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

Tennessee Challenge Follows Alabama, Arkansas, Oklahoma, and Texas Court Battles
Against Similar Bans Imposing Restrictions on Women’s Reproductive Freedoms

NEW YORK – New York Attorney General Letitia James today led a multistate coalition of 19 attorneys general in seeking to stop the State of Tennessee from banning almost all procedural 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 Sixth Circuit, supporting the plaintiffs in Adams & Boyle, P.C., v. Slatery, as they fight to preserve access to reproductive health care for women across Tennessee.

“Tennessee is the latest state to use the coronavirus as an excuse to outlaw abortion and strip women of their constitutional rights,” said Attorney General James. “This is just another power grab by a state willing to sacrifice women’s abortion rights to push a suppressive political agenda. We are standing up against this ban because the efforts by Tennessee and multiple other states to deny women their constitutionally-guaranteed rights will not go unchallenged. This is about protecting women’s bodies and their freedoms.”

Women seeking an abortion in Tennessee typically can obtain a medication abortion (induced by taking two different prescription drugs) or a procedural abortion (performed by aspiration or by dilation and evacuation, neither of which involves general anesthesia or incision). Medication abortions can take place through the 11th week of pregnancy in Tennessee, while a procedural abortion can currently take place through the 20th week of pregnancy, despite indications by the governor and many members of the legislature to scale back those timeframes.

On March 23, 2020, Tennessee Governor Bill Lee issued Executive Order No. 18, in which he declared: “All hospitals and surgical outpatient facilities…shall not perform non-essential procedures, which includes any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” Although the governor — through his aides — made clear his “hope and expectation” that "elective" abortions wouldn't take place during the pandemic, he allowed for certain exemptions in his order, including one for “pregnancy-related visits and procedures.”

As has been reported in multiple news outlets, opponents of abortion — including legislatures, lobbyists, and activists — then put pressure on the governor’s office to clarify the first executive order and ban all abortions in the state. Emails released in the media show one lawmaker even asking the governor’s office if they had explored how other states addressed the “apparent way around” the order Tennessee abortion providers were using to continue providing abortion services. On April 8, before his earlier emergency order expired, Governor Lee issued Executive Order No. 25 with stricter guidelines that declared: “All health care professionals and health care facilities in the State of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent,” in which the life or health of the patient is not in jeopardy. Following that order, Tennessee Health Commissioner Lisa Piercey warned health care providers about the potential to be charged with a Class A misdemeanor and face penalties and discipline by medical boards if they did not comply with the governor’s executive order.

The next week, on April 13, the CHOICES Memphis Center for Reproductive Health, the Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Adams & Boyle P.C, and Dr. Kimberly Looney (an obstetrician-gynecologist) sought to file an amended complaint in a lawsuit in the U.S. District Court for the Middle District of Tennessee, along with a motion for a preliminary injunction to immediately halt the ban of all procedural abortions. In that suit, the providers had previously challenged Tennessee’s 48-hour waiting period for any woman seeking an abortion.

Last Friday, on April 17, the district court accepted the plaintiffs’ amended complaint and granted a preliminary injunction that immediately halted the ban of procedural abortions. The court found that “[d]elaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether."

That same day, Tennessee appealed the order for a preliminary injunction to the U.S. Court of Appeals for the Sixth Circuit.

In the amicus brief filed today in the Sixth 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 procedural abortions in Tennessee infringes on a woman’s constitutional rights. The coalition explains that the Tennessee defendants’ “characterization of the ban as a few weeks’ postponement of an ‘elective and non-urgent’ procedure 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” because procedural “abortions cannot be deferred indefinitely or for long stretches without increasing risks for some women and denying access to others.”

The coalition notes that a ban on procedural abortions — “which appellants do not dispute will likely be extended even further — 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 procedural abortions, even for a short period of time, would harm some women by requiring them “to undergo a more invasive and complex procedural abortion.”

Additionally, the coalition goes on to highlight that the procedural abortion ban would force some women in Tennessee to make “risky and expensive” travel plans to cross state lines in order to obtain a procedural 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, residents of New York and other amici states may currently be in Tennessee without a way to return home, but they still have a right to time-sensitive reproductive care.

The attorneys general add that: “To decrease transmission risks, 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. While Tennessee has taken similar steps to increase telehealth, it has refused to do so for abortion care.”

Instead of limiting women’s access to abortions, Tennessee 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 procedural abortion would not help the state preserve PPE 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 court found that “[procedural] abortions require significantly less PPE and provider-patient interaction than continuing a pregnancy” does. The coalition’s brief also notes that procedural 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, “[b]ecause some of these events are inevitably avoided by providing access to timely abortion procedures, denying access to timely abortions may not appreciably conserve PPE and reduce transmission risk even in the short term,” but could actually use more resources.

This brief follows four similar multistate amicus briefs Attorney General James filed 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 of a suit brought against state officials in the State of Oklahoma, in Southwind Women’s Center LLC v. Stitt, the third in support of a suit brought against state officials in the State of Arkansas, in In re Leslie Rutledge, and the fourth in support of a suit brought against state officials in the State of Alabama, in Robinson v. Marshall.

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 Tennessee, Texas, Oklahoma, Arkansas, and Alabama, the States of Iowa, Louisiana, Mississippi, and Ohio 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.

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. Earlier this week, 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, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

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