Attorney General James Continues to Take on Trump Administration’s Anti-Abortion Rule as Coronavirus Pandemic Rages On

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From the office of New York Attorney General Letitia James:

New Trump Administration Rule Threatens to Strip Health
Coverage from Women During National Pandemic

AG James Fights to Stop Attack on Reproductive Health Care That Would
Raise Abortion Costs and Place Onerous Requirements on Women

NEW YORK – New York Attorney General Letitia James today continued her leadership in the national fight to ensure women’s reproductive health care is not stifled or infringed upon in any way during the coronavirus disease 2019 (COVID-2019) public health crisis. Attorney General James co-led a multistate coalition of nine attorneys general in asking the U.S. Department of Health and Human Services (HHS) to withdraw a new interim final rule or delay implementation of it as the nation continues to battle COVID-19. In response to the pandemic, the interim rule only delays for 60 days a previously-implemented HHS rule that threatens to potentially kick millions of women across New York and the rest of the nation off their health plans if they fail to comply with a technical billing issue related to abortion coverage. The coalition argues that the final rule is not only unlawful, but that it would harm states and insurers, as well as consumers seeking reliable health coverage during the COVID-19 pandemic. Additionally, the coalition highlights that a 60-day delay is not a sufficient remedy to the problems posed by the final rule.

“As the number of confirmed coronavirus infections continue to rise exponentially across the nation, it is unconscionable that President Trump and his administration continue to move forward with plans that risk stripping women of their health coverage at this time — something that endangers us all,” Attorney General James said. “Instead of repeatedly focusing on cutting off women’s access to reproductive health care, the Trump Administration should be expanding health coverage for all Americans, so that no one is left without the coverage they need as we continue to battle COVID-19. But the origin of this rule is no doubt rooted in the president’s anti-choice ideology that aims to take us backwards almost half a century, which is why our coalition will never stop fighting against this burdensome and controlling regulation that strips women of their constitutional right to an abortion.”

Issued by HHS in December 2019, the final rule reinterprets Section 1303 of the Patient Protection and Affordable Care Act (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 collect separate monthly payments for abortion services to all consumers. One bill would be for the premium amount attributable to abortion coverage (and would need to be at least one dollar) and a second bill would compromise the premium amount attributable to the remaining covered services, 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 lose all health coverage on the exchange. HHS itself has conceded that requiring separate bills and separate payments will inevitably lead to confusion, putting more than 160,000 New Yorkers who have 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. Additionally, the new rule places unreasonable burdens on health insurers by requiring them to make onerous administrative changes in the middle of the plan year, instead of at the end of the plan year — when all other benefit and rate changes are made. 

In January, Attorney General James and the coalition filed a multistate lawsuit arguing 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. In late March, the coalition filed a motion for summary judgment in the lawsuit, calling for the courts to immediately vacate the rule because it violates federal law and is inconsistent with the Affordable Care Act. And in early April, the coalition sent a separate letter to HHS arguing against final implementation of the rule, as the nation was first responding to the COVID-19 public health crisis that required every resource of the federal government to be focused on the pandemic. Following the onset of COVID-19, HHS issued the interim final rule that is the focus of today’s letter — delaying enforcement of the separate abortion billing rule by a mere 60 days — purportedly to allow insurers additional time to address immediate challenges posed by the pandemic.

In today’s comment letter, the coalition argues that the interim final rule:

  • Forces states and insurers to make onerous changes in the middle of the plan year, because the 60-day delay is insufficient;
  • Burdens states, state agencies, and insurers, and hampers their efforts to respond to the COVID-19 pandemic; and
  • Endangers the gains recently made through several exchanges’ special enrollment periods.

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. Last month, Attorney General James led a coalition in filing an amicus brief in the U.S. District Court for the District of Maryland — supporting the plaintiffs in an amicus brief filed in support of the plaintiffs in American College of Obstetricians and Gynecologists et al. v. FDA et al., asking the court to halt the Trump Administration from continuing to institute a requirement that forces women to appear in person in a clinical setting to receive the drug Mifepristone for an early abortion or for miscarriage care.

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 Arkansas, 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 Oklahoma, 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. 

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.

In late March, 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 a specific designation, which dictates and subsequently impedes women’s access to the medical-abortion prescription drug known as Mifepristone. Attorney General James 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.

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 briefin 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, challenging a Louisiana law that requires abortion providers to maintain admitting privileges at a local hospital. Last month, Attorney General James helped score a major victory at the U.S. Supreme Court that overturned the Louisiana law and that will protect the ability of women across the nation to maintain access to safe, legal abortions, as is their constitutional right.

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 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 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 sending today’s comment letter to HHS are the attorneys general of California, Colorado, Maine, Maryland, Oregon, Vermont, Washington, and the District of Columbia. 

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