Attorney General James Pushes to Increase Abortion Access by Medication During Coronavirus Pandemic

AG James Calls on HHS and FDA to Lift Restrictions on Mifepristone,
Pill Allowing Women to Access Time-Sensitive Abortions Via Telehealth

NEW YORK – New York Attorney General Letitia James today continued her to push to ensure women across New York and the nation are able to access safe and legal abortions during the coronavirus disease 2019 (COVID-19) public health crisis. In a letter to both the U.S. Department of Health and Human Services (HHS) and the U.S. Food and Drug Administration (FDA), Attorney General James, as part of a multistate coalition of 21 attorneys general from around the nation, requested 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. The attorneys general call on the 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.

“As the coronavirus spreads across the country and residents are asked to stay at home, the federal government should be doing everything in its power to ensure women can maintain control of their reproductive choices,” said Attorney General James. “While any woman who wants to go into a doctor’s office or into a clinic today and get an abortion should continue to be able to do so, control over one’s reproductive freedom should not be limited to those able to leave their homes as we battle the coronavirus. Our coalition is calling on the federal government to make Mifepristone more easily accessible so that no woman is forced to risk her health while exercising her constitutional right to an abortion.”

In 2000, the prescription drug Mifepristone — sometimes referred to as RU-486 — became the first FDA-approved medication to induce medical abortions, and today still remains the only drug approved in the United States for pregnancy termination. Since its approval, three-million women in the United States have used the medication, which entails women taking two different medicines to bring about an abortion. 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 have the option of an aspiration or surgical abortion that typically requires a short procedure.

In their letter to HHS and the FDA, Attorney General James and the coalition of attorneys general point out that medical abortions have been proven safe and effective, and should not be subject to unnecessary restrictions. The coalition goes on to note that while the nation endures the unprecedented COVID-19 crisis, it is essential that women across the country are able to continue accessing critical health care services. Many states have already taken steps to increase telehealth care, at the federal government’s request, yet, the current REMS set forward by the FDA creates unnecessary barriers for women to access the abortion care they so choose. Under the REMS, the FDA requires that:

  • Patients must be handed the medication at a clinic, medical office, or hospital under the supervision of a health care provider;
  • Health care providers must be registered with the drug manufacturer; and
  • Patients must sign a “Patient Agreement” form confirming that they received counseling on the risks associated with the medication.

These onerous and medically unnecessary requirements limit a health care provider’s ability to assist their female patients, particularly during the COVID-19 global public health crisis. 
Furthermore, these requirements impose significant burdens on women across the nation. Those in rural and medically underserved communities could be required to travel long distances for time-sensitive, in-person care. And those women in more compact, urban cities may not have the option to practice social distancing outside the home, therefore increasing the likelihood of coming in contact with an individual who has contracted COVID-19.

The attorneys general go on to contend, in their letter, that forcing women to travel at a time when many states and the federal government are urging people to stay home to curb the spread of the coronavirus is not only shortsighted, but also puts women across the country in harm's way. Consequently, the attorneys general urge the Trump Administration to immediately remove the FDA REMS designation, and waive enforcement in the meantime, so that women can continue to make their own constitutionally-protected reproductive decisions without putting themselves and their families at risk.

The American College of Obstetricians, the American Medical Association, and the American Association of Family Physicians all support removal of the REMS on medical abortions.

Today’s letter is just the latest action Attorney General James has taken to protect women’s access to abortion coverage since the spread of COVID-19 began in the United States. On Friday, Attorney General James announced that she will begin building and will soon lead a multistate coalition of attorneys general from around the nation in filing an amicus brief supporting the plaintiffs in Planned Parenthood v. Abbott, in the U.S. District Court for the Western District of Texas, after the State of Texas last week issued a directive banning nearly all abortion services in the state, using the coronavirus as an excuse.

Also, 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.

Since taking office in January 2019, Attorney General James has been a leader in the fight to protect women’s reproductive freedom. Most recently, in January 2020, 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.

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. 

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 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 letter are the attorneys general of California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia.