Attorney General James Continues to Fight Unconstitutional Texas Abortion Ban at Supreme Court
Coalition of AGs File Multistate Amicus Briefs Urging SCOTUS to Uphold Rule of Law
by Affirming District Court Rulings Allowing Challenges to Go Forward
NEW YORK – Following a decision by the U.S. Supreme Court that it will hear two challenges to Texas’ unconstitutional six-week abortion ban — Senate Bill 8 (SB 8) — Attorney General James, as part of a coalition of 24 attorneys general, urged the court to uphold the rule of law by affirming the two district court rulings that allowed the cases to proceed while blocking the ban from going into effect in the meantime. In amicus briefs filed with the Supreme Court in United States of America v. State of Texas et al. and Whole Woman’s Health v. Jackson, the coalition calls on the court to refuse to allow Texas to evade judicial review of its blatantly unconstitutional ban, which is inflicting grave harms on people across Texas. The court will decide whether the challenges — brought by the U.S. Department of Justice (DOJ) and Texas abortion providers — can go forward. Today’s briefs argue that Texas must not be allowed to flout the Supreme Court’s binding precedent by passing a blatantly unconstitutional law or by seeking to insulate it from judicial review by purporting to grant enforcement authority solely to private bounty-hunters.
“For nearly two months, the people of Texas have suffered at the hands of legislators seeking to control women’s bodies, their choices, and their reproductive freedoms,” said Attorney General James. “Today, we are, once again, asking the Supreme Court to give us the chance to stop this blatant attempt to turn back the clock and take us back to a time where women were left with unthinkable choices. We will continue to fight efforts by Texas and other conservative-led states to limit reproductive choices and create some sort of twisted dystopia.”
According to today’s briefs, SB 8 represents a “new and dangerous frontier” when it comes to state legislatures restricting or eliminating abortion access. As the attorneys general have argued, SB 8 not only imposes a ban on almost all abortions in Texas in open disregard of the Supreme Court’s longstanding precedent, but also attempts to thwart judicial review and insulate Texas from accountability by purporting to create only a private enforcement scheme. SB 8 requires Texas courts to award at least $10,000, in addition to injunctive relief, to claimants who bring cases against anyone who provides an abortion in violation of SB 8 and those who “aid or abet” such constitutionally protected care. As such, the law threatens potential liability for anyone who so much as gives a patient a ride to an abortion provider.
Today, as a result of the ban, abortion has been outlawed to many people in Texas who do not even know they are pregnant yet. These patients now must travel out of state, which makes abortion for many people too difficult, too time-intensive, and too costly. Consequently, many will now be forced to delay care or carry unwanted pregnancies to term, resulting in negative health and socioeconomic consequences for both them and their children. And the harms caused by SB 8 are rippling well beyond Texas into other states, as people are forced to seek care elsewhere, in many places overwhelming capacity and threatening residents’ access to care. In New Mexico, in particular, all abortion clinics were reportedly booked for weeks just one day after SB 8 went into effect. And patients traveling from Texas have accounted for close to a third of the total abortion patients in New Mexico since September 1.
Similar to a brief filed by Attorney General James and other attorneys general in the Supreme Court earlier this month, today’s filing cites back to past examples from the nation’s history, particularly related to some states’ resistance to desegregation, in arguing that the court should not permit states to violate constitutional rights through state laws ostensibly enforced only by private parties. The Supreme Court “should not permit Texas to ‘nullif[y] indirectly’ the constitutional rights recognized in Roe and Casey through the ‘evasive scheme’ that it has created in SB 8,” the brief argues.
Soon after SB 8 took effect last month, Attorney General James and the coalition of attorneys general filed an amicus brief in support of the DOJ’s challenge to Texas’ ban on abortions in a district court, specifically the United States’ motion for a preliminary injunction of the law. On October 6, the U.S. District Court for the Western District of Texas granted the injunction and blocked SB 8 while the court adjudicated the United States’ case. At Texas’ request, however, the U.S. Court of Appeals for the Fifth Circuit stayed that injunction and allowed SB 8 to go back into effect during Texas’ appeal of the preliminary injunction.
The Fifth Circuit also stayed all proceedings in the case brought by Texas abortion providers, while the defendants sued in that case pursued an appeal from the district court’s denial of their motion to dismiss the case. Both cases are now before the Supreme Court on writs of certiorari to the Fifth Circuit before judgment and will be argued before the court on November 1. Last week, Attorney General James and the coalition of attorneys general filed an amicus brief in the U.S. Supreme Court, urging the high court to vacate the Fifth Circuit order.
Today’s actions are just the latest in a long list of measures Attorney General James has taken to protect patients’ reproductive freedom since taking office. Last month, Attorney General James filed an amicus brief in the U.S. Supreme Court, supporting a challenge to a Mississippi law that bans abortions after 15 weeks, with few exceptions, not even in cases of rape or incest. This amicus brief followed a lawsuit by the Jackson Women’s Health Organization. After the district court granted summary judgment for the plaintiffs and issued a permanent injunction, the state appealed and, in April 2019, Attorney General James and 21 other attorneys general filed an amicus brief in support of the clinic. In December 2019, the U.S. Court of Appeals for the Fifth Circuit struck down Mississippi’s law, which led to the state’s appeal to the Supreme Court.
Also in September 2021, Attorney General James helped score a victory when the U.S. Court of Appeals for the Sixth Circuit affirmed a preliminary injunction in the case in Memphis Center for Reproductive Health v. Slatery, enjoining a Tennessee law that, among other things, banned abortions after as early as six weeks. In December 2020, Attorney General James and a coalition of attorneys general filed an amicus brief in support of the plaintiffs’ challenge to that law.
Earlier in September 2021, Attorney General James and a coalition of attorneys general filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in the case Planned Parenthood South Atlantic v. Wilson, where they urged the court to uphold a lower court’s ruling blocking South Carolina’s “fetal heartbeat” law that bans abortions once fetal cardiac activity is detected and jeopardizes access to health care as a whole.
In June 2021, Attorney General James led a coalition of attorneys general in submitting testimony to the congressional record supporting passage of the Women’s Health Protection Act. The act would protect a woman’s constitutional right to access an abortion by prohibiting unnecessary restrictions — passed at the state level — that undermine the availability and safety of health care services.
Earlier, in June 2021, Attorney General James and a coalition of attorneys general helped score a major victory in the case Reproductive Health Services v. Parson, after the U.S. Court of Appeals for the Eighth Circuit affirmed a preliminary injunction enjoining a Missouri law that, among other things, banned abortions after as early as eight weeks into pregnancy. In January 2020, Attorney General James and the coalition filed an amicus brief in the case, challenging the constitutionality of that recently-enacted abortion ban and other bans in the state of Missouri.
In April 2021, Attorney General James secured an agreement that ended the harassing and obstructive behavior of two anti-choice protesters at a Planned Parenthood location in New York City. On numerous occasions, the two defendants threatened patients, escorts, and health center staff entering the facility. The agreement came as a result of a February 2021 lawsuit Attorney General James filed against the two anti-choice protestors for repeated violations of federal, state, and local clinic access laws.
Also, in April 2021, Attorney General James and a coalition of attorneys general filed an amicus brief supporting a group of Tennessee abortion providers in Bristol Regional Women’s Center v. Slatery, where the providers were challenging 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.
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 via telehealth and to extend that injunction to cover miscarriage treatment, 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 dictated and subsequently impeded patients’ access to reproductive care, including medication abortions. Attorney General James called on the Trump Administration to ensure that patients across the country could more easily access this critical health care service while the pandemic left many unable to seek in-person care.
In January 2021, Attorney General James led a multistate amicus brief for the U.S. Court of Appeals for the Fifth Circuit, sitting en banc in the case Whole Woman’s Health v. Paxton. The brief supports a lawsuit challenging a Texas 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.
Also, in January 2021, Attorney General James helped secure a victory in Little Rock Family Planning Services v. Rutledge from the U.S. Court of Appeals for the Eighth Circuit, after the court upheld a preliminary injunction blocking burdensome restrictions on abortions put in place by the passage of Arkansas laws. In January 2020, Attorney General James filed a multistate amicus brief in support of the last surgical abortion clinic in Arkansas as it sought to overturn the onerous restrictions on reproductive care.
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. Following their district court loss, the Trump Administration appealed the decision. In July 2021, Attorney General James sent a letter to the Biden-Harris Administration’s HHS, voicing her support for a new, proposed rule that would protect abortion coverage for women nationwide and cancel out the 2019 Trump era rule.
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. 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 a 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 lost their jobs and health insurance coverage, and tried 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 were 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.
At the onset of the COVID-19 pandemic, in March 2020, 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 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. In June 2020, Attorney General James submitted a brief to the U.S. Court of Appeals for the Second Circuit defending that victory.
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 the case Richard W. DeOtte et al. v Alex M. Azar in the U.S. Court of Appeals for the Fifth Circuit.
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 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.
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.
In March 2019, Attorney General James co-led a coalition of 21 attorneys general in challenging the Trump Administration’s Title X family planning rule — also known as the “gag rule” — which restricts health care providers that receive certain federal funds from counseling or making referrals for abortion. After the U.S. Court of Appeals for the Ninth Circuit upheld the rule, Attorney General James co-led the coalition, in October 2020, in filing a petition that asked the U.S. Supreme Court to hear the case. Separately, in May 2020, Attorney General James and another coalition of attorneys general filed an amicus brief in a different lawsuit brought by the city of Baltimore against the Trump Administration’s Title X rule. The U.S. Court of Appeals for the Fourth Circuit struck down the rule — enjoining it in Maryland while it remains in place across the rest of the nation — after which the Trump Administration filed its own petition asking the Supreme Court to hear the case. In March 2021, the coalitions in both cases joined with the Biden-Harris Administration to ask the Supreme Court to dismiss both cases, while the Biden-Harris Administration acts to rescind and replace the rule. In May 2021, the Supreme Court entered the order to dismiss both cases, and denied efforts by additional parties to step in and defend the gag rule. At the same time, Attorney General James co-led a coalition of 23 attorneys general in sending a comment letter to HHS, applauding the agency’s proposed rule to undo the harmful, Trump era Title X “gag rule.”
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 submitting today’s briefs to the Supreme Court 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 Wisconsin, and the District of Columbia.