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

Oklahoma Challenge Comes on Heels of Texas Fight and Other Actions
AG James Has Taken to Protect Women’s Reproductive Freedom

NEW YORK – New York Attorney General Letitia James today led a multistate coalition of 19 attorneys general in seeking to stop the State of Oklahoma 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 ensure women’s reproductive health care is not infringed upon, Attorney General James led the 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 fight to preserve access to reproductive health care for the women across Oklahoma.

“Oklahoma’s executive order is just the latest in a series of unconstitutional attacks taken by ideologues across the nation who are using the coronavirus as an excuse to trample on women’s reproductive rights,” said Attorney General James. “A global pandemic should never be used as a backdoor channel for any state to chip away at the protections guaranteed in the U.S. Constitution, yet we are still being forced to fight to defend women’s bodies, choices, and freedoms nearly 50 years after Roe v. Wade. Our coalition will not hesitate to challenge Oklahoma, Texas, or any other state using this crisis as an unlawful justification to attack women’s reproductive rights.”

On March 24, Oklahoma Governor Kevin Stitt issued Executive Order 2020-07 (4th amended), postponing all elective surgeries and minor medical procedures in the State of Oklahoma. Three days later, Governor Stitt’s office confirmed that “any type of abortion services…which are not a medical emergency…or otherwise necessary to prevent serious health risks” to the woman would be included in the executive order. The governor’s office even went so far as to compare an abortion to a “routine” dental procedure. This order came just days after the Oklahoma governor posted on social media about eating out with his family in a “packed” Oklahoma establishment, and after his office encouraged Oklahomans to do the same.

Soon after, on March 30, several reproductive health care providers — including the South Wind Women’s Center, the Comprehensive Health Care of Planned Parenthood Great Plains, and Dr. Larry Burns — filed a lawsuit challenging the executive order in the U.S. District Court for the Western District of Oklahoma. Earlier this week, U.S. District Judge Charles Goodwin issued a temporary restraining order halting portions of the Oklahoma abortion ban on the grounds that banning such care was “oppressive” and “unreasonable,” and would cause “irreparable harm” to women unable to obtain abortions in the state. 

The State of Oklahoma asked the U.S. Court of Appeals for the Tenth Circuit to set aside the lower court’s decision and reinstate the ban. 

Today, Attorney General James and the coalition of attorneys general filed an amicus brief opposing Oklahoma’s request for a stay of the temporary restraining order, stressing that a ban on medication abortions (an abortion brought on by taking two prescription drugs) or on other abortions for patients who would otherwise permanently lose their right to lawfully obtain an abortion in Oklahoma infringes on a woman’s constitutional rights. The coalition explains that the “characterization of the ban as prohibiting only ‘elective’ procedures fails to recognize how the time-sensitive nature of abortion care distinguishes that care from services that can be deferred without patient harm during the current public health crisis.”

The coalition goes on to highlight that if the ban were to be reinstated, women in Oklahoma would be forced to make “risky and expensive” travel plans to cross state lines and obtain an abortion, a point not disputed by the State of Oklahoma. 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.

Additionally, the coalition explains why a ban on abortion would not help the state preserve personal protective equipment (PPE), free up hospital beds, or prevent the spread of COVID-19 transmissions. The exact opposite is actually true, as medical abortions do not typically require any PPE and neither a medical abortion nor a procedural abortion require regular hospitalization.

Further, the coalition notes that residents of New York and other amici states may currently be in Oklahoma without a way to return home, but they still have a right to time-sensitive reproductive care.

The attorneys general conclude by stating that abortion “clinics in amici States have increased the use of telehealth” in an effort to provide women with the proper health care they want and need. Instead of limiting women’s access to abortions, Oklahoma should be joining Attorney General James’ call to increase access to telehealth medicine and the medical abortion pill so that woman who choose to have an abortion don’t have to fear going out and contracting COVID-19 during this public health crisis. Last week, 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.

Today’s brief follows a similar amicus brief Attorney General James led one week ago, in a lawsuit brought against Texas — in Planned Parenthood v. Abbott — for instituting a similar abortion ban, using the coronavirus as an excuse.

Medical professionals — including the American College of Obstetricians and Gynecologists — recently denounced the abortion bans being imposed by multiple states in light of 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 Oklahoma and Texas, the States of Alabama, Iowa, Mississippi, and Ohio have all also implemented similar orders banning abortions during the COVID-19 pandemic, limiting their residents’ constitutional rights to access an abortion. Attorney General James will continue leading national fights opposing these types of abortion bans.

The filing of these amicus briefs are just the latest in a long list of measures Attorney General James has taken to protect women’s reproductive freedom since taking office. Earlier this week, Attorney General James 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. 

Also this week, 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 last week, asking the federal courts to immediately rule on the lawsuit.

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 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 Eighth Circuit Court of Appeals — 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 — 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 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 clinics application for a license to open an abortion clinic that would provide medication 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, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.