Attorney General James Continues Fight to Maintain Safe Access to Reproductive Health Care During COVID-19 Pandemic
AG James Leads Coalition in Filing Amicus Brief Seeking to Maintain Safe Access
to Abortion Pill Mifepristone via Telehealth as Public Health Crisis Continues
NEW YORK – New York Attorney General Letitia James today continued her to push to ensure that patients across New York and the nation are able to access safe and legal abortions during the coronavirus disease 2019 (COVID-19) public health crisis. Attorney General James leads a multistate coalition of 23 attorneys general in filing an amicus brief in support of the plaintiffs’ request for a preliminary injunction in American College of Obstetricians and Gynecologists et al. v. FDA et al., as they seek to ensure patients’ safe access to medication abortions and miscarriage treatment via telehealth, all in an effort to minimize the risk of exposure to COVID-19. Last summer, a lower court issued a preliminary injunction halting a Food and Drug Administration (FDA) requirement that forced patients to appear in person in a clinical setting to receive a drug known as mifepristone for an early abortion. The coalition, today, urges the appeals court to uphold that relief for abortion patients and to modify the injunction to also cover patients seeking mifepristone for miscarriage management. The coalition has argued in the past — and continues to argue in today’s amicus brief — that the drug should be readily accessible via telehealth and mail delivery, so as to not potentially expose patients to COVID-19 by requiring unnecessary travel.
“Every day we use telehealth for a variety of our health needs, so continuing to do the same for patients needing miscarriage treatment or those seeking medication abortions should be no different,” said Attorney General James. “As we continue to battle the coronavirus and face more contagious variants of the disease, the last thing we should be doing is increasing the chance of exposure for patients needing miscarriage treatment or seeking to carry out their constitutional right to access an abortion. With more than 27 million confirmed cases of COVID-19 in the U.S. alone, it is vital we maintain every effort to prevent any further spread of this deadly disease. Patients shouldn’t need to choose between receiving reproductive care or preventing exposure to a dangerous disease; both are and should be possible.”
Since COVID-19 began to spread across the United States in early 2020, more than 27 million Americans have contracted the disease, resulting in more than 476,000 deaths, and the federal government expects deaths to hit more than half a million in the next two weeks. In New York alone, approximately 1.5 million residents in the state have been confirmed positive for the disease and nearly 37,000 have died from it. In response, legislators, officials, and agencies in New York and across the nation have instituted various emergency measures to slow the spread of the virus by limiting face-to-face contact and reducing in-person social gatherings, because limiting interpersonal contact is central to the ability of states to control the spread of the virus, maintain hospital capacity, and save lives.
Despite all these efforts, new, much more contagious variants of the virus have begun to spread across the country. In fact, public health experts expect the rate of infections and deaths to increase even more in the next several months due to these new variants. One new variant — which is estimated to be 50 percent more infectious than the current prevailing strain in the U.S. — is expected to become the dominant strain in the U.S. by next month. As compared to the current prevailing strain, this new variant could result in twice as many infections and deaths over a two-week period, and four or five times as many infections and deaths over a month. The Centers for Disease Control and Prevention (CDC) has warned that the additional demand for health care resources and hospital capacity associated with the accelerated surge of infections may further increase death rates.
The FDA’s requirements — previously halted by a lower court, and the subject of today’s amicus brief — force patients to appear in person in a clinical setting to receive mifepristone, thereby heightening the risk of contracting and transmitting COVID-19 for everyone involved, including patients and health care providers. Before the pandemic, patients seeking medication abortions represented nearly 40 percent of all abortion patients in the U.S. in 2017. Additionally, approximately 10 percent of all clinically recognized pregnancies result in a miscarriage, some of which may be safely managed with the use of mifepristone. Forcing these patients to travel at a time when many states, including New York, are urging people to limit in-person contacts to curb the spread of COVID-19 is shortsighted — not only putting patients across the country and their close contacts in harm’s way, but also harming public health more generally. Further, the FDA requirements undermine states’ ability to effectively manage the pandemic.
In today’s brief — filed in the U.S. Court of Appeals for the Fourth Circuit — Attorney General James and the coalition specifically argue that enforcing the FDA requirements during the current public health crisis will harm patient safety and the public interest in at least two ways: 1) by conditioning access to essential reproductive health care on an increased risk of virus infection and 2) undermining the states’ ongoing efforts to manage the crisis through measures limiting unnecessary in-person contacts, such as telehealth. These measures are critical to the states’ ability to permit essential in-person activities, maintain health care capacity, and save lives — particularly as the new and much more contagious variants of the virus are spreading across the country.
Additionally, the coalition argues that many patients will need to travel long distances — sometimes up to 200 miles — in order to reach a clinic that dispenses mifepristone, especially if they reside in rural and medically underserved locations, therefore increasing the likelihood of coming into contact with an individual who has contracted COVID-19.
By using measures like telehealth to reduce unnecessary person-to-person contacts, states can safely provide access to essential reproductive care while reducing the risk of virus spread, as necessary, to safely commence reopening even as the pandemic continues. In fact, the coalition argues that telehealth should be used whenever appropriate in the judgment of the provider and consistent with standards of care because it maximizes the number of capable health care workers providing necessary medical treatment, while protecting health care staff and patients. And in the context of reproductive care, the counseling required prior to a medication abortion is routinely and safely provided through telehealth in order to reduce in-clinic interactions.
One of the FDA’s sister agencies — the CDC — has advocated for telehealth during the pandemic, advising health care practitioners to use telemedicine “whenever possible” as “the best way to protect patients and staff from COVID-19.”
The coalition goes on to highlight that because telehealth can be used to safely deliver essential health care, their states have already taken numerous steps to expand the use of telehealth during the current public health crisis — including the suspension of existing statutes and regulations that limit the use of telehealth — in order to allow the delivery of regulated services through telehealth to additional patient populations, including especially vulnerable ones. These suspension orders expand the types of practitioners who can use telehealth, the settings in which it can be provided, the modalities that can be used to deliver telehealth services, and the circumstances under which telehealth can be initiated. Further, many states have suspended rules that prohibit telehealth in the absence of an existing patient-provider relationship, so that patients can safely receive care from new providers without an in-person visit.
The American College of Obstetricians and Gynecologists — a plaintiff in this case —has championed telehealth as an effective substitute for in-clinic dispensing of mifepristone that can improve patient safety and outcomes during the COVID-19 public health crisis. And even before the pandemic, in 2018, the American Medical Association passed a resolution urging the FDA to lift the requirement.
In March 2020, Attorney General James, as part of a coalition of 21 attorneys general from around the nation, called on the Trump Administration to waive or utilize its discretion not to enforce the mifepristone requirement because it impedes patients’ access to reproductive care, including medication abortions. The coalition stressed the states’ need to ensure that patients across the country have access to critical health care, including access to abortion services, without forcing them to travel and risk the spread of COVID-19.
In 2000, the prescription drug mifepristone — sometimes referred to as RU-486 — became the first FDA-approved medication to induce medication abortions, and, today, still remains the only drug approved in the United States for pregnancy termination. Patients take mifepristone along with another drug to bring about an early-term abortion, or for treatment after experiencing a miscarriage. Since its approval, three million patients in the United States have used the medication. According to the FDA, this medication “has been increasingly used as its efficacy and safety have become well-established by both research and experience.”
Today’s amicus brief follows 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 the U.S. Court of Appeals for the Fourth Circuit, and in the U.S. Supreme Court — asking those courts to issue or leave in effect a preliminary injunction suspending the FDA’s in-person requirements for mifepristone.
Today’s brief is also just the latest in a long list of measures Attorney General James has taken to protect patients’ reproductive freedom since taking office. Earlier this week, 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 threatens 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 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 patients nationwide.
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 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.
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 medication abortions in South Bend.
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 this amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
This matter was handled by Assistant Solicitors General Laura Etlinger and Blair Greenwald, Deputy Solicitor General Anisha S. Dasgupta, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions.