Attorney General James Leads Coalition Fighting Alabama’s Unconstitutional Abortion Ban During COVID-19 Pandemic

Alabama Challenge Comes Following Arkansas, Oklahoma, and Texas Court Battles,
After States Issued Similar Bans Imposing Restrictions on Women’s Reproductive Freedoms

NEW YORK – New York Attorney General Letitia James today led a multistate coalition of 18 attorneys general in seeking to stop the State of Alabama from banning almost all abortions in the state, using the coronavirus disease 2019 (COVID-2019) public health crisis as an excuse. Continuing her leadership of the nation’s fight to protect women’s reproductive health, Attorney General James led the coalition 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 fight to preserve access to reproductive health care for the women across Alabama.

“Alabama’s efforts to ban abortion and use the coronavirus as an excuse to strip women of their constitutional rights will not go unchallenged,” said Attorney General James. “Like Arkansas, Oklahoma, and Texas before it, Alabama is simply seeking to use this public health crisis as a baseless pretext to push its anti-choice agenda. Our coalition will not hesitate to fight Alabama or any other state that seeks to undo nearly 50 years of precedent and impose its belief system on women’s bodies, women’s choices, and women’s freedoms.”

On March 17, 2020, Alabama’s State Health Officer issued an “Order of the State Health Officers Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19,” declaring that, starting on March 28, 2020 at 5:00 PM, “all dental, medical, or surgical procedures shall be postponed until further notice,” with exceptions only in place where necessary for emergencies, to avoid serious harm, or to continue ongoing and active treatment. That same day, Alabama Attorney General Steve Marshall confirmed that abortion services would not be exempt from the order. A few days later, on March 30, Attorney General Marshall issued a news release in which he clarified the order applied “without exception” and falsely made a number of inaccurate claims about the risks abortion clinics have in spreading COVID-19, including that these clinics are depleting valuable personal protective equipment (PPE) and that abortions typically require hospitalization. Attorney General Marshall went on to threaten the state’s abortion clinics by stating that he would enforce the order against “all violators.”

The next day, on March 30, a complaint was filed in the U.S. District Court for the Middle District of Alabama by Dr. Yashica Robinson and Alabama’s three independent abortion clinics: the Alabama Women’s Center, Reproductive Health Services, and West Alabama Women’s Center. The plaintiffs are being represented by Planned Parenthood Federation of America and the American Civil Liberties Union. 

That very same day, the district court issued a temporary restraining order blocking the state from enforcing its abortion ban. In a subsequent decision ordering a preliminary injunction, issued on April 12, the district court noted that, in Alabama, abortion becomes illegal after the 20th week of pregnancy. The court then stated, “this much is clear: for at least some women, a mandatory postponement” of abortions “would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies, or would impose a substantial burden on their ability to access an abortion.” The district court was abundantly clear, labeling the implications of the state’s attempt to postpone abortions “deeply troubling,” adding that, “[f]or some group of women, a mandatory postponement will make a lawful abortion literally impossible,” and “[f]or other women, a postponement would make securing a lawful abortion far more difficult, or even impossible, including because of major logistical hurdles.”

The district court went on to note, “based on the current record, the defendants’ efforts to combat COVID-19 do not outweigh the lasting harm imposed by the denial of an individual’s right to terminate her pregnancy, [or] by an undue burden or increase in risk on patients imposed by a delayed procedure.” The court concluded, “it is substantially likely that the medical restrictions, when interpreted to allow only those abortions necessary to protect the life and health of the [woman], are unconstitutional.”

Alabama has now appealed the preliminary injunction to the U.S. Court of Appeals for the Eleventh Circuit.

In the amicus brief filed today in the Eleventh Circuit, Attorney General James and the coalition lay out why they oppose the request to halt the lower court’s preliminary injunction, stressing that the ban on abortions in Alabama infringes on a woman’s constitutional rights. The coalition explains that the State of Alabama “fail[s] to recognize how the time-sensitive nature of abortion care distinguishes that care from services that can be postponed without patient harm during the current public health crisis” because “abortions cannot be deferred indefinitely or for long stretches without increasing risks for some women and denying access to others.”

The coalition notes, “As the district court found, the ban on abortions will irreparably injure any woman who reaches the legal limit for an abortion during the ban,” resulting in some women losing their constitutional right to a legal abortion.

Attorney General James and the coalition also explain that a prohibition on abortions, even for a short period of time, would harm some women by requiring more invasive and lengthier terminations.

Additionally, the coalition goes on to highlight that the abortion ban would force some women in Alabama to make “risky and expensive” travel plans to cross state lines in order to obtain an abortion. This is especially troublesome at a time when the entire U.S. population is being asked to limit travel to stop the spread of COVID-19. Further, the coalition notes that residents of New York and other amici states may currently be in Alabama without a way to return home, but they still have a right to time-sensitive reproductive care.

The attorneys general add that: “To further decrease transmission risks in the context of reproductive health care, clinics in amici States have increased the use of telehealth to conduct assessments, which reduces travel and in-person interactions. Some amici have modified state rules to allow increased use of telehealth during the pandemic,” but Alabama has not done so for abortion care.

Instead of limiting women’s access to abortions, Alabama should be joining Attorney General James’ call to increase access to telehealth medicine for abortion care and timely medication abortions so that women seeking abortions don’t have to fear going out and contracting COVID-19 during this public health crisis. Last month, Attorney General James sent a letter to both the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration requesting that the Trump Administration waive or utilize its discretion not to enforce its Risk Evaluation and Mitigation Strategy (REMS) designation, which dictates and subsequently impedes women’s access to the medication abortion prescription drug known as 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.

Finally, the coalition explains why a ban on abortion would not help the state preserve PPE, free up hospital beds, or prevent the spread of COVID-19 transmissions. As the district court found in the preliminary injunction it ordered, the exact opposite is actually true. The attorneys general note that abortions require “far less PPE and medical resources than continuing a pregnancy” does and medication abortions typically require none. Additionally, abortion procedures rarely require admission to a hospital. In fact, only one out of 10,000 “emergency room visits in the United States [each year] are abortion-related,” whereas “a significant number of hospitalizations resulting from complications and miscarriages” occur early on in a pregnancy. The coalition adds, “because some of these events are inevitably avoided by providing access to timely abortions, denying access to timely abortions will not appreciably conserve hospital resources and PPE in the coming weeks,” but could actually use more resources.

This brief follows three similar multistate amicus briefs Attorney General James led earlier this month in support of challenges to similar efforts to ban abortion during the COVID-19 public health crisis — one in support of a suit brought against state officials in the State of Texas, in Planned Parenthood v. Abbott, the second in support a suit brought against state officials in the State of Oklahoma, in Southwind Women’s Center LLC v. Stitt, and the third in support of a suit brought against state officials in the State of Arkansas, in Little Rock Family Planning Services v. In re Leslie Rutledge.

Medical professionals — including the American College of Obstetricians and Gynecologists — recently denounced the abortion bans being imposed by multiple states during the spread of COVID-19, highlighting that delays in providing time-sensitive reproductive health care could “profoundly impact a person’s life, health, and well-being.”

In addition to Alabama, Arkansas, Texas, and Oklahoma, the States of Iowa, Louisiana, Mississippi, Ohio, and Tennessee have all also attempted to ban many previability abortions during the COVID-19 pandemic, limiting their residents’ constitutional rights. Attorney General James will continue leading national fights opposing these types of abortion bans.

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. This past weekend, 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. This violation of New York’s Comprehensive Contraception Coverage Act is 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.

Earlier this month, Attorney General James and a coalition of attorneys general filed an amicus brief in the U.S. Supreme Court — in Donald Trump et al. v. Pennsylvania — supporting a lawsuit defending the contraceptive coverage and counseling requirement mandated as part of the Affordable Care Act, which has benefited more than 62 million women across the country. 

Even earlier in April, Attorney General James co-led a coalition of attorneys general in calling on the U.S. Department of Health and Human Services to delay implementation of a final rule that would make it more difficult for women in New York and across the nation to access abortion services under the Affordable Care Act, arguing that the rule jeopardizes health coverage of all consumers confused by its billing practice, as the nation battles COVID-19. The letter follows up on a lawsuit led by Attorney General James in January, and a motion for summary judgement, filed in late March, asking the federal courts to immediately rule on the lawsuit.

Also, last month — 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.

Even earlier in January, Attorney General James and a coalition of attorneys general 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 in 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. Yesterday, Attorney General James filed a multistate amicus brief in support of the providers’ opposition to Arkansas’ attempt to ban procedural abortions during the COVID-19 pandemic.

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 coalition in filing an amicus brief in support of a challenge by petitioners in the case June Medical Services v. Gee — now pending in the U.S. Supreme Court — challenging a Louisiana law that requires abortion providers to maintain admitting privileges at a local hospital.

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 coalition in filing an 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 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.

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 today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.

This matter was handled by Assistant Solicitors General Blair Greenwald and Laura Etlinger, Deputy Solicitor General Anisha Dasgupta, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions.