Am. Civil Liberties Union of Kan. & W. Miss. v. Praeger

• Decision Date: 07 January 2013
• Docket Number: Case No. 11–2462–JAR.
• Citation: 917 F.Supp.2d 1179
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KANSAS AND WESTERN MISSOURI, Plaintiff, v. Sandy PRAEGER, Kansas Insurance Commissioner, in her official capacity, Defendant.
• Court: U.S. District Court — District of Kansas

917 F.Supp.2d 1179

AMERICAN CIVIL LIBERTIES UNION OF KANSAS AND WESTERN MISSOURI, Plaintiff,

v.Sandy PRAEGER, Kansas Insurance Commissioner, in her official capacity, Defendant.

Case No. 11–2462–JAR.

United States District Court, D. Kansas.

Jan. 7, 2013.

Andrew D. Beck, Brigitte Amiri, Jennifer Dalven, American Civil Liberties Union Foundation, New York, NY, Stephen D. Bonney, ACLU of Kansas and Western Missouri, Kansas City, MO, for Plaintiff.

Jeffrey A. Chanay, Office of Attorney General, Topeka, KS, Todd N. Thompson, Robert W. Ramsdell, Sarah E. Warner, Shon D. Qualseth, Stephen R. McAllister, Thompson Ramsdell & Qualseth, P.A., Lawrence, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff American Civil Liberties Union of Kansas and Western Missouri brought this action pursuant to 42 U.S.C. § 1983 for redress of alleged violations of its members' constitutional rights by Defendant Sally Praeger's enforcement of Kansas House Bill 2075, codified as Kan. Stat. Ann. § 40–2,190 (“the Act”). The Act prohibits insurance companies from offering comprehensive health insurance plans that cover abortions, unless the abortion is required to prevent the death of the mother.

On June 15, 2012, Plaintiff sought summary judgment (Doc. 57), arguing that the challenged statute violates its members' rights to privacy and liberty, as protected by the U.S. Constitution's Due Process Clause. Specifically, Plaintiff argues that the Act's purpose is improper, that is, that the legislature's predominant purpose in passing the Act was simply to impede access to abortion care, not to serve legitimate state interests. Although Plaintiff initially argued that the challenged statute violates the Constitution's equal protection clause as well, Plaintiff did not pursue this claim on summary judgment. Plaintiff also has not sought summary judgment on its claim that the statute has the unconstitutional effect of imposing a substantial obstacle to obtaining abortions. On July 6, 2012, Defendant filed a cross motion for summary judgment (Doc. 65), arguing that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions and that the Act does not have an unconstitutional effect. Both motions are currently before the Court and are fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part Defendant's cross motion for summary judgment and denies Plaintiff's cross motion for summary judgment.

I. Legal Standards

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” ³ A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” ⁴ An issue of fact is “genuine” if “ ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” ⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.⁷

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” ⁸ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁹ Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” ¹⁰ To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” ¹¹Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹² The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹³ “Where, as here, the parties file cross motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” ¹⁴

Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” ¹⁵ In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” ¹⁶

II. Uncontroverted Facts

Many of the relevant facts in this case are not controverted for purposes of summary judgment.

In 2011, the Kansas Legislature passed a series of laws addressing abortion coverage, including section eight of the Act, which prohibits insurance companies from covering “elective” abortions in their comprehensive health insurance policies delivered, issued for delivery, amended, or renewed on or after July 1, 2011. The Act categorizes as elective any abortion for any reason other than to prevent the death of the mother upon whom the abortion is performed. Thus, the Act prohibits coverage for abortions that are necessary to prevent severe and permanent harm to the woman's health, such as organ failure, disability, and loss of fertility, to the extent that such effects would not lead to the death of the mother. There are no exceptions for the health of the mother, for a nonviable fetus, or for pregnancies that result from rape or incest. Insurance companies may only provide coverage for these and other elective abortions in a separate rider, which must fully cover the cost of elective abortions per enrollee as determined on an average actuarial basis.

Plaintiff ACLU of Kansas and Western Missouri has members who have lost insurance coverage because of the Act, including a member who has insurance through her employer but whose employer has not elected to purchase a rider, and whose insurance company does not offer riders to individual group members.

The cost for an abortion in a clinic ranges from $450 to $1675. If the abortion is performed in a hospital—which is often the case in situations where the woman's health is endangered or there are fetal problems—it can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an abortion while gathering the necessary funds to pay for an abortion. As the pregnancy advances, the cost of an abortion increases, and the procedure carries more risks.

Prior to the Act's passage, insurance companies comprising over 70% of the insurance market share in Kansas included abortion coverage in their comprehensive policies. But after the Act's passage, not all of these insurance companies decided to offer riders to all of their customers. For example, several do not offer riders to individuals on individual plans or to small groups. Further, even if a rider is offered for a group plan, the employer alone elects whether to purchase a rider, not the individual employee, and if an individual employee wanted to purchase an abortion rider after her employer elected not to, she would essentially have to forego the policy offered by her employer and buy an individual policy from an insurance company that offered riders to their individual policy holders. Thus, purchasing the rider will prove difficult for many women. Even if a rider is available, a woman (or employer)cannot wait until she knows she needs an abortion to buy it. Rather, she must buy the rider prior to becoming pregnant, because companies generally impose a long waiting period between the time the rider was purchased and when it can be used to cover an abortion. The insurance companies do not anticipate that many, if any, riders will be sold, perhaps due to the difficulty in obtaining the riders.

The Conference Committee Report Brief for House Bill 2075 states that “proponents” of the bill intended it to ensure that private citizens and businesses do not end up financing other person's abortions through premium payments and notes that seven states have passed similar legislation,¹⁷ although this is not a statement of legislative intent.¹⁸ At least some insurance companies pool the premiums for abortion riders together with other premiums and other sources of income to pay all claims, including abortion claims. Prior to the Act, if an employer wanted to exclude abortion coverage from its group policy, it could do so.

In calendar year 2011, 7851 reported abortions were performed in Kansas. In a similar time span (July 2010 to July 2011), the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions (not including treatment for ectopic pregnancy and miscarriage management, and not including claims in self-insured plans).

The Act has not resulted in significant changes in health insurance premiums at the individual level. Some insurance companies have not reduced premiums at all as a result of the Act or will not implement changes for several years, and insurance companies that have...