Amicus Brief Filed in Federal District Court Rejects Texas Law Banning Abortions After Six Weeks
NEW YORK – New York Attorney General Letitia James today continued her fight to safeguard the health care and reproductive rights of patients across New York and the rest of the nation. As part of a coalition of 24 attorneys general, Attorney General James today filed an amicus brief in support of the U.S. Department of Justice’s (DOJ) challenge to Texas’ new, unconstitutional six-week ban on abortions. The brief specifically supports DOJ’s motion for a preliminary injunction of the law, which went into effect earlier this month.
“While a handful of states have simply sought to take us backwards in time and do everything possible to undermine Roe v. Wade, we have fought these assaults over and over again, and won,” said Attorney General James. “To be clear, under Texas’ draconian law, most women seeking an abortion will not even know they are pregnant by the time the clock runs out. The law further promotes vigilantism by enticing bounty hunting against those helping women access constitutionally protected health care. While Texas and other conservative-led states lead a war on women and their reproductive rights, we will continue our fight to protect women’s health care, women’s bodies, and women’s choices, and we will do everything in our power to stop this twisted version of the Handmaid’s Tale from harming another woman.”
The coalition argues in the brief — filed today in the U.S. District Court for the Western District of Texas — that by banning nearly all pre-viability abortions within Texas’ borders, the law — Senate Bill 8 (SB8) — violates nearly 50 years of U.S. Supreme Court precedent affirming the constitutional right to terminate a pregnancy before viability. The brief further contends that the Texas legislature sought to circumvent prior Supreme Court rulings and to prevent judicial review of the law by delegating enforcement authority to private individuals instead of the government and, as such, SB8 is an “unprecedented attack on our constitutional order” and the rule of law.
The coalition contends that the clear purpose of SB8’s private enforcement scheme is to produce an “across-the-board ban on constitutionally protected activity,” and that the private enforcement mechanism does not shield Texas’ unconstitutional law from judicial review. The brief describes how Texas created a structure within its state court system that requires courts to provide monetary and injunctive relief to claimants who bring cases against doctors who provide abortions and those who “aid and abet” such constitutionally protected care. The coalition argues that the federal district court should not allow Texas to render the constitutionally-protected rights recognized in Roe v. Wade legally void through the law’s transparent scheme.
The brief describes how the law is already significantly impacting abortion provider clinics in Texas and beyond, including in amici states. Clinics in nearby states are already reporting a rise in calls from Texas patients seeking abortions, and, only one day after the law went into effect, all abortion clinics in New Mexico were reportedly booked for weeks. This rise in abortion caseloads in other states from Texas patients and the increase in needed travel for patients could result in many people — especially low-income individuals — being unable to receive the care they need. The law also threatens the many people who help patients in Texas obtain access to an abortion by creating a more than $10,000 potential liability for anyone who so much as gives a patient a ride to an abortion provider or otherwise “aids or abets” a now prohibited abortion. The amici states, the brief explains, are committed to shielding their residents and clinicians from these harms when they help a patient in Texas obtain constitutionally protected care.
Finally, the brief argues that it is essential for the federal district court to grant a preliminary injunction of the law to immediately stop the irreparable harm that SB8 is already inflicting on people in Texas and across the country, including New York and other amici states. Forcing a patient to carry an unwanted pregnancy to term, the brief argues, will lead to negative health and socioeconomic consequences, including placing people who are forced to carry a pregnancy to term at greater risk of life-threatening illnesses and harming their ability to maintain full-time employment.
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 filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in the case Planned Parenthood South Atlantic v. Wilson, where they urged the court to uphold a lower court’s ruling blocking South Carolina’s “fetal heartbeat” law that bans abortions once fetal cardiac activity is detected and jeopardize access to health care as a whole.
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 that recently-enacted abortion ban and other 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 via telehealth and to extend that injunction to cover miscarriage treatment, 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.
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 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. Following their district court loss, the Trump Administration appealed the decision. In July 2021, Attorney General James sent a letter to the Biden-Harris Administration’s HHS, voicing her support for a new, proposed rule that would protect abortion coverage for women nationwide and cancel out the 2019 Trump era rule.
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 filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.