Attorney General James Leads Fight to Stop Texas from Blocking Abortions During Coronavirus Pandemic
AG James Leads Filing of Multistate Amicus Brief Against Texas’
Unconstitutional Ban on Essential Reproductive Health Care
NEW YORK – New York Attorney General Letitia James today continued her leadership of the nation’s fight to ensure women’s reproductive health care is not stifled or infringed upon in any way during the coronavirus disease 2019 (COVID-2019) public health crisis. Attorney General James is leading a coalition of 19 attorneys general in filing an amicus brief — supporting the plaintiffs in Planned Parenthood v. Abbott, in the U.S. Court of Appeals for the Fifth Circuit — opposing the State of Texas’s directive banning nearly all abortion services in the state, using the coronavirus as an excuse.
“Neither Texas nor any other state has the right to use the coronavirus as an excuse to restrict a woman’s constitutional right to access an abortion,” said Attorney General James. “This is clearly an effort to circumvent the Supreme Court’s decision nearly 50 years ago guaranteeing women control over their bodies. Instead of trying to strip women of their choices, Texas should be joining us to increase access to medical abortions as we battle COVID-19. Our coalition will not hesitate to take legal action against any assault on women’s choices, women’s freedoms, and women’s bodies.”
On Sunday, March 22, Texas Governor Greg Abbott issued Executive Order GA-09, “postpon[ing] all surgeries and procedures that are not immediately medically necessary” in the State of Texas for at least 30 days. The next day, Texas Attorney General Ken Paxton announced that the executive order banned abortion services unless the life of the mother was in jeopardy. The executive order also states that any health care worker caught defying the order could be fined up to $1,000 and/or imprisoned in jail for up to 180 days.
Last Wednesday, a lawsuit was filed by the Center for Reproductive Rights, Planned Parenthood Federation of America, and the Lawyering Project in the U.S. District Court for the Western District of Texas, which called on the courts to immediately issue a temporary restraining order blocking the ban.
Earlier this week, District Court Judge Lee Yeakel issued a temporary restraining order that stopped the abortion ban from taking effect, stating, “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure.” Judge Yeakel continued, “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings.”
The very next day — following a request by Texas — the U.S. Court of Appeals for the Fifth Circuit halted the district court’s decision, effectively reinstituting the ban on abortions in Texas. According to news reports, women in Texas have already been turned away when seeking an abortion because of the directive.
Today, Attorney General James is following through on last week’s pledge to lead a coalition of attorneys general in opposing Texas’ ban and filing an amicus brief in support of the plaintiff organizations. In the amicus brief, Attorney General James and the coalition argue that reproductive health care is an “essential medical service” that should be available to women, despite the ongoing public health emergency and that Texas’s “prohibition blocks the exercise of a woman’s constitutional right to access abortion.” Although Texas claims that its abortion ban is needed to conserve limited personal protective equipment (PPE), “most pre-viability abortions do not use PPE or hospital services, and thus restricting such abortions does not appreciably preserve those resources.”
The coalition goes on to argue, at a time when the entire U.S. population is being asked to limit travel, any restriction on abortions could force “women to seek those services in other States, thereby increasing the potential for transmission of COVID-19 and for burdening petitioners’ hospital facilities and PPE supplies.” Further, the coalition contends that residents of New York and other amici states may currently be in Texas without a way to return home, but they still have a right to time-sensitive reproductive care. Additionally, the coalition highlights that as New York nears the peak of projected COVID-19 hospitalizations, health care professionals from other states are being asked to travel to New York to assist, on the understanding that New York health care professionals will eventually travel to other states in an effort to assist when other states’ COVID-19 infection rates rise. These New York physicians should be able to provide residents in Texas with the same health care options they would receive anywhere else.
The coalition concludes by arguing that “a public health crisis should not be used as an excuse to deny women ‘an ability to control their reproductive lives,’” and that any ban on abortion — even for a matter of weeks — can end up restricting a woman’s “constitutional right to choose to terminate a pregnancy prior to fetal viability,” especially in states, like Texas, which already have limited timetables in place for electing to have an abortion.
Instead of limiting women’s access to abortions, Texas 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. Earlier this 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 medical-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.
The States of Alabama, Iowa, Mississippi, and Ohio have also implemented similar orders banning abortions during the COVID-19 pandemic, limiting their residents’ constitutional rights to access an abortion. Attorney General James plans to lead coalitions opposing these bans as well.
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. Last week, 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 co-led a coalition of seven attorneys general in filing a lawsuit against the Trump Administration for making it more difficult for women in New York and across the nation to access abortion services under the Affordable Care Act. Just this week, Attorney General James and the coalition filed a motion for summary judgement, asking the federal courts to immediately rule on the lawsuit.
Also, 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.
Additionally 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.
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 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.
Joining Attorney General James in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawai‘i, 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 Solicitor General Laura Etlinger, Senior Assistant Solicitor General Judith N. Vale, Deputy Solicitor General Anisha Dasgupta, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions.