Safeguarding Access to Contraceptive Coverage

NEW YORK – New York Attorney General Letitia James, along with a coalition of 21 additional attorneys general from around the nation, recently filed an amicus brief defending the rights to maintain full and equal access to birth control guaranteed under the Affordable Care Act (ACA) for tens of thousands of women nationwide. The brief was filed with the U.S. Court of Appeals for the Fifth Circuit in the case Richard W. DeOtte et al. v Alex M. Azar, in his official capacity as Secretary of Health and Human Services, et al.

“This is nothing more than another attempt to control women’s bodies, their choices, and their freedom,” said Attorney General James. “The ACA’s contraceptive mandate has helped women maintain autonomy over their own reproductive choices, and we refuse to go backwards and allow the federal government to undo all the progress that has been made. While the Trump Administration and the courts continue down the path to make it harder for women — especially those who cannot afford contraceptives — to maintain access, we will never stop fighting for women across the country.”

Under the Affordable Care Act and other federal regulations, employers that have a religious objection to birth control may file a simple, one-page form to opt out of providing contraceptive coverage for their employees and dependents. If an employee works for one of these companies, they and their dependents can maintain access to contraceptive coverage through their health insurers and third-party administrators. The ACA gives more than 55 million women in the United States access to birth control with no out-of-pocket costs.

In this case, the State of Nevada has sought to intervene and defend the contraceptive mandate against a challenge brought by employers who object to contraceptive coverage because the federal government has declined to defend the mandate and effectively agreed to an order from the court that permanently bars them from enforcing this critical part of President Obama’s landmark health care law. The coalition of attorneys general are today arguing that the district court erred in denying Nevada’s motion. The coalition is also arguing that the order enjoining enforcement of the contraceptive mandate should be reversed.

The brief notes that the Fifth Circuit and seven other U.S. Courts of Appeal have already rejected the plaintiffs’ argument that the mere act of opting out of providing contraceptive coverage substantially burdens their exercise of religion under the Religious Freedom Restoration Act.

The plaintiffs’ arguments are in line with those the Trump Administration currently makes to justify new regulations that authorize employers with a religious or moral objection to block their employees and their employees’ dependents from receiving insurance coverage for contraceptive care and services.

A nationwide injunction obtained by Pennsylvania and New Jersey in the Eastern District of Pennsylvania and affirmed by the U.S. Court of Appeals for the Third Circuit has stopped these regulations from going into effect while litigation is pending, and a second injunction obtained by New York, California, and a group of 12 other states in the Northern District of California and affirmed by the U.S. Court of Appeals for the Ninth Circuit also has blocked the regulations in those states.

This is just the latest action in a long list of measures Attorney General James has taken to protect women’s reproductive freedom. Earlier this month, 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.

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.

Earlier this week, the Fifth Circuit Court of Appeals struck down Mississippi’s law.

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 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.

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 in support of Nevada are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

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