Attorney General James Continues Fight to Safeguard Women’s Access to Reproductive Health Care

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Coalition of 20 Attorneys General Argue Against Tennessee’s Abortion Bans

NEW YORK:____  NY Attorney General Letitia James, as part of a coalition of 20 attorneys general, today continued her leadership in the national fight to ensure women’s reproductive health care is not stifled or infringed upon in any way. In an amicus brief — filed in Memphis Center for Reproductive Health, et al. v. Herbert Slatery, et al. — Attorney General James and the coalition contest the constitutionality of two abortion bans enacted in the state of Tennessee, and urge the court to affirm a lower court injunction that prevents enforcement of the state law that would create barriers to safe, legal abortions and that would disproportionately impact Black, minority, and low-income women. The attorneys general argue that the laws place unconstitutional restrictions on a woman’s right to choose and that they do not promote women’s health care overall.

“Time and again, Tennessee has used its power to try and turn back the clocks and unconstitutionally restrict women’s reproductive rights,” said Attorney General James. “This is just another power grab by politicians willing to sacrifice a woman’s right to access an abortion in the process, but we are standing up against these bans because Tennessee’s unlawful efforts to deny women their constitutionally-guaranteed rights will not go unchallenged. This is about protecting women’s bodies, their freedoms, and their choices.”

This past summer, Tennessee enacted two different prohibitions on abortions: a so-called “reason ban” and so-called “cascading bans.” The reason ban prohibits abortion at any stage of a pregnancy if a health care provider “knows” that the patient’s decision to terminate the pregnancy is based on a Down syndrome diagnosis, or the sex or race of the fetus. The cascading bans prohibit abortion as soon as a fetal heartbeat is detected, which can be as early as six weeks after gestation. If this six-week ban is invalidated by the courts, the law includes a cascading series of bans that seek to impose the earliest ban that can withstand judicial review. Both of these restrictions would ban abortions before the stage of viability, contrary to the rights recognized by the U.S. Supreme Court. Additionally, because the cascading bans can take effect before some women even know they are pregnant, they amount to an absolute ban on abortion, in violation of clear Supreme Court law.

In the brief — filed in the U.S. Court of Appeals for the Sixth Circuit — Attorney General James and the coalition highlight past cases in which the Supreme Court has repeatedly ruled that a state may not prohibit any woman from making the decision to terminate her pregnancy before viability. Additionally, the attorneys general emphasize that women’s health outcomes are advanced by meaningful access to the full range of comprehensive reproductive health care services, including abortion. The attorneys general also cite ample scientific evidence that has established the detrimental impact highly-restrictive abortion laws have on women’s health outcomes, as well as how states’ interests are served by promoting women’s health and ensuring access to abortion services.

Further, the coalition points to data that shows that laws — like the one at issue in Tennessee — have a disproportionate impact on Black, minority, and low-income women. Having access to safe, legal abortions leads to better health outcomes, particularly for Black and minority women who are disproportionately represented in Tennessee’s increasing maternal mortality numbers. Low-income women are also disproportionately affected by abortion bans because in states like Tennessee — which have not expanded access to Medicaid — uninsured women are eligible for coverage only while pregnant, and coverage ends 60 days after they give birth. These inequities are exacerbated by the small number of abortion providers in Tennessee and the long distances many women must travel to access abortion services. Attorney General James and the coalition argue states can promote women’s health without curtailing the right to choose. For instance, many states, including New York, provide residents with access to family planning and contraception programs.

Despite Tennessee’s claims that its reason ban law is intended to limit discrimination against those with disabilities, such as Down syndrome, the coalition maintains that combating discrimination should not come at the expense of women’s reproductive rights. States can promote medically-accurate, unbiased information to help women make informed reproductive choices. Further, states can support those with developmental disabilities and their families by providing civil rights protections and delivering social and medical services.

Today’s action is just the latest in a long list of measures Attorney General James has taken to protect women’s reproductive freedom since taking office. In October, Attorney General James co-led a coalition of 22 attorneys general in filing a petition, asking the U.S. Supreme Court to review a decision from the U.S. Court of Appeals for the Ninth Circuit that upheld the Trump Administration’s Title X family planning rule. The rule — also known as the “gag rule” — places an unlawful and unethical restriction on health care providers’ ability to fully inform patients of the reproductive health services available to them by disallowing referrals for abortions and restricting counseling related to abortions. Another provision would require those who perform abortions to physically segregate their services — a requirement that is so expensive and so difficult to accomplish that it is driving many providers out of the program and could possibly drive them out of business. The petition followed a lawsuit, filed in March 2019, where Attorney General James co-led the coalition in challenging the Trump Administration regulations that threaten essential services provided under federal Title X funding. Separately, but analogously, in May 2020, Attorney General James led a coalition of 19 attorneys general in filing an amicus brief  in the U.S. Court of Appeals for the Fourth Circuit — in a similar lawsuit brought by the city of Baltimore against the Trump Administration’s Title X rule.

 

In September, Attorney General James led a coalition of attorneys general in filing an amicus brief in FDA et al. v. American College of Obstetricians and Gynecologists et al. in the U.S. Supreme Court, where she encouraged the court to reject a request from the Trump Administration to halt a preliminary injunction issued by a district court in July and thereby reinstate a U.S. Food and Drug Administration (FDA) requirement that forces women to appear in person in a clinical setting to receive a drug known as mifepristone for an early abortion. The coalition has twice in the past successfully argued — in the U.S. District Court for the District for Maryland in June and the U.S. Court of Appeals for the Fourth Circuit in August — that the drug should be readily accessible via telehealth and mail delivery, so as to not potentially expose women to COVID-19 by requiring unnecessary travel. These three amicus briefs followed up on a letter Attorney General James sent, in late March, to both the U.S. Department of Health and Human Services (HHS) and the FDA requesting that the Trump Administration waive or utilize its discretion not to enforce a specific designation, which dictates and subsequently impedes women’s access to mifepristone. Attorney General James called on the Trump Administration to ensure that women across the country can more easily access this critical health care service while the pandemic leaves many women unable to seek in-person care.

 

In July, Attorney General James scored a major nationwide win for women’s reproductive freedoms after a federal court threw out a Trump Administration rule that would have made it more difficult for women in New York and across the nation to access abortion services under the Affordable Care Act. In January, Attorney General James co-led a coalition of attorneys general in filing a lawsuit against HHS for putting forward the rule, arguing that it jeopardized the health coverage of all consumers confused by its billing practice. Attorney General James followed up on the lawsuit by filing a motion for summary judgment in late March that led to this win. In addition to the litigating this matter, Attorney General James also opposed this rule by sending a letter to HHS, in April, asking that the rule be withdrawn or significantly delayed as the nation dealt with the COVID-19 pandemic, and by sending another letter to HHS, in July, after an interim rule did not delay the rule long enough.

 

In June, Attorney General James helped score another major victory at the U.S. Supreme Court — in the case June Medical Services v. Gee — by helping to overturn a Louisiana law that would have required abortion providers to maintain admitting privileges at a local hospital. In December 2019, Attorney General James led a multistate amicus brief in support of a challenge by the petitioners in the case in an effort to protect the ability of women across the nation to maintain access to safe, legal abortions, as is their constitutional right.

 

In April, Attorney General James led a coalition of attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Sixth Circuit — supporting the plaintiffs in Adams & Boyle, P.C., v. Slatery — as they fought to ensure women across the state of Tennessee could continue to access an abortion after executive orders in the state banned procedural abortions, using COVID-19 as an excuse.

 

Also, in April, Attorney General James led a coalition of attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit — supporting the plaintiffs in Robinson v. Marshall — as they fought to preserve access to reproductive health care for women across Alabama, after an executive order banned nearly all abortions in the state, using the coronavirus as an excuse for the ban.

 

Earlier, in April, Attorney General James led a coalition of attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Eighth Circuit — supporting the plaintiffs in Little Rock Family Planning Services v. In re Leslie Rutledge — as they fought to protect women’s access to procedural abortions in the state of Arkansas, after the state Department of Health used an emergency health order to ban all procedural abortions in Arkansas, using COVID-19 as the reasoning for the ban.

 

Additionally, in April, Attorney General James demanded that three health insurance companies — Aetna, MetroPlus Health, and Oscar Health — immediately provide coverage for 12-month supplies of contraceptives after the Office of the Attorney General found that these companies were refusing to comply with New York state law requiring all health insurance companies to provide this 12-month supply — especially troublesome in the midst of the COVID-19 pandemic, as many New Yorkers lose their jobs and health insurance coverage, and try to limit unnecessary trips to pharmacies. Attorney General James also sent letters to other insurers in New York, reminding them about their obligation to provide 12 months of contraceptive coverage to women under New York’s Comprehensive Contraception Coverage Act.

 

Even earlier, in April, Attorney General James led a multistate coalition in filing an amicus brief — in the U.S. Court of Appeals for the Tenth Circuit, supporting the plaintiffs in Southwind Women’s Center LLC v. Stitt — as they fought to preserve access to reproductive health care for women across the state of Oklahoma and worked to stop the state from banning almost all abortions in Oklahoma when it used the COVID-19 public health crisis as an excuse.

 

Prior to that, in April, Attorney General James and a coalition of attorneys general filed an amicus brief in the U.S. Supreme Court — in Little Sisters of the Poor v. Pennsylvania — supporting a lawsuit defending the contraceptive coverage and counseling requirement previously mandated by rules under the Affordable Care Act that have now been limited by broad religious and conscience exemptions created by the Trump Administration. The old contraceptive rules benefited more than 62 million women across the country.

 

At the beginning of April, Attorney General James led a multistate coalition of attorneys general from around the nation in filing an amicus brief supporting the plaintiffs in Planned Parenthood v. Abbott, after the state of Texas issued a directive banning nearly all abortion services in the state, using COVID-19 as an excuse.

 

In March — at the onset of the COVID-19 pandemic — Attorney General James called on the federal government and states across the country to ensure women’s access to safe, legal abortions would not be jeopardized or curtailed as a result of the spread of COVID-19.

 

In January, Attorney General James filed an amicus brief, in Reproductive Health Services v. Planned Parenthood of St. Louis, challenging the constitutionality of several, recently-enacted abortion bans in the state of Missouri.

 

Also, in January, Attorney General James successfully argued that women in Rochester seeking to have an abortion should be able to do so without being harassed, threatened, or blocked before entering a clinic when a district court judge dismissed a lawsuit by anti-abortion activists seeking to bypass a 15-foot “buffer zone” outside a local Planned Parenthood facility.

 

Earlier, in January, Attorney General James filed a multistate amicus brief in support of a lawsuit that seeks to protect a woman’s right to safe and legal abortion care without the burdensome restrictions imposed by Arkansas laws. The brief — filed in support of the plaintiffs in Little Rock Family Planning Services v. Leslie Rutledge, now before the U.S. Court of Appeals for the Eighth Circuit — supports the last surgical abortion clinic in Arkansas as it challenges four state laws that would restrict the ability for women in Arkansas to access abortions by banning abortions after 18 weeks and otherwise restricting women’s access to reproductive care.

 

In December 2019, Attorney General James filed an amicus brief defending the right to maintain full and equal access to birth control guaranteed under the Affordable Care Act for tens of thousands of women nationwide.

 

In November 2019, Attorney General James secured another major victory for reproductive freedom after a federal court invalidated a Trump Administration rule that would have allowed businesses and individuals to refuse to provide necessary health care on the basis of businesses’ or employees’ “religious beliefs or moral convictions.” The victory came after, in May 2019, Attorney General James led a coalition of 23 states, cities, and municipalities in filing a lawsuit against HHS for putting forward the rule, arguing that it undermined the delivery of health care by giving health care institutions and individuals — including employers — the right to refuse care based on the providers’ own personal views and not the choices of a patient.

 

In October 2019, Attorney General James filed a multistate amicus brief in support of a lawsuit filed by the Jackson Women’s Health Organization against the state of Mississippi, challenging a law that would prohibit abortions after as early as six weeks of pregnancy.

 

In September 2019, Attorney General James led a multistate amicus brief in support of a lawsuit filed by Kentucky clinics and physicians, challenging a Kentucky law that would ban physicians from providing second-trimester abortion services, using the most common and safest procedure available for women after 15 weeks of pregnancy. In June 2020, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s permanent injunction against the law.

 

In August 2019, Attorney General James filed a multistate amicus brief in support of a lawsuit filed by the Whole Woman’s Health Alliance against the state of Indiana after the state denied the clinic’s application for a license to open an abortion clinic that would provide medical abortions in South Bend.

Finally, Attorney General James is litigating the appeal in People ex rel. James v. Griepp to ensure that women who enter the Choices Women’s Medical Center in Jamaica, Queens are not harassed, obstructed, or threatened by protestors.

Joining Attorneys General James in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

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