Attorney General James Leads Coalition Seeking Supreme Court Review of Trump Administration’s Title X Family Planning Rule
AG James Continues Leadership in Fight to Protect Women’s Access to Reproductive Health Care
NEW YORK — New York Attorney General Letitia James today announced she has led a coalition of 22 attorneys general from around the nation in filing a petition asking the U.S. Supreme Court to review a circuit court decision upholding the Trump Administration’s Title X family planning rule, also known as the “gag rule.” The rule dismantles the nation’s family planning program by reducing access to critical reproductive health care services, including birth control and referrals for abortions.
“Since day one, the Trump Administration has done everything in its power to deny women access to reproductive health coverage,” said Attorney General James. “By removing so many of the vital and essential services funded by Title X, President Trump and his administration are essentially holding women’s reproductive freedoms captive. These rules are baseless, dangerous, and will prevent millions of women from accessing quality, safe reproductive health care, which is why we are asking the Supreme Court to intervene and protect women’s reproductive rights.”
In March 2019, the Trump Administration implemented its gag rule, which places an unlawful and unethical restriction on the ability of health care providers at clinics that receive Title X funds 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 requires such clinics to physically segregate abortion services and the provision of referrals for abortion from all Title X funded services — a requirement that is so expensive and so difficult to accomplish that it is driving many providers out of the program and could possibly drive them out of business.
The Title X family planning program is instrumental in the delivery of preventive and reproductive health care to low-income and underserved women and families. The 2019 rule challenged in this case imposed major changes on the Title X program, including:
- Limiting the information that can be shared with a patient at a Title X clinic;
- Prohibiting referrals for abortion, even when a patient specifically requests one;
- Mandating prenatal care for all pregnant women, even if this care is not requested; and
- Requiring physical separation of clinics for Title X funded services from abortion care.
Before 2019, the Title X program funded a wide array of critical public health services, including family planning counseling, access to FDA-approved contraceptive methods, pelvic exams, and crucial screenings for high blood pressure, anemia, diabetes, sexually transmitted diseases and infections, and cervical and breast cancer. But, the Trump Administration’s Title X rule has severely reduced and in some cases caused a total loss of access to many of the services provided by Title X nationwide.
Currently, in 17 states, 50 percent or more of Title X grantees have withdrawn from the program, and several states no longer have any Title X providers. New providers have not filled the gap caused by the withdrawals because these providers don’t provide family planning counseling or birth control. As a result, states have faced increased burdens to meet residents’ needs for essential health care and women across New York and the rest of the nation have lost access to essential reproductive health services.
Joining Attorney General James and the coalition of attorneys general in seeking review of the U.S. Court of Appeals for the Ninth Circuit’s decision to uphold the Trump Administration’s Title X rule are the American Medical Association, Essential Access Health, the National Family Planning & Reproductive Health Association, the Oregon Medical Association, and Planned Parenthood Federation of America. These organizations all filed separate, similar lawsuits that were decided together with the states’ lawsuit in the Ninth Circuit.
In May 2020, Attorney General James and a coalition of attorneys general filed an amicus brief in a similar case brought by the city of Baltimore in the U.S. Court of Appeals for the Fourth Circuit. That court struck down the rule, in direct conflict with the Ninth Circuit decision challenged here.
This petition 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 of attorneys general in filing an amicus brief in FDA et al. v. American College of Obstetricians and Gynecologists et al. in the U.S. Supreme Court, where she encouraged the Supreme Court to reject a request from the Trump Administration to halt a preliminary injunction issued by a district court in July and thereby reinstate 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. The coalition has twice before successfully argued — in the U.S. District Court for the District for Maryland in June and the U.S. Court of Appeals for the Fourth Circuit in August — that the drug should be readily accessible via telehealth and mail delivery, so as to not potentially expose women to COVID-19 by requiring unnecessary travel. These three amicus briefs followed up on a letter Attorney General James sent, in late March, 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 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.
In July, Attorney General James scored a major nationwide victory for women’s reproductive freedoms after a federal court threw out a Trump Administration rule that would have made it more difficult for women in New York and across the nation to access abortion services under the Affordable Care Act (ACA). In January, Attorney General James co-led a coalition of attorneys general in filing a lawsuit against the U.S. Department of Health and Human Services (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 late March that led to this victory. In addition to the litigating this matter, Attorney General James also opposed this rule by sending a letter to HHS, in April, 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, after an interim rule did not delay the rule long enough.
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 procedural abortions, 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 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, 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 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.
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.
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 required abortion providers to maintain admitting privileges at a local hospital. This past June, 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.
Joining Attorney General James in filing the petition to the Supreme Court are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia.
This matter was handled by Assistant Solicitor General Laura Etlinger, Senior Assistant Solicitor General Judith N. Vale, Deputy Solicitor General Anisha S. Dasgupta, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions.