ACLU Wins a Round for Reproductive Justice and Advances Gender Discrimination Argument


The ACLU won a round this week in its court challenge to a Kansas law passed during the 2011 legislative session.  There are a few court challenges being waged in Kansas and the cost of these challenges continues to rise

This particular court challenge is over the law passed requiring women to purchase supplemental insurance riders in order to obtain abortion coverage on their personal insurance policies.  It rests on a “Stupak Amendment type” rationale, resting not within a taxpayer money pool, but instead meddling within the private insurance market. 

It is part of the ongoing anti-choice strategy that stands upon the notion that “dirty abortion money” just shouldn’t be intermingled with that of good, church-going, God-fearing, fetus-loving monies in any way, shape or form.  It gives one cause enough to believe that future legislative attempts may consist of requiring signage on the doors of local businesses stating their position on abortion to insure that one’s money doesn’t accidentally mingle or wind up in the hands of those they may ideologically oppose. 

Why, just imagine if the profit from Joe Schmoe’s morning donut and coffee were to end up in the hands of Planned Parenthood through a contribution made by that donut shop owner!  It isn’t that far of a Kansas legislative stretch to believe that the state might be so compelled to protect the moralistic integrity of Joe Schmoe’s morning long john or glazed cruller. 

This ongoing monetary mingling theme is becoming tiresome.  It is repeated within the state’s Title X defunding of Planned Parenthood of Kansas and Mid-Missouri.  The rationale is that taxpayer monies shouldn’t go to any health care provider that provides abortions (*gasp*), because the contraception money might mix with the abortion money.  That budget amendment from last year is repeated once again, in this year’s budget in spite of the ongoing court challenge

Preventing “monetary mingling” is also the stated intent behind the Kansas omni-bus, mega-abortion bill, which was christened with the title of “The No Taxpayer Funding for Abortion Act.” The 70-page bill has components that go far beyond the deemed offensive fiscal mish-mashing, but the title is catchy and the theme has proven powerful in rallying the anti-choice masses. 

The fiscal theme is also the stated intent behind the amendment that made its way onto Kansas’ 2012 budget.  The “no state employee should perform abortions” amendment is furtherance of this legislative monetary menagerie currently propelling the furtherance of abortion restrictions in Kansas, as state employees = taxpayer money.   

Part of the ACLU complaint is based in the belief that this law discriminates against Kansas women for being born with lady parts and their aquisition of “morally offensive” lady part procedures.  From the KC Star:

The ACLU contends that the law discriminates against women, since men can buy full comprehensive coverage for all their health needs but women need to buy a separate policy to add abortion coverage. The organization contends the purpose of the law is to inhibit women from getting abortions.

The obsessive compulsiveness and extreme invasiveness with which this monetary theme is being pushed into every nook and cranny of Kansas policy-making IS discriminatory.  The creation of special policy exceptions surrounding one female-centric, legal health care procedure is sexism and not even discretely so.  This is the same logic found with Oklahoma State Senator Constance Johnson’s vasectomy amendments.  

 More from the KC Star on the ACLU suit:

In her ruling, Robinson said the U.S. Supreme Court had already made clear that the undue burden standard is the appropriate means of reconciling the state’s interest in potential human life with the woman’s “constitutionally protected liberty” to have an abortion. However, she noted that the high court has not yet clarified how to consider an abortion-related challenge under an equal protection theory, one of the key claims in the ACLU’s lawsuit.

This particular aspect of the challenge could have ground breaking implications for establishing precedent for other discriminatory abortion polices under the 14th amendment.  We know the courts don’t have a history of equal application of the clause with regard to women’s rights, they continue to apply a higher level of judicial scrutiny for gender discrimination claims than claims of racial discrimination.  The initial decision by Judge Robinson to let the gender discrimination rationale of the lawsuit stand is encouraging news and a successful gain within this judicial battle for reproductive justice.    

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  • amelialong

    Congrats on this victory! 

    I think it’s super important to move abortion from a liberty and somewhat of a “negative right” towards a stronger theoretical + legal grounding.

    But – I don’t understand how this is expressly about women and thus an equal protection issue… can’t men be policy holders for their families and thus the ones seeking abortion coverage as well?  What am I not getting?

  • fdubdub

    If one considers abortion coverage as essential care for women then this law discriminates against women, and is thus an equal protection issue, because it denies them a sex-specific aspect of essential care.  As there are no other aspects of essential care denied by the state, this is a gender discrimination policy.

     

    I think this is why you’re seeing many state legislators respond, in states that seek to deny coverage for hormonal birth control, with a tit-for-tat measure like denying coverage for Viagra, another sex-specific medical need.  Does that make sense?

  • amelialong

    Got it – it’s the sex-specificity of the specific healthcare procedure, not of the purchasing of coverage.  Thanks!