Attorneys General James Co-Leads Coalition Supporting Biden-Harris Administration’s Efforts to Protect Abortion Coverage

AG James Co-Leads Multistate Coalition of 11 AGs in Supporting New Rule
That Cancels Out 2019 Rule Requiring Separate Abortion Billing

NEW YORK – New York Attorney General Letitia James today continued her leadership in the fight to safeguard the health care and reproductive rights of patients across New York and the rest of the nation. Attorney General James co-led a coalition of 11 attorneys general in submitting a comment letter to the U.S. Department of Health and Human Services (HHS), voicing their support of a new, proposed rule — put forward by the Biden-Harris Administration — that would protect abortion coverage for women nationwide and cancel out a 2019 rule that has the possibility to make it more difficult for women to access abortion services under the Patient Protection and Affordable Care Act (ACA). If successful in an appeals court challenge, the Trump era rule will not only require insurers participating in state exchanges under the ACA to send consumers the typical premium bill they receive for covered health benefits, but also a second, premium bill of at least one dollar for abortion coverage. If implemented, the 2019 rule threatens to potentially kick millions of women off their health plans if they fail to pay the one-dollar bill and do not comply with this technical billing issue. In today’s letter, the attorneys general urge the Biden-Harris Administration to finalize a new rule that is more consistent with the ACA and that eliminates the option that allows insurers to separately bill for the portion of health insurance premiums attributable to abortion coverage.

“Women across this country should not have to suffer repeated attacks on their reproductive freedom,” said Attorney General James. “I applaud the Biden-Harris Administration’s effort to dismantle this burdensome restriction and reject this anti-choice assault on patients across the country. As a number of states continue to pass legislation that unlawfully restrict access to safe and legal abortions, I will continue to do everything in my power to protect women’s constitutional right to choose and will fight to ensure women everywhere can retain control over their own bodies.”

If implemented, the rule in question would illegally reinterpret Section 1303 of the ACA by requiring qualified health plans that participate in the state exchanges, like the New York State of Health, to send two separate monthly bills for payments of a health insurance premium — even if no abortion service is provided — and to collect separate monthly payments for abortion services from all consumers. One bill would be for the premium amount attributable to abortion coverage (and will have to be at least one dollar), and a second bill will compromise the premium amount attributable to the remaining coverage, which may include services like primary doctor appointments, hospital visits, and other services covered by insurance. If a consumer misses even a single one-dollar payment, that individual could potentially lose all health coverage on the exchange. The Trump Administration’s HHS itself had conceded that requiring separate bills and separate payments would inevitably lead to consumer confusion, putting the more than 214,000 New Yorkers who already enrolled in a qualified health plan this year alone at risk of losing coverage if they inadvertently fail to make full premium payments on time. 

In January 2020, Attorney General James co-led a multistate coalition with California in filing a lawsuit that challenged the legality of the 2019 Trump era rule. The lawsuit argued that the 2019 rule was unreasonable, incompatible with the ACA’s protections and compliance requirements of Section 1303, and disproportionately affected states, like New York, that are committed to ensuring access to comprehensive reproductive health care. The coalition’s efforts were successful and, last July, the U.S. District Court for the Northern District of California vacated the 2019 rule. Before leaving office, the Trump Administration appealed the decision to the U.S. Court of Appeals for the Ninth Circuit. The circuit court has yet to rule on the matter.

In their support for the Biden-Harris Administration’s proposed rule, the coalition states that the new rule will protect consumers' health insurance coverage at a time when the coronavirus disease 2019 (COVID-19) public health crisis has caused many Americans to lose both their jobs and their health coverage, as well as protect reproductive freedom for women nationwide. Now, as individuals and families continue to sign up for health insurance through special enrollment periods, the proposed rule will ensure their coverage is not again put at risk.

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. 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 several, recently-enacted abortion 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 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 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 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 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 who 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 co-leading today’s letter is California Attorney General Rob Bonta. The two are joined by the attorneys general of Colorado, Illinois, Maine, Maryland, Massachusetts, Oregon, Vermont, Washington, and the District of Columbia.

For New York, this matter was handled by Assistant Attorney General Colleen Faherty of the Executive Division; Assistant Attorney General Brant Campbell of the Health Care Bureau, under the supervision of Acting Deputy Bureau Chief Leslianne Cachola; and Senior Assistant Solicitor General Judith N. Vale, under the Supervision of Solicitor General Barbara D. Underwood. The Health Care Bureau is a part of the Division for Social Justice, which is led by Chief Deputy Attorney General Meghan Faux. Both the Executive Division and the Division for Social Justice are overseen by First Deputy Attorney General Jennifer Levy.

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