Leading a coalition of 16 attorneys general from across the nation, Attorney General James submitted testimony into the congressional record, urging passage of the Women’s Health Protection Act (WHPA), which would protect a woman’s constitutional right to access abortion by prohibiting unnecessary restrictions — passed at the state level — that undermine the availability and safety of health care services.
“As states continue to pass constricting laws that seek to unconstitutionally restrict women’s reproductive rights, we are urging Congress to take federal action and codify every woman’s right to access an abortion into law,” said Attorney General James. “Roe v. Wade may have been fought nearly 50 years ago, but the war on women’s reproductive freedoms continues today. It’s time for our federal leaders to finally stand up for women’s health nationwide and take legislative action to prevent these unconstitutional infringements. This is about protecting women’s health, protecting their bodies, and protecting their choices.”
“The United States has never been closer to losing the fundamental right to access abortion than right now,” said Nancy Northup, president and CEO, Center for Reproductive Rights. “State legislatures have passed so many restrictions that abortion is already out of reach for many people. The WHPA is the answer to these politically motivated, unconstitutional restrictions. We are so grateful to New York Attorney General Letitia James and to the many other state attorneys general who have joined her in calling for the passage of this crucial legislation. The time for Congress to act is now.”
Attorney General James leads the coalition in arguing that while legislators in many states may claim that the laws they are enacting are being passed to promote women’s health, the reality is that these laws are simply designed to restrict access to abortion services and, most often, lead to worse health outcomes for women. These include laws requiring physicians to have admitting privileges at hospitals and setting arbitrary requirements at women’s health clinics for the size of procedure rooms and corridors. The proliferation of these restrictions has negatively impacted women’s health — disproportionately affecting low-income communities and communities of color, while simultaneously creating a lack of national consistency that strains states’ health care systems. Most importantly, any law that imposes an undue burden on a woman’s right to choose to terminate a pregnancy is unconstitutional.
The Women’s Health Protection Act targets these onerous state laws that have been adopted in a concerted strategy to restrict access to abortion across the nation. In Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court ruled that a Texas law that required abortion providers to maintain admitting privileges at a local hospital failed to advance women’s health and posed an undue burden on women seeking an abortion. Additionally, last year, Attorney General James led a coalition of 22 attorneys general in helping win another victory in June Medical Services v. Gee, in which the Supreme Court held that a similar law in Louisiana was unconstitutional.
As more states try to pass new laws that restrict women’s reproductive freedoms with medically unnecessary restrictions, new court challenges continue to be filed — a process that can often take years. That’s why Attorney General James and the coalition are today urging Congress to pass the WHPA to ensure that such restrictions are not imposed in the first place.
The consequences of these laws are already evident across the country. Research from 2017 found that 38 percent of women between the ages of 15 and 44 live in counties without a single abortion clinic. Additionally, as of June 2019, six states have only one abortion clinic remaining. As providers close due to the impact of medically unnecessary restrictions, women are likely to be forced to travel farther and make greater sacrifices to obtain access to care. Unfortunately, however, these burdens often fall disproportionately on lower-income women who cannot afford to travel, take time off from work, or find childcare while they visit their nearest provider.
The coalition goes on to assert that laws aimed specifically at restricting abortion providers have proved, time and time again, to lead to worse health outcomes for women, including:
- Increased maternal mortality rates,
- Delayed abortions, as well as increased health risks and costs for women who find themselves too far from an abortion provider,
- The undertaking of dangerous “black market” or self-induced abortions by some women, and
- A four-times higher risk of developing potentially life-threatening health conditions for women who are forced to carry a pregnancy to term, as well as a substantially greater likelihood of experiencing physical violence from abusive partners or family members.
The widely known negative effects of laws targeting abortion providers undermines any argument that such laws are intended to promote women’s health.
The coalition finally argues that without the WHPA, a lack of consistency in access to abortion services will lead to unnecessary strain on the states’ health care systems. Many women will cross state lines, if they have the means to do so, when abortions are unavailable in the states where they live. In the wake of recent abortion restrictions, some states have experienced a substantial influx of out-of-state patients seeking abortions as a result of reduced access in their home states, as has happened in the past. In fact, in the nearly three years between New York state’s liberalization of its abortion laws in 1970 and 1973 — when the Supreme Court in Roe v. Wade ruled that the right to choose was constitutionally protected — close to 350,000 women came to New York from other states where abortions were entirely or largely unavailable. Medically unnecessary restrictions targeting abortion providers create a disservice to women’s health and safety and pose challenges for states that aim to provide a full range of reproductive health services.
Today’s action is just the latest in a long list of measures Attorney General James has taken to protect patients’ reproductive freedom since taking office. Earlier this month, 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 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 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.
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.
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.
As mentioned above, 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 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 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 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.
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 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, and 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 Administration to ask the Supreme Court to dismiss both cases, while the Biden 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. That same day, Attorney General James co-led a coalition of 23 attorneys general in sending a comment letter to the U.S. Department of Health and Human Services (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 this testimony to Congress are the attorneys general of California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Nevada, New Mexico, Oregon, Vermont, Virginia, Washington, and the District of Columbia.