitutional right is per se irreparable harm, and the court agreed.

However, the court denied the injunction on the grounds that the plaintiffs had failed to prove likelihood of success on the merits.  The first rejected the likelihood of success under the Due Process Clause.  The court explained that under Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992), “a law in this context is invalid if it has the purpose or effect of creating a substantial obstacle to abortion.”  According to the court, the ACLU was challenging the law only on the basis that it was enacted for an illegitimate purpose, and not that it had an illegal effect.  Citing to Mazurek v. Armstrong, 520 U.S. 968 (1997), the court held that plaintiffs had the burden to prove “that the Kansas legislature’s predominant motive in enacting this law was to create a substantial obstacle to abortion.”  The defendant was able to present other motives, such as allowing insurance customers to avoid subsidizing abortions with their insurance premiums.   The plaintiffs, the court found, had not presented evidence that these motives were not present in the legislature.

The court then rejected the likelihood of success of the plaintiffs’ claim under the Equal Protection Clause.  With little discussion, it held that it would apply rational basis scrutiny to the statute and that “the law appears to rationally further a state interest in allowing the State’s citizens to avoid paying insurance premiums” that subsidize abortions.

The court concluded its opinion by denying the plaintiffs’ request to provide more evidence and granting their request for an expedited schedule for discovery and summary judgment.

–Nate Vogel, University of Pennsylvania Law School, class of 2011

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