The Kansas abortion challenge to watch

(Manuel Balce Ceneta - AP)

A newly filed challenge to an abortion restriction in Kansas stands to have big, national impact. The case, filed Tuesday by the American Civil Liberties Union, asks a district court to block a new Kansas law that bars private insurers from covering abortion.

There are two key reasons this is worth watching: to start, the possible ripple effect. Up until last year, private abortion coverage was not a key target for abortion restrictions; about 87 percent of employer plans paid for the procedure with little notice or fanfare.

The health reform law’s heated debate over abortion coverage, however, changed all that. In 2010 alone, 13 states passed laws restricting insurers from covering the procedure.

The Kansas law is the first of those to be challenged. “This will absolutely be the first case of its kind,” says Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project. “It will likely set a precedent for what cases in other states could look like.”

Second, in pushing back against a new kind of restriction, abortion rights supporters will pioneer some untested arguments. The vast majority of abortion lawsuits today focus on how states limit access to the procedure. There, the current test for of constitutionality is whether a law places an “undue burden” on a woman seeking an abortion. Courts have used that standard to strike down laws that require waiting periods or “informed consent” counseling.

This case is a bit different. The Kansas law doesn’t restrict any particular procedure, but rather who can pay for it. The ACLU contends that the payer restriction is also an “undue burden.” The law, their court brief argues, “is directed exclusively at making it more difficult for women to obtain and pay for abortion care” and therefore is “no different than a law that would require women to pay a tax to obtain an abortion.” The case also brings in the Equal Protection Clause, which guarantees that “all similar persons similarly situated should be treated alike.” The argument there: “Kansas men are permitted to buy comprehensive insurance plans that cover all of their potential medical expenses, but Kansas women are prohibited from doing the same.”

All of these arguments are relatively untried when it comes to what abortion restrictions the courts do, and don’t, allow. And with so many similar laws just now coming online, their success will no doubt be closely watched.