Attorney General James Challenges Tennessee’s Restrictive Abortion Law
NEW YORK – New York Attorney General Letitia James today continued her leadership in the national fight to ensure women’s reproductive health care is not stifled or infringed upon in any way. As part of a coalition of 20 attorneys general from around the nation, Attorney General James filed an amicus brief supporting a group of Tennessee abortion providers in Bristol Regional Women’s Center v. Slatery. The coalition of attorneys general are supporting the providers’ challenge to a Tennessee law requiring women seeking abortions to attend two in-person appointments with physicians no fewer than 48 hours apart before undergoing the procedure. The plaintiffs argue that Tennessee’s waiting-period law subjects women to an unnecessary and onerous requirement that will, in practice, delay abortions and increase the risks for women who seek to obtain them. In today’s brief, the coalition explains that waiting period laws are not necessary to ensure informed consent — Tennessee’s supposed aim — and impose substantial burdens on women and abortion rights.
“Decades after access to an abortion was etched in the Constitution, states continue to look for ways to turn back the clocks and unconstitutionally restrict women’s reproductive rights,” said Attorney General James. “Time and again, various states have passed laws that seek to limit reproductive choices and control women’s bodies. This latest law by Tennessee not only does that, but does so while placing women’s health at risk. Our coalition will continue to fight to protect women’s bodies, their freedoms, and their choices.”
In 1992, the U.S. Supreme Court ruled, in Planned Parenthood v. Casey, that a state may impose restrictions on a woman’s right to terminate her pregnancy only if those restrictions are reasonably related to a legitimate state interest, such as protecting women’s health, and do not impose a substantial obstacle to the exercise of that right. Following a four-day trial challenging Tennessee’s waiting period law in September 2019, a district court issued a thorough and comprehensive opinion, finding, among other things, that the law “provides no appreciable benefit” to women’s health, and, instead, “imposes numerous burdens that, taken together, place women’s physical and physiological health and well-being at risk.”
In today’s brief, the coalition urges the U.S. Court of Appeals for the Sixth Circuit to uphold the district court’s ruling. The coalition explains that — contrary to Tennessee’s suggestion — many states do not subject women seeking abortion care to lengthy and onerous waiting periods, and, instead, treat abortion as a medical service that, like many others, is governed by standard ethical and legal obligations to secure patients’ informed consent. The attorneys general argue that because there is no evidence that women in these states fail to make informed decisions about their medical needs, Tennessee’s waiting-period law is not reasonably related to the aim of ensuring informed consent.
The coalition also argues that waiting-period laws impose serious burdens on women seeking medical care by delaying abortions and thereby increasing associated medical risks, as well as adding financial and logistical costs.
Today’s action is just the latest in a long list of measures Attorney General James has taken to protect patients’ reproductive freedom since taking office. In February 2021, Attorney General James led a coalition of attorneys general in filing an amicus brief in American College of Obstetricians and Gynecologists et al. v. FDA et al., where she encouraged an appeals court to uphold a lower court’s preliminary injunction that provided patients with safe access to medication abortions and miscarriage treatment via telehealth, all in an effort to minimize the risk of exposure to COVID-19. The preliminary injunction, previously issued, partly paused a U.S. Food and Drug Administration (FDA) requirement that forces women to appear in person in a clinical setting to receive a drug known as mifepristone for an early abortion and miscarriage treatment, making the drug readily accessible via telehealth and mail delivery for abortion patients, so as to not potentially expose those patients to COVID-19 by requiring unnecessary travel. The amicus brief followed up on three previous amicus briefs filed in this case by a coalition of states led by Attorney General James — in the U.S. District Court for the District for Maryland in June 2020, in the U.S. Court of Appeals for the Fourth Circuit in August 2020, and in the U.S. Supreme Court in September 2020 — asking those courts to issue or leave in effect the preliminary injunction suspending the FDA’s in-person requirements for mifepristone. The four amicus briefs also followed up on a letter Attorney General James sent, in March 2020, to both the U.S. Department of Health and Human Services (HHS) and the FDA requesting that the Trump Administration waive or utilize its discretion not to enforce a specific designation, which dictates and subsequently impedes patients’ access to reproductive care, including medication abortions. Attorney General James called on the Trump Administration to ensure that patients across the country can more easily access this critical health care service while the pandemic leaves many unable to seek in-person care.
In February 2021, Attorney General James filed a lawsuit against two anti-choice protesters who repeatedly violated federal, state, and local clinic access laws by threatening those entering a Planned Parenthood location in New York City with violence and other intimidating and disruptive behavior. The two defendants’ actions posed a direct risk to the health and safety of patients, escorts, and health center staff entering the facility.
In October 2020, Attorney General James co-led a coalition of 22 attorneys general in filing a petition that asked the U.S. Supreme Court to review a decision from the U.S. Court of Appeals for the Ninth Circuit that upheld the Trump Administration’s Title X family planning rule. 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 — a requirement that is so expensive and so difficult to accomplish that it is driving many providers out of the program and could possibly drive them out of business. The petition followed a lawsuit, filed in March 2019, where Attorney General James co-led the coalition in challenging the Trump Administration regulations that threaten essential services provided under federal Title X funding. Separately, but analogously, in May 2020, Attorney General James led a coalition of 19 attorneys general in filing an amicus brief — in the U.S. Court of Appeals for the Fourth Circuit — in a similar lawsuit brought by the city of Baltimore against the Trump Administration’s Title X rule.
In July 2020, Attorney General James scored a major nationwide win for reproductive freedom after a federal court threw out a Trump Administration rule that would have made it more difficult for patients in New York and across the nation to access abortion services under the Affordable Care Act. In January 2020, Attorney General James co-led a coalition of attorneys general in filing a lawsuit against HHS for putting forward the rule, arguing that it jeopardized the health coverage of all consumers confused by its billing practice. Attorney General James followed up on the lawsuit by filing a motion for summary judgment in March 2020 that led to this win. In addition to litigating this matter, Attorney General James also opposed this rule by sending a letter to HHS, in April 2020, asking that the rule be withdrawn or significantly delayed as the nation dealt with the COVID-19 pandemic, and by sending another letter to HHS, in July 2020, after an interim rule did not delay the rule long enough.
In June 2020, Attorney General James helped score another major victory at the U.S. Supreme Court — in the case June Medical Services v. Gee — by helping to overturn a Louisiana law that would have required abortion providers to maintain admitting privileges at a local hospital. In December 2019, Attorney General James led a multistate amicus brief in support of a challenge by the petitioners in the case in an effort to protect the ability of patients across the nation to maintain access to safe, legal abortions, as is their constitutional right.
In April 2020, Attorney General James led a coalition of attorneys general 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 fought to ensure patients across the state of Tennessee could continue to access an abortion after executive orders in the state banned procedural abortions, using COVID-19 as an excuse.
Also, in April 2020, Attorney General James led a coalition of attorneys general 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 fought to preserve access to reproductive health care after an executive order in Alabama banned nearly all abortions in the state, using the coronavirus as an excuse for the ban.
Earlier, in April 2020, Attorney General James led a coalition of attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Eighth Circuit — supporting the plaintiffs in Little Rock Family Planning Services v. In re Leslie Rutledge — as they fought to protect access to procedural abortions in the state of Arkansas, after the state Department of Health used an emergency health order to ban all procedural abortions in Arkansas, using COVID-19 as the reasoning for the ban.
Additionally, in April 2020, 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 — 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. Attorney General James also sent letters to other insurers in New York, reminding them about their obligation to provide 12 months of contraceptive coverage to women under New York’s Comprehensive Contraception Coverage Act.
Even earlier, in April 2020, Attorney General James led a multistate 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 fought to preserve access to reproductive health care for patients across the state of Oklahoma and worked to stop the state from banning almost all abortions in Oklahoma when it used the COVID-19 public health crisis as an excuse.
Prior to that, in April 2020, Attorney General James and a coalition of attorneys general filed an amicus brief in the U.S. Supreme Court — in Little Sisters of the Poor v. Pennsylvania — supporting a lawsuit defending the contraceptive coverage and counseling requirement previously mandated by rules under the Affordable Care Act that have now been limited by broad religious and conscience exemptions created by the Trump Administration. The old contraceptive rules benefited more than 62 million women across the country.
At the beginning of April 2020, Attorney General James led a multistate coalition of attorneys general from around the nation in filing an amicus brief supporting the plaintiffs in Planned Parenthood v. Abbott, after the state of Texas issued a directive banning nearly all abortion services in the state, using COVID-19 as an excuse.
In March 2020 — at the onset of the COVID-19 pandemic — Attorney General James called on the federal government and states across the country to ensure access to safe, legal abortions would not be jeopardized or curtailed as a result of the spread of COVID-19.
In January 2020, 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 2020, Attorney General James successfully argued that patients in Rochester seeking to have an abortion should be able to do so 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.
Earlier, in January 2020, Attorney General James filed a multistate amicus brief in support of a lawsuit that seeks to protect the 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 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 patients in Arkansas to access abortions by banning abortions after 18 weeks and otherwise restricting access to reproductive care.
In November 2019, Attorney General James secured another major victory for reproductive freedom after a federal court invalidated a Trump Administration rule that would have allowed businesses and individuals to refuse to provide necessary health care on the basis of businesses' or employees’ “religious beliefs or moral convictions.” The victory came after, in May 2019, Attorney General James led a coalition of 23 states, cities, and municipalities in filing a lawsuit against the Trump's Administration's HHS for putting forward the rule, arguing that it undermined the delivery of health care by giving health care institutions and individuals — including employers — the right to refuse care based on the providers’ own personal views and not the choices of a patient.
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 lawsuit 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 June 2020, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court's permanent injunction against the law.
Joining Attorney General James in filing this amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.