New York Attorney General Letitia James has led a multistate coalition of 23 attorneys general in taking legal action against the Food and Drug Administration (FDA) and the U.S. Department of Health and Human Services (HHS) for increasing the risk that women nationwide will contract the coronavirus disease 2019 (COVID-19) as they seek abortions in their state. In an amicus brief filed in support of the plaintiffs in American College of Obstetricians and Gynecologists et al. v. FDA et al. in the U.S. District Court for the District of Maryland, Attorney General James led the coalition in supporting the plaintiffs’ request for a preliminary injunction to halt an FDA requirement that forces women to appear in person in a clinical setting to receive a drug known as Mifepristone for an early abortion or for miscarriage care. The coalition argues that the drug should be readily accessible via telehealth, so as to not potentially expose women to COVID-19 by requiring unnecessary travel.

“For years, the Trump Administration has done everything in its power to control women’s bodies,” said Attorney General James. “As much of the country continues to see the spread of the coronavirus and many residents are asked to stay at home or reduce travel, the federal government should be doing everything in its power to ensure women can maintain control of their reproductive choices without endangering their health and safety. Control over one’s reproductive freedom should not be limited to those who are able to leave their homes as we battle the coronavirus. We are fighting the Trump Administration’s continued assault on women’s reproductive freedoms and will fight to ensure Mifepristone is accessible via telehealth so that no woman is forced to risk her health while exercising her constitutional right to access an abortion.”

Since the widespread onset of COVID-19 across the United States in March, nearly 1.9 million Americans have contracted the disease, resulting in more than 108,000 deaths, including more than 375,000 infections in New York and more than 24,000 deaths in the state. In response, legislators, officials, and agencies across the nation have been instituting various emergency measures to slow the spread of the virus by limiting face-to-face contact and reducing in-person social gatherings, such as by closing schools and requiring all nonessential employees to work from home, as limiting interpersonal contact is central to the ability to control the spread of the virus.

But the FDA’s current policy requiring patients to appear in person in a clinical setting to receive Mifepristone heightens the risk of contracting and transmitting COVID-19 for everyone involved — including patients and health care providers. Forcing women to travel at a time when many states and the federal government are urging people to stay home to curb the spread of COVID-19 is shortsighted — not only putting women and their close contacts across the country in harm’s way, but also the public health more generally. Further, this policy undermines different states’ ability to effectively manage the pandemic.

In the brief, Attorney General James and the coalition specifically argue that “many women will need to travel long distances in order to reach a clinic that dispenses” Mifepristone — sometimes up to 200 miles — “especially if they reside in rural and medically underserved locations.” Additionally, those women in more compact, urban cities may not have the option to practice social distancing outside the home, therefore increasing the likelihood of coming into contact with an individual who has contracted COVID-19. But “[b]y using measures like telehealth to reduce unnecessary person-to-person contacts, [states] can decrease their infection rate, as required to safely commence reopening even as the pandemic continues.” In fact, the coalition continues, “telehealth should be used wherever possible — even as phased reopening of the States occur[s] — because it ‘maximize[s] the number of capable health care workers’ providing necessary medical treatment, while protecting health care staff,” and “the counseling required prior to a medication abortion is routinely provided through telehealth in order to reduce in-clinic interactions.”

Even another division of HHS and one of the FDA’s sister agencies — the Centers for Disease Control and Prevention — has advocated for telehealth, stating, “[l]everaging telemedicine whenever possible is the best way to protect patients and staff from COVID-19.” 

The coalition goes on to highlight that 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 also suspended existing rules that prohibit telehealth in the absence of an existing patient-provider relationship so that patients can receive care from new providers.

The American College of Obstetricians and Gynecologists has likewise 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 because it “impedes the provision of” Mifepristone and has no “demonstrated or even reasonably likely advantage.” 

In March, 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 this Mifepristone requirement because it dictates and subsequently impedes women’s access to a medication abortion. The coalition stressed the states’ need to ensure that women 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. Since its approval, three-million women in the United States have used the medication, which entails women taking Mifepristone along with another drug to bring about an abortion. According to the FDA, this medication “has been increasingly used as its efficacy and safety have become well-established by both research and experience.” Women alternatively may undergo a procedural abortion that is performed by aspiration or by dilation and evacuation.

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 April, 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 women across the State of Tennessee could continue to access an abortion after executive orders in the state banned abortion, using COVID-19 as an excuse.

Also, in April, 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 for women across Alabama, after an executive order banned nearly all abortions in the state, using the coronavirus as an excuse for the ban.

Earlier, in April, 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 women’s 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 the state, using COVID-19 as the reasoning for the ban.

Additionally, in April, 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, 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 women across the State of Oklahoma and work to stop the state from banning almost all abortions in the state, using the COVID-19 public health crisis as an excuse.

Prior to that, in April, Attorney General James and a coalition of attorneys general filed an amicus brief in the U.S. Supreme Court — in Donald Trump et al. v. Pennsylvania — supporting a lawsuit defending the contraceptive coverage and counseling requirement mandated as part of the Affordable Care Act, which has benefited more than 62 million women across the country. 

Before that, in April, Attorney General James co-led a coalition of attorneys general in calling on the U.S. Department of Health and Human Services to delay implementation of a final rule that would make it more difficult for women in New York and across the nation to access abortion services under the Affordable Care Act, arguing that the rule jeopardizes health coverage of all consumers confused by its billing practice, as the nation battles COVID-19. The letter follows up on a lawsuit led by Attorney General James in January, and a motion for summary judgement, filed in late March, asking the federal courts to immediately rule on the lawsuit.

At the beginning of April, 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 the coronavirus as an excuse.

Also, in March — at the onset of the COVID-19 pandemic — 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.  

 Also, 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 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 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. Just this week, 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 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. In May 2020, Attorney General James and a coalition filed 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.

 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 the filing of this amicus brief is Maryland Attorney General Brian Frosh. The two are joined by the attorneys general of California, Colorado, Connecticut, Delaware, Hawai‘i, Illinois, Maine, 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. 

Lockwood Law

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