NEW YORK – New York Attorney General Letitia James today led a multistate coalition of 23 attorneys general in supporting legal action against the Food and Drug Administration (FDA) and the U.S. Department of Health and Human Services (HHS) for attempting to increase the risk that women nationwide will contract the coronavirus disease 2019 (COVID-19) as they seek abortions in their state. In an amicus brief filed in support of the plaintiffs in FDA et al. v. American College of Obstetricians and Gynecologists et al. in the U.S. Supreme Court, Attorney General James leads the coalition in encouraging 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 an 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 argued in the past — and continues to argue in today’s amicus brief — 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.
“Despite multiple courts ruling, again and again, that women should be able to maintain access to reproductive health care even during the coronavirus pandemic, the Trump Administration is still trying to strip women of their rights and control their bodies,” said Attorney General James. “Telehealth can help provide us with the health care we need in so many instances, including helping women maintain their constitutional right to access an abortion without risking a COVID-19 infection. With so many parts of the country still seeing spikes in coronavirus infections, this technology can keep women safe and healthy while protecting their reproductive rights. We won’t allow the Trump Administration to take us backwards, which is why we are fighting this in the Supreme Court.”
Since the widespread onset of COVID-19 across the United States in March, more than 6.3 million Americans have contracted the disease, resulting in more than 189,000 deaths, including more than 440,000 infections in New York and more than 25,000 deaths in the state. In response, legislators, officials, and agencies across the nation have been instituting various emergency measures to slow the spread of the virus by limiting face-to-face contact and reducing in-person social gatherings, such as by closing schools and requiring all nonessential employees to work from home, as limiting interpersonal contact is central to the ability of states to control the spread of the virus.
But the FDA’s requirements — temporarily halted by a lower court, and the subject of today’s amicus brief — force patients to appear in person in a clinical setting to receive mifepristone and heighten the risk of contracting and transmitting COVID-19 for everyone involved, including patients and health care providers. Before the pandemic, patients seeking medication abortions represented nearly 40 percent of all abortion patients in the U.S. in 2017. Forcing these women to travel at a time when many states are urging people to limit in-person contacts to curb the spread of COVID-19 is shortsighted — not only putting women across the country and their close contacts in harm’s way, but also harming the public health more generally. Further, the FDA requirements undermine states’ ability to effectively manage the pandemic.
In today’s brief, Attorney General James and the coalition specifically argue that reinstating and enforcing the FDA requirements during the current public health crisis will harm patient safety and the public interest in at least two ways: 1) by conditioning access to essential reproductive health care on an increased risk of virus infection and transmission and 2) by undermining the states’ ongoing efforts to manage the crisis through measures limiting unnecessary in-person contacts, such as stay-at-home orders, stay-safe orders, and telehealth. The states have already effectively utilized such measures to control the spread of the virus, and these measures remain necessary to safely reopen communities, allow for essential in-person activities, and maintain health care capacity during the upcoming flu season.
Additionally, the coalition argues that many women will need to travel long distances in order to reach a clinic that dispenses mifepristone, especially if they reside in rural and medically underserved locations, therefore increasing the likelihood of coming into contact with an individual who has contracted COVID-19.
But by using measures like telehealth to reduce unnecessary person-to-person contacts, states can decrease their infection rate, as necessary, to safely commence reopening even as the pandemic continues. In fact, the coalition argues that telehealth should be used wherever possible — even as phased reopenings of the states occur — because it maximizes the number of capable health care workers providing necessary medical treatment, while protecting health care staff and patients. And in the context of reproductive care, the counseling required prior to a medication abortion is routinely and safely provided through telehealth in order to reduce in-clinic interactions.
Another division of HHS and one of the FDA’s sister agencies — the Centers for Disease Control and Prevention — has advocated for telehealth, advising health care practitioners to use telemedicine “whenever possible” as “the best way to protect patients and staff from COVID-19.”
The coalition goes on to highlight that their states have already taken numerous steps to expand the use of telehealth during the current public health crisis, including the suspension of existing statutes and regulations that limit the use of telehealth in order to allow the delivery of regulated services through telehealth to additional patient populations, including especially vulnerable ones. These suspension orders expand the types of practitioners who can use telehealth, the settings in which it can be provided, the modalities that can be used to deliver telehealth services, and the circumstances under which telehealth can be initiated. Further, many states have also suspended rules that prohibit telehealth in the absence of an existing patient-provider relationship so that patients can receive care from new providers.
The American College of Obstetricians and Gynecologists — a plaintiff in this case — has championed telehealth as an effective substitute for in-clinic dispensing of mifepristone that can improve patient safety and outcomes during the COVID-19 public health crisis. And even before the pandemic, in 2018, the American Medical Association passed a resolution urging the FDA to lift the requirement.
In March, Attorney General James, as part of a coalition of 21 attorneys general from around the nation, called on the Trump Administration to waive or utilize its discretion not to enforce the mifepristone requirement because it impedes women’s access to a medication abortion. The coalition stressed the states’ need to ensure that women across the country have access to critical health care, including access to abortion services, without forcing them to travel and risk the spread of COVID-19.
In 2000, the prescription drug mifepristone — sometimes referred to as RU-486 — became the first FDA-approved medication to induce medication abortions, and, today, still remains the only drug approved in the United States for pregnancy termination. Women take mifepristone along with another drug to bring about an early-term abortion. Since its approval, three million women in the United States have used the medication. According to the FDA, this medication “has been increasingly used as its efficacy and safety have become well-established by both research and experience.” Women alternatively may undergo a procedural abortion that is performed by aspiration or by dilation and evacuation.
Today’s amicus brief follows up on two previous amicus briefs filed in this case by a coalition of states led by Attorney General James — in the U.S. District Court for the District for Maryland and the U.S. Court of Appeals for the Fourth Circuit — asking the district court to issue a preliminary injunction of the FDA requirements for mifepristone, and asking the circuit court to deny the Trump Administration’s efforts to stay the preliminary injunction. The courts have continued to rule in favor of the plaintiffs and the coalitions led by Attorney General James.
Today’s brief is also just the latest in a long list of measures Attorney General James has taken to protect women’s reproductive freedom since taking office. In July, Attorney General James scored a major nationwide victory 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 (ACA). In January, Attorney General James co-led a coalition of attorneys general in filing a lawsuit against the U.S. Department of Health and Human Services (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 victory. 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 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 work to stop the state from banning almost all abortions in Oklahoma, using 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 the coronavirus 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 are not 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 secured a victory for women in Rochester seeking to have an abortion 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.
Also, in December 2019, Attorney General James led a multistate amicus brief in support of a challenge by petitioners in the case June Medical Services v. Gee, challenging a Louisiana law that required abortion providers to maintain admitting privileges at a local hospital. This past June, Attorney General James helped score a major victory at the U.S. Supreme Court that overturned the Louisiana law and that will protect the ability of women across the nation to maintain access to safe, legal abortions, as is their constitutional right.
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 challenge 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.
In March 2019, Attorney General James co-led a coalition of 21 states in a lawsuit challenging the Trump Administration’s regulations that threaten essential services provided under federal Title X funding. 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 — an expensive and potentially impossible requirement. In May 2020, Attorney General James and a coalition filed 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.
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 Attorney General James in filing this amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
This matter was handled by Assistant Solicitors General Laura Etlinger and Blair Greenwald, Deputy Solicitor General Anisha S. Dasgupta, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions.