American Civil Liberties Union of Kansas and Western Missouri v. Praeger

Filing 20

MEMORANDUM AND ORDER denying 3 Motion for Preliminary Injunction; adopting 17 Report and Recommendations. Plaintiff's Objection to the Report and Recommendation is denied as moot. The Court directs the Magistrate Judge to set an expedited schedule for discovery and the filing of dispositive motions. Signed by District Judge Wesley E. Brown on 9/29/2011. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AMERICAN CIVIL LIBERTIES UNION
OF KANSAS AND WESTERN MISSOURI,
Plaintiff,
v.
SANDY PRAEGER, Kansas Insurance
Commissioner, in her official capacity,
Defendant.

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No. 11-2462-WEB-KGG

Memorandum and Order
Plaintiff American Civil Liberties Union of Kansas and Western Missouri (“ACLU”)
filed this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to halt
enforcement of a Kansas statute which took effect on July 1, 2011. A portion of the statute
essentially prohibits insurance companies in Kansas from providing coverage for “elective”1
abortion services under comprehensive health insurance policies.2

2011 Ks. H.B. 2075, §8(a),

amending K.S.A. § 40-2124. The law provides that coverage for such services may be obtained
through purchase of a separate optional rider, the premium for which must be calculated so as to
fully cover the estimated cost of covering elective abortions per enrollee on an actuarial basis. Id.

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The statute allows a comprehensive policy to cover any procedure that is “necessary to
preserve the life of the mother.” It prohibits coverage for “elective” abortions, which the statute
defines to mean “an abortion for any reason other than to prevent the death of the mother....”
2011 Ks. H.B. 2075, § 8(c)(2).
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2011.

The law applies to any health insurance policy issued, amended or renewed after July 1,

The complaint alleges that this provision and other portions of the statute violate the rights of
plaintiff’s members under the Due Process and Equal Protection provisions of the Fourteenth
Amendment.
Along with the complaint plaintiff filed a motion for preliminary injunction. Doc. 3. The
motion seeks to enjoin enforcement of the above-described provision of the statute. Pursuant to
28 U.S.C. § 636(b)(1)(B), the court previously referred the motion to U.S. Magistrate Judge
Kenneth G. Gale for a Report and Recommendation. Judge Gale held a hearing on September
16, 2011, and issued a Report and Recommendation on September 19, 2011. The Report found
that the affidavits submitted by plaintiff in support of the motion were lacking in foundation and
were inadequate to show irreparable injury. The Report recommended that the court deny the
motion for preliminary injunction on that basis. Plaintiff has filed a timely objection to the
Report and Recommendation.
I. Standard of Review.
On a matter referred to a magistrate under 28 U.S.C. § 636(b)(1)(B), the court makes a de
novo determination of all matters objected to. See § 636(b)(1) (“A judge of the court shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”). De novo review requires the district court to
consider relevant evidence of record and not merely review the magistrate’s recommendation.
Griego v. Padilla (In re Griego), 64 F.3d 580, 584 (10th Cir. 1995). The district court may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. It may also receive further evidence or recommit the matter to the magistrate
judge with instructions. § 636(b)(1).

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II. Standards for a Preliminary Injunction.
A preliminary injunction is an order, entered before a final determination of the merits,
that commands a party to do or refrain from a specified act. The basic purpose of a preliminary
injunction is to preserve the relative positions of the parties until a trial on the merits can be held.
University of Texas v. Camenish, 451 U.S. 390, 395 (1981). To obtain a preliminary injunction,
the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm
to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the
preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not
adversely affect the public interest. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1255
(10th Cir. 2003).
“A preliminary injunction is an extraordinary remedy; it is the exception rather than the
rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.1984). It “constitutes drastic relief to
be provided with caution ... [and] should be granted only in cases where the necessity for it is
clearly established.” United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v.
Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989). The right to relief on a
preliminary injunction “must be clear and unequivocal.” Greater Yellowstone Coal, 321 F.3d at
1256.
Injunctions that disrupt the status quo are particularly disfavored and “must be more
closely scrutinized to assure that the exigencies of the case support the granting of a remedy that
is extraordinary even in the normal course.” Beltronics, USA, Inc. v. Midwest Inventory
Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quoting Schrier v. Univ. of Colo., 427
F.3d 1253, 1259 (10th Cir.2005)). When a preliminary injunction would alter the status quo, the

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movant bears a heightened burden and “must make a strong showing both with regard to the
likelihood of success on the merits and with regard to the balance of harms.” O Centro Espirita
Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en banc), aff'd,
546 U.S. 418 (2006). The status quo refers to the last peaceable uncontested status existing
between the parties before the dispute developed. Nova Health Systems v. Edmondson, 460 F.3d
1295, 1298, n.5 (10th Cir. 2006).
Defendant contends the injunction sought by plaintiff would disrupt the status quo,
because the statute now being challenged has been in effect since July 1, 2011, and plaintiff
seeks to alter the legal landscape by enjoining further enforcement of the law. Doc. 14 at 5.
Although this argument has facial appeal, the court concludes that the last uncontested status
between the parties before the dispute arose would be that which existed prior to the challenged
statute taking effect. Cf. Schrier v. University Of Colo., 427 F.3d 1253 (10th Cir. 2005) (last
peaceable uncontested status between the parties was prior to plaintiff’s ouster as chair of his
university department). As noted by the concurrence in Centro Espirita, “[w]hen a statute is
newly enacted, and its enforcement will restrict rights citizens previously had exercised and
enjoyed, it is not uncommon for district courts to enjoin enforcement pending a determination of
the merits of the constitutional issue.” O Centro Espirita Beneficiente Uniao Do Vegetal v.
Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004) (en banc) (McConnell, J., concurring), cert.
granted sub nom on other grounds, Gonzales v. O Centro Espirita Beneficiente Uniao Do
Vegetal, 544 U.S. 973, 125 S.Ct. 1846, 161 L.Ed.2d 723 (2005). On the other hand, “[w]hen a
statute has long been on the books and enforced, ... it is exceedingly unusual for a litigant who
challenges its constitutionality to obtain (or even to seek) a preliminary injunction against its

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continued enforcement.” Id. As suggested by Judge McConnell, this is consistent with the
general rule on status quo: “[I]t is sometimes necessary to require a party who has recently
disturbed the status quo to reverse its actions. Such an injunction restores, rather than disturbs,
the status quo ante, and is thus not an exception to the rule.” Id. This is particularly apt under
the current circumstances, because the Kansas law has a “rolling effect” that may impact
particular health insurance policies not immediately, but later when the policy is renewed, and in
fact plaintiff’s allegation is that one of its members will lose abortion coverage under a
comprehensive policy as of October 1, 2011. Under the circumstances, the court concludes that
the heightened standard for injunctions that alter the status quo does not apply to plaintiff’s
request for preliminary injunction.
III. Summary of Objections.
Magistrate Judge Gale’s Report addressed irreparable harm, which is an essential element
for obtaining a preliminary injunction. He examined the sworn declaration of plaintiff’s
Program Director, Ms. Weatherford, which stated in part that some ACLU members have lost
their insurance coverage for abortion and some will lose such coverage in the future, including a
member who will lose her current coverage on October 1, 2011, and that for some members
“paying for an abortion would impose financial difficulties.” Judge Gale said he was unable to
ascertain how the Program Director collected the information presented or how she arrived at the
general conclusions set forth, because there was an absence of foundation for her statements. He
further said “[a]n explanation of how the Act, which requires the issuance of separate riders for
abortion coverage, will likely result in the loss of insurance to Plaintiff’s members who may
require the procedure – with foundation for those claims – is lacking.” He found the cost of

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abortion care relative to the financial ability of the woman “is relevant – perhaps critical – to the
irreparable harm inquiry,” but the Program Director’s general statement that the Act will impose
“financial difficulties” on some members was too vague and unsupported for the court to
conclude there was irreparable harm. Judge Gale also denied plaintiff’s request to supplement or
add to the submitted declarations, noting that the motion was filed a month before the hearing
and plaintiff had not claimed an inability to provide evidentiary support for its motion in a timely
fashion. In sum, he found, “[b]ecause Plaintiff has failed to present evidence sufficient to
establish its ‘clear and unequivocal right to relief,’ the motion must fail.” Doc. 17 at 11.
Plaintiff contends the Magistrate’s conclusion is inconsistent with the well-established
principle that violation of an individual’s constitutional rights, even temporarily, constitutes
irreparable harm as a matter of law. Plaintiff contends the ban on comprehensive coverage for
abortion services violates its members’ rights and thus causes irreparable harm as a matter of
law. Doc. 18 at 5 (citing, inter alia, Ezell v. City of Chicago, ___F.3d___, 2011 WL 2623511
(7th Cir., Jul. 6, 2011) (district court mistakenly assumed violation of constitutional rights was
not irreparable harm)). As such, plaintiff argues, the Magistrate’s comment that the cost of care
was critical to a showing of irreparable harm is contrary to settled law.
Plaintiff also objects to the Magistrate’s finding of a lack of foundation for Ms.
Weatherford’s declaration. It argues the declaration was based on her personal knowledge and
was otherwise simply a combination of common sense and the undisputed facts reflected in the
parties’ factual stipulation. Moreover, plaintiff argues it should be allowed to cure any
evidentiary defect, and asks that it be allowed to submit an additional declaration from one of its
members. It argues the court should reject the Magistrate’s recommendation, that it should be

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allowed to cure the evidentiary defect, and that the court should grant the motion for preliminary
injunction. Alternatively, plaintiff asks the court to set an expedited schedule for discovery and
summary judgment so that a ruling on the constitutionality of the law may be realized as quickly
as possible.
IV. Discussion.
Plaintiff correctly points out that when an alleged constitutional right is involved, most
courts, including the Tenth Circuit, hold that no further showing of irreparable injury is
necessary. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). Based on that doctrine,
plaintiff argues the Magistrate’s finding of no showing of irreparable harm is based on an error
law.
Even assuming the Magistrate’s conclusion on irreparable harm was error,3 the court
concludes the motion for preliminary injunction should be denied for other reasons. Plaintiff
claims for purposes of the instant motion that the Kansas law is invalid – not because it has the
effect of placing a substantial obstacle in the path of a woman seeking an abortion — but because
the legislature’s purpose was to create such an obstacle. Doc. 4 at 7-8, n.1. Although plaintiff’s

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The absence of any specific circumstances or facts surrounding the claims of plaintiff’s
members makes it difficult to say there is a clear showing of imminent injury -- one with a clear
and present need for equitable relief. The schedule for this motion was largely driven by
plaintiff’s allegation that one of its members would lose insurance coverage on October 1, 2011.
But plaintiff has presented no specific facts concerning that member or her insurance coverage.
For example, it is unknown whether it would be a financial difficulty for this member to pay for
an abortion if the need arose, whether an insurance rider is available to her from her insurance
company or from some other company, and the cost of any such alternative coverage. Moreover,
nothing in the record discloses whether, if the court were to issue the requested injunction, this
member’s insurance company would continue to provide abortion coverage as part of the
comprehensive health policy currently issued to her. The same is true with respect to plaintiff’s
other members.
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complaint does challenge the effect of the law, the instant motion is based solely on the Act’s
asserted unlawful purpose, not its effect. Perhaps for that reason, plaintiff has not provided
much in the way of an evidentiary record in support of the motion. After reviewing all of the
materials of record, and having listened to the arguments of counsel before the Magistrate,4 the
court concludes plaintiff has failed to show that it is likely to prevail on the merits of this
“invalid purpose” claim.
A. Legal Framework.
A brief review of the framework of abortion law is necessary to address the claim. It is a
constitutional liberty of a woman in this country to have some freedom to terminate her
pregnancy. Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 869 (1992). In
short, prior to the viability of her fetus, a woman has a right to choose to terminate her
pregnancy. Id. at 870. States, meanwhile, have a legitimate and important interest in protecting
the potentiality of human life – an interest recognized in Roe v. Wade that “has been given too
little acknowledgment and implementation by the [Supreme] Court in its subsequent cases.” Id.
at 871. At any stage of pregnancy, a State may further that interest by enacting rules and
regulations to ensure that the choice to terminate a pregnancy is thoughtful and informed. Id.
But prior to viability of the fetus, a State regulation is invalid if it has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an abortion. Id. at 877. “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 hinder it. And a statute

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The court listened to a recording of the arguments that was made available through the
court’s computer system.
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which, while furthering the interest in potential life or some other valid state interest, has the
effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a
permissible means of serving its legitimate ends.” Id. Subsequent to viability, on the other hand,
the State in promoting its interest in the potentiality of human life may, if it chooses, regulate
and even proscribe abortion, except where it is necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother. Id. at 879.
Casey observed that numerous forms of state regulation might have the incidental effect
of increasing the cost or decreasing the availability of medical care, whether for abortion or any
other medical procedure. Id. at 874. “The fact that a law which serves a valid purpose, one not
designed to strike at the right itself, has the incidental effect of making it more difficult or more
expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation
imposes an undue burden on a woman’s ability to make this decision does the power of the State
reach into the heart of the liberty protected by the Due Process Clause.” Id. Thus, “[r]egulations
which do no more than create a structural mechanism by which the State, ... may express
profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to
the woman’s exercise of the right to choose.” Id. at 877.
One other line of authority – the public funding cases – sheds some further light on the
nature of the abortion right. In Maher v. Roe, 432 U.S. 464 (1977), the Court clarified that the
right recognized in Roe was not an unqualified constitutional right to an abortion, but a right that
protects a woman from unduly burdensome interference by the State with her freedom to decide
whether to terminate her pregnancy. That right “implies no limitation on the authority of a State
to make a value judgment favoring childbirth over abortion, and to implement that judgment by

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the allocation of public funds.” Id. at 474. Thus, Maher found it permissible for the state and
federal governments to subsidize the medical expenses of childbirth for indigent women under
the Medicaid program, but to prohibit the use of such funds for abortion services. Such a
regulation, the Court said:
[p]laces no obstacles – absolute or otherwise – in the pregnant
woman’s path to an abortion. An indigent woman who desires an
abortion suffers no disadvantage as a consequence of [the State’s]
decision to fund childbirth; she continues as before to be
dependent on private sources for the services she desires. The
State may have made childbirth a more attractive alternative,
thereby influencing the woman’s decision, but it has imposed no
restriction on access to abortions that was not already there. The
indigency that may make it difficult – and in some cases, perhaps,
impossible – for some women to have abortions is neither created
nor in any way affected by [the State] regulation.
Id. at 474. The regulation thus did not impinge on the right recognized in Roe v. Wade.
As noted above, Casey said a law in this context is invalid if it has the purpose or effect
of creating a substantial obstacle to abortion. Plaintiff only challenges the purpose of the law in
this motion, arguing the following shows a legislative purpose to create a substantial obstacle.
The bill itself was passed in a legislative session that included passage of several other bills
regulating abortion. One of those bills was enjoined by a judge of this court based on a
preliminary finding that it was passed for the improper discriminatory purpose of preventing
Planned Parenthood from receiving federal family planning money because of that group’s
association with abortion care. See Planned Parenthood v. Brownback, 2011 WL 3250720, *15
(D. Kan., Aug. 1, 2011). The court notes that in the Planned Parenthood case, the evidence of
the act’s improper purpose included: a statement by the sponsor of the legislation, on the House
floor that the purpose of the bill was in fact simply to take away funds from Planned Parenthood;

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a showing that the act directly contradicted federal law governing use of the funds; and the
state’s asserted explanation for the law did not withstand simple scrutiny, leading the court to
conclude that it was a “post-hoc, ‘litigation-spawned’ attempt to find some alternative, benign
rationale.” Id. at *9-11. A second bill passed in the same session was likewise enjoined by a
judge of this court, based upon a finding that licensing requirements imposed upon abortion
clinics were likely unconstitutional. Hodes & Nauser, Mds, P.A. v. Moser, No. 11-2365-CM (D.
Kan. 2011). A third law imposed a ban on certain abortions after 20 or 22 weeks, which plaintiff
argues is contrary to the standard in Casey. H.B. 2218, 84th Leg. (Kan. 2011). In addition to
the passage of these other acts, plaintiff argues that the Act’s restrictions on insurance coverage
cannot be justified by the state’s interest in potential life, because the Supreme Court has said
such an interest may only be furthered by informing the woman’s free choice, not hindering it.
Likewise, it argues, the state’s interest in protecting maternal health is actually undermined
rather than furthered by this law, because the law takes away insurance coverage for abortions
that are necessary to protect a woman’s health. Plaintiff argues that the Act does not serve any
valid governmental purpose, but simply puts obstacles in the path of women seeking abortions,
making it unconstitutional. Doc. 4 at 11. “In sum, it is clear from the Act’s text and legislative
context, and from the fact that the Act does not serve a valid governmental interest, that the Act
serves no purpose but to make abortions more difficult [to obtain]. Id. Plaintiff argues that the
law fails even under a “rational basis” standard of review, because it does not further any
legitimate governmental interest. Id. at 12. Moreover, plaintiff argues that the law violates the
right to equal protection, because it allows men to buy comprehensive policies covering all of
their health needs, but prohibits women from doing the same. Id. at 13.

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B. Legislative Purpose.
In Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), the Tenth Circuit (with this
judge on the panel) struck down a Utah law based in part on what the court found was “the Utah
legislature’s intent ... to provide a vehicle by which to challenge Roe v. Wade, as demonstrated
by the legislature’s establishment of an abortion litigation trust account,” as well as by enactment
of a law that directly contradicted Supreme Court precedent. Id. at 1116. The State conceded in
that case that the Act was intended to prevent nontherapeutic abortions of nonviable fetuses after
20 weeks, contrary to Casey’s holding that a woman has a right to terminate her pregnancy prior
to viability. Id. at 1117. The court further found the law was invalid because it had an
impermissible effect – namely, it not only created a substantial obstacle to obtaining a previability abortion but in fact provided an outright ban, clearly contravening Casey. Id.
A legislative purpose to accomplish a constitutionally forbidden result may be found
when that purpose was “‘the predominant factor motivating the legislature’s decision.’ Such a
forbidden purpose may be gleaned both from the structure of the legislation and from
examination of the process that led to its enactment.” Jane L., 102 F.3d at 1116 (citing
Armstrong v. Mazurek, 94 F.3d 566, 567 (9th Cir. 1996) [additional citations omitted]).
The Mazurek case cited above eventually reached the Supreme Court. In that case, the
Montana legislature passed a law requiring that all abortions be performed by a physician.
Although a district court denied a preliminary injunction after finding a lack of evidence that the
law had the effect of creating a substantial obstacle to women seeking abortions, a court of
appeals reversed based on its finding that the purpose of the law may have been to create such an
obstacle. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Some evidence suggested the

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law was intended to restrict the activities of one particular physician’s assistant who performed
abortions and who was targeted by anti-abortion activists. See Id. at 979-80 (Stevens, J.
dissenting). Also, two other provisions in the same Act were re-enactments of provisions
previously held unconstitutional. Id. Finally, the bill itself was drafted by an anti-abortion
group. Id. at 973. Despite this background, the Supreme Court vacated the court of appeals’
ruling, stating as follows:
The Court of Appeals never contested this District Court
conclusion that there was “insufficient evidence” in the record that
the requirement posed a “ ‘substantial obstacle to a woman seeking
an abortion.’ ” Instead, it held that the physician-only requirement
was arguably invalid because its purpose, according to the Court of
Appeals, may have been to create a substantial obstacle to women
seeking abortions. 94 F.3d, at 567. But even assuming the
correctness of the Court of Appeals' implicit premise-that a
legislative purpose to interfere with the constitutionally protected
right to abortion without the effect of interfering with that right
(here it is uncontested that there was insufficient evidence of a
“substantial obstacle” to abortion) could render the Montana law
invalid-there is no basis for finding a vitiating legislative purpose
here. We do not assume unconstitutional legislative intent even
when statutes produce harmful results, see, e.g., Washington v.
Davis, 426 U.S. 229, 246, 96 S.Ct. 2040, 2050-2051, 48 L.Ed.2d
597 (1976); much less do we assume it when the results are
harmless. One searches the Court of Appeals' opinion in vain for
any mention of any evidence suggesting an unlawful motive on the
part of the Montana Legislature. If the motion at issue here were a
defendant's motion for summary judgment, and if the plaintiff's
only basis for proceeding with the suit were a claim of improper
legislative purpose, one would demand some evidence of that
improper purpose in order to avoid a nonsuit. And what is at issue
here is not even a defendant's motion for summary judgment, but a
plaintiff's motion for preliminary injunctive relief, as to which the
requirement for substantial proof is much higher. “It frequently is
observed that a preliminary injunction is an extraordinary and
drastic remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.”
Id. at 972 [citation omitted]. The Court noted that the physician-only requirement was itself
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consistent with Supreme Court precedent. Id. at 973. It said the fact that an anti-abortion group
drafted the law “says nothing about the legislature’s purpose in passing it.” Id. Mazurek also
clarified that such a law is not invalid for an improper purpose unless the record supports a
conclusion that the legislature’s “predominant motive” was to create a substantial obstacle to
abortion. Id. at 974, n.2.
Under the foregoing standard, plaintiff has failed to cite evidence to show that the Kansas
legislature’s predominant motive in enacting this particular law was to create a substantial
obstacle to abortion. Plaintiff argues the law has only a single purpose – to create such an
obstacle. But defendant has cited various interests allegedly furthered by the law. Among other
things, it contends the law furthers the state interest of lowering insurance costs, and that it is a
“freedom of conscience” provision that prevents Kansas citizens who object to abortion from
having their insurance premiums used to fund certain abortion services. It asserts that what the
“law really does is eliminate[] the subsidy that other participants in health insurance plans have
been paying for the costs of abortions for those participants who actually choose to have an
abortion.” Doc. 14 at 25. Defendant contends the nature of insurance policies and the pooling of
premiums and risk pools makes insurance comparable to the “public fund” cases, which say that
a State can promote childbirth and elect to not to fund abortion, or to laws concerning
conscientious objection to the use of mandatory union dues. Doc. 14 at 15-18. Although
defendant cites no authority upholding such a view, neither has this particular argument been
directly tested or foreclosed by the Supreme Court.5 In support of its argument, defendant also

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Plaintiff accurately points out that the instant challenge involves insurance policies
funded entirely with private rather than public funds. Several courts have addressed similar
laws. In National Educ. Ass’n. Of Rhode Island v. Garrahy, 779 F.2d 790 (1st Cir. 1986), the
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points out that the new federal health care law – the Patient Protection and Affordable Health
Care Act – has a similar arrangement. It establishes ground rules for qualified health plans to be
offered on State “exchanges,” and specifically provides that “a State may elect to prohibit
abortion coverage in qualified health plans offered through an Exchange....” 42 U.S.C. §
18023(a). The federal law has a mechanism for segregating costs and premiums for abortion
services related to such policies. See id. The federal law was accompanied by a Presidential
Executive Order, which states that the federal health care law “maintains current Hyde
Amendment restrictions governing abortion policy and extends those restrictions to the newly
created health insurance exchanges,” since policies on such exchanges may be paid for in part by
tax credits or government subsidies. The Kansas law pertaining to calculation of a separate
premium for an abortion rider appears to draw heavily from the federal law. The same law
challenged in the instant motion also has a provision prohibiting policies on Kansas health
insurance exchanges from providing coverage for elective abortions. Of course, none of this

First Circuit agreed with a district court ruling that such a law violated the right recognized in
Roe v. Wade. The district court, relying upon detailed evidence concerning the effect of the law
on the cost and availability of health insurance, and applying strict scrutiny analysis, found the
law would have a significant impact on many women’s right to choose abortion. See National
Educ. Ass’n. Of Rhode Island v. Garrahy, 598 F.Supp. 1374, 1378 (D. R.I. 1984). The judge
further found that the law’s stated objective of discouraging abortion and encouraging childbirth
was impermissible. Id. at 1385. See also American College of Obstetricians and Gynecologists
v. Thornburgh, 737 F.2d 283 (3rd Cir. 1984) (insurance restriction adds a barrier to obtaining
abortion; state’s asserted interest in lowering insurance costs impinges on a fundamental right
and cannot withstand strict scrutiny). The Eighth Circuit found summary judgment should not
have been granted to a plaintiff who “introduced no evidence that insurance policies covering
elective abortions are unavailable or prohibitively expensive” as a result of the law, and where
the state claimed the law rationally furthered a legitimate governmental purpose of “reducing the
cost of insurance and in protecting the interests of citizens who object to subsidizing abortions
through payment of their insurance premiums.” Coe v. Melahn, 958 F.2d 223 (8th Cir. 1992).
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insulates the law from Casey’s rule that the state cannot create a substantial obstacle to a
woman’s right to obtain a pre-viability abortion. But it does weigh against plaintiff’s contention
that the sole purpose of this Act was to impermissibly create a substantial obstacle to abortion.
Whether one agrees or disagrees with this asserted cost and/or “freedom of conscience”
rationale, there is nothing in the record to show that this was not the legislature’s purpose in
adopting the law. Moreover, the claimed interests are rational ones that do not necessarily
manifest a legislative purpose to create a substantial obstacle to obtaining an abortion. The
Kansas law governs the issuance and structure of insurance policies, a matter on which the states
traditionally have broad authority, and on its face the Act does nothing to directly prohibit or
restrict a woman from obtaining an abortion. Whether the practical effect of the law is to
actually create a substantial obstacle is another question, but plaintiff has not attempted in this
motion to put on evidence to establish such an effect, and the court expresses no opinion here on
that question. Insofar as the purpose of the law is concerned, the likely effect of it is not so selfevident that it must be said to manifest a legislative intent to obstruct the right to abortion.6
Where a law can be viewed as having a rational purpose other than simply obstructing
the right to abortion, the court cannot presume that an invalid purpose actually motivated the
legislature to adopt the law, let alone that the invalid purpose was the legislature’s predominant

6

The briefs disclose that four or five other states have similar restrictions on private
insurance policies, with several of those laws having been in effect for over 25 years. There is
no evidence in the record concerning the effect of those laws on a woman’s right to choose an
abortion.
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motive.7 See Karlin v. Foust, 188 F.3d 446, 493 (7th Cir. 1999) (“While a plaintiff can challenge
an abortion regulation on the ground that the regulation was enacted with an impermissible
purpose, the joint opinion in Casey and the Court's later decision in Mazurek ... suggest that such
a challenge will rarely be successful, absent some sort of explicit indication from the state that it
was acting in furtherance of an improper purpose.”). Cf. Miller v. Johnson, 515 U.S. 900, 916
(1995) (‘[D]iscriminatory purpose’ ... implies more than intent as volition or intent as awareness
of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course
of action at least in part ‘because of,’ ... its adverse effects”) [citation omitted]. That is
particularly true where the record before the court lacks any evidentiary showing that the law
actually has the effect of creating a substantial obstacle to obtaining an abortion. Cf. Mazurek.
And like Mazurek, the mere fact that the legislature passed other provisions of dubious
constitutional validity does not speak to the legislative purpose in adopting this provision. The
court concludes plaintiff has failed to show that it is likely to prevail on its claim that Section
8(a) of the Act was predominantly motivated by an unconstitutional legislative intent to create a
substantial obstacle to a woman’s right to choose abortion.
As for plaintiff’s claim that the Kansas law also violates its members’ right to equal
protection of the laws, the court agrees with defendant that such a claim is likely subject to

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The court rejects plaintiff’s suggestion that any State interest other than protecting the
potentiality of human life or maternal health necessarily renders a state law concerning abortion
invalid. Casey observed that a statue which, “while furthering the interest in potential life or
some other valid state interest, has the effect of placing a substantial obstacle in the path of a
woman’s choice” cannot be considered a permissible means of serving its legitimate ends.
Casey, 505 U.S. at 877. Casey does not limit the state interests that could underlie all state
regulations touching on abortion; it makes clear that no matter what state interest is involved, it
is impermissible for the state to further its interest by creating a substantial obstacle to
previability abortions.
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review under a rational basis test, and that plaintiff has failed to show a likelihood of prevailing
on that claim as well. Cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993)
(opposition to abortion is not class or gender-based discrimination). The law appears to
rationally further a state interest in allowing the State’s citizens to avoid paying insurance
premiums for services to which they have a moral objection. Lest there be any confusion from
this finding, the court reiterates that such state interests cannot justify the law if the actual effect
of it is to create a substantial obstacle to a woman’s right to choose abortion. But the plaintiff
has not made that claim in this motion, nor has it provided evidence to support such a finding,
and the requested injunction must therefore be denied.
C. Request for Leave to File Additional Evidence.
Plaintiff argues it should be allowed to “cure” the evidentiary defect identified by the
Magistrate Judge by filing a declaration from its member who will lose insurance coverage on
October 1, 2011. But as the Magistrate noted, the briefing and hearing schedule was set up to
accommodate the plaintiff, and plaintiff cites no reason why it could not have presented such
evidence in a timely fashion that would have allowed the defendant an opportunity to address it
at the hearing. Moreover, Plaintiff’s motion for preliminary injunction was based upon the
allegedly improper purpose of the legislature in passing the Act. Doc. 4 at 5-7, & n.1
(“[P]laintiff’s claim focuses on the Act’s unlawful purpose, not its effect, and thus Coe has no
bearing on Plaintiff’s claims.”). Plaintiff has not explained how supplementing its evidence with
a declaration from one of its member would relate to that claim. Accordingly, the court will
deny plaintiff’s request to supplement its evidence. The court notes, however, that the denial of
the instant motion is without prejudice. Nothing in this court’s ruling precludes plaintiff from

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filing a subsequent motion for preliminary injunction if it can meet all of the prerequisites for
such a motion, nor does it constitute a final ruling on the merits of plaintiff’s claims.
D. Discovery & Scheduling.
Plaintiff requests that if the court denies the instant motion, it set an expedited schedule
for discovery and summary judgment, so that the Act’s constitutionality and its effect on the
rights of plaintiff’s members may be promptly determined. That request is well-taken; the court
will direct the Magistrate to set an expedited schedule for discovery and dispositive motions.
V. Conclusion.
The court adopts the Recommendation of the Magistrate Judge, albeit for different
reasons than relied upon by the Magistrate. Accordingly, Plaintiff’s Motion for Preliminary
Injunction (Doc. 3) is DENIED. Plaintiff’s Objection to the Report and Recommendation is
denied as moot.
The court directs the Magistrate Judge to set an expedited schedule for discovery and the
filing of dispositive motions.
IT IS SO ORDERED this 29th

Day of September 29, 2011, at Wichita, Ks.

Wesley E. Brown
U.S. Senior District Judge

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