New Trump Administration Rule Would Raise Abortion Costs and Place
Onerous and Confusing Requirements on Millions of Women Nationwide
as States Use Coronavirus as Excuse to Deny Abortion Coverage

NEW YORK – New York Attorney General Letitia James today co-led a multistate coalition of seven attorneys general in asking the federal courts to immediately rule on a lawsuit filed 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 (ACA). In late December 2019, the U.S. Department of Health and Human Services (HHS) issued a final rule that unlawfully reinterpreted 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 separate bills and collect separate payments of at least one dollar for abortion services. If a consumer misses the one-dollar payment, they could lose all coverage on the exchange. In their lawsuit, Attorney General James and the coalition argue that HHS’s onerous and confusing requirement threatens women’s access to abortion and puts millions at risk of accidentally losing their health insurance coverage. The lawsuit also highlights that the new rule is incompatible with the ACA’s requirement of equitable access to health care and disproportionately affects states — like New York, California, Maine, Oregon, and Vermont — that are committed to ensuring access to comprehensive reproductive health care by requiring health plans to provide abortion coverage. Today’s motion for summary judgement argues that the new rules violates federal law and is inconsistent with the ACA and therefore should be immediately vacated.

“As states across the nation take unlawful actions and use the coronavirus as an excuse to deny women their constitutional right to an abortion, it’s more important than ever that the federal government stops its attack on women’s reproductive rights,” said Attorney General James. “This new rule is simply another attempt to control women’s bodies and make it harder for those struggling financially to make the health care decisions that are right for them. We cannot sit by as a continued assault on women spreads across our nation, which is why our coalition will never stop fighting to ensure every woman is able to make her own reproductive choices. We’re calling on the courts to immediately rule that the Trump Administration’s continued attacks on women are unconstitutional and in direct violation of the precedent set by the Supreme Court.”

Under New York law, all private health plans regulated by the state are required to offer abortion coverage as part of their basic health care services, but the new Trump Administration rule requires insurers to separately bill for the portion of health insurance premiums attributable to abortion coverage. The rules also requires consumers to make a separate payment of at least one dollar for these services or risk losing all of their health care coverage. HHS itself has conceded that requiring separate bills and separate payments will inevitably lead to confusion for the more than 260,000 New Yorkers that have already enrolled in a qualified health plan this year. Additionally, the rule burdens states with unnecessary administrative costs and harms consumers who may face higher insurance premiums as a result of increased costs to carriers. For example, initial compliance is expected to cost all impacted insurance companies nearly $400 million, with another $100 million in estimated annual costs to maintain the separate systems. These excessive costs put pressure on insurers to remove abortion coverage from their plans and punish those companies that do business in states, like New York, where abortion coverage is required. 

In today’s motion for summary judgment — led by Attorney General James and California Attorney General Xavier Becerra — the coalition argues that the rule is unlawful because it:

  • Violates the Administrative Procedure Act and is unlawful under the ACA;
  • Violates Section 1557 of the ACA, as it discriminates against women by targeting a health care service unique to those with the ability to bear children — abortion;
  • Violates Section 1554 of the ACA, which prohibits the promulgation of any regulation that creates unreasonable barriers to the ability of individuals to obtain appropriate medical care; and
  • Seeks to frustrate state sovereignty by coercing states to change their policies relating to the protection of abortion care.

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. Yesterday, Attorney General James sent a letter to both the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration requesting 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 called on the Trump 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.

On Friday, Attorney General James announced that she 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. Last night, a federal judge stopped Texas from enforcing the order, ensuring that women in the State of Texas and those all over the country can continue to access the reproductive care they so choose.

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.

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 motion for summary judgement are the attorneys general of California, Colorado, Maryland, Maine, Oregon, Vermont, and the District of Columbia.

###

Lockwood Law

LEAVE A REPLY

Please enter your comment!
Please enter your name here