Anti-abortion groups, attorneys general from 25 states and more than 140 members of Congress have signed on to dozens of briefs to the U.S. Supreme Court during the past two weeks, encouraging the justices to revert use and prescribing of the medication abortion pill mifepristone to what was in place prior to 2016.
The “friend of the court” briefs come just weeks before the court is scheduled to hear oral arguments on March 26 in a case that stems from a lawsuit that sought to overturn approval of the pharmaceutical.
Alliance Defending Freedom, an anti-abortion legal organization, filed the lawsuit on behalf of the Alliance for Hippocratic Medicine, American Association of Pro-Life Obstetricians & Gynecologists, American College of Pediatricians and Christian Medical & Dental Associations.
ADF’s latest brief in the case argues that because some patients who use medication abortion — a two-drug regimen that combines mifepristone with a second pharmaceutical, misoprostol — will have complications, anti-abortion doctors will have to violate their religious beliefs to provide medical care to those women.
“It’s not hard to see why doctors who consider abortion objectionable are harmed when they must complete a chemical abortion—even if the child is no longer alive,” ADF wrote in the 84-page brief.
The U.S. Food and Drug Administration has said that nothing requires doctors and other health care providers with conscientious objection to abortion to treat patients facing complications from medication abortion, but that isn’t sufficient, ADF said.
“FDA insists that nothing forces Respondent doctors to perform the procedures they deem objectionable,” ADF wrote. “But this ignores that FDA expressly relies on doctors like Respondents to treat emergent and life-threatening complications from abortion drugs … and that Respondents facing these emergency situations must act immediately.”
Changes the FDA made since 2016 to when and how mifepristone can be prescribed and distributed “create a substantial risk that Respondent doctors will see more women suffering emergency complications from abortion drugs, which threaten to inflict several concrete harms,” ADF wrote.
Those changes include:
- Extension of the maximum gestational age a patient can use mifepristone to 10 weeks, up from the prior approval of seven weeks.
- Health care providers qualified to prescribe medications, like physician’s assistants and nurse practitioners, can now prescribe mifepristone, instead of only doctors.
- Patients no longer needed to attend three, in-person doctor’s office appointments to complete a mediation abortion regimen.
- Providers can now prescribe the medication via telehealth and have it delivered through the mail.
Earlier ruling
All of that would change if the Supreme Court decides to agree with a ruling from the 5th Circuit Court of Appeals, which said in August 2023 that the FDA’s prescribing guidelines should go back to what was in place before the changes began in 2016.
The federal government appealed that decision, leading to the current case before the Supreme Court, Food and Drug Administration v. Alliance for Hippocratic Medicine.
States Newsroom earlier reported on briefs submitted in late January by abortion rights supporters, major medical organizations, pharmaceutical groups and Democratic lawmakers supporting access to mifepristone.
The medical groups wrote that since mifepristone was approved in 2000, “hundreds of medical studies and vast amounts of data have confirmed its safety and efficacy as part of this two-drug regimen.”
“The scientific evidence is overwhelming: major adverse events occur in less than 0.32% of patients,” the medical organizations added. “The risk of death is almost non-existent.”
Members of Congress, state AGs file briefs
A total of 145 members of Congress from 36 states, who opposed access to mifepristone remaining as it is today, submitted their own 39-page brief in the case, calling on the Supreme Court to limit access.
“Since 2016, the FDA has only required adverse events reporting for deaths resulting from chemical abortion drugs; reporting is otherwise voluntary,” the members of Congress wrote, making the argument that reports are not required for injuries or impairment. “This action was not only arbitrary and capricious, but it also raised safety concerns for women seeking chemical abortion drugs.”
The FDA’s decisions in 2016 and 2021 to change prescribing guidelines for mifepristone, they wrote, “exceeded its congressionally authorized power.”
Attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming submitted a 28-page brief in the case, pressing for changes.
The state attorneys general argue that the FDA’s decisions to change prescribing guidelines since 2016 “push constitutional bounds.”
“Those actions test the separation of powers, sap federalism, and take important decisions from the people,” they wrote. “This Court should therefore exercise searching review of those actions and reject the FDA’s plea for deference.”
The attorneys general wrote that because some states have severely restricted or banned abortion access or implemented requirements for mifepristone use in addition to what the FDA allows, the availability of the pharmaceutical erodes states’ rights.
“The FDA’s actions undermine these laws, undercut States’ efforts to enforce them, and thus erode the federalism the Constitution deems vital,” the attorneys general wrote. “Given these harms to federalism, this Court should view the FDA’s actions with skepticism.”
More arguments
Attorneys general from Idaho, Kansas and Missouri wrote in a separate 32-page brief they “have an exceptionally strong interest in the outcome of this case.”
They wrote the FDA’s decisions, especially allowing the mailing of mifepristone, have “encouraged and enabled private parties to evade the States’ laws.”
“Beginning in summer 2023, organizations started shipping abortion drugs into all 50 States in large quantities in an attempt to evade state laws,” the three attorneys general wrote.
Students for Life of America — an organization that aims “to abolish abortion and provide policy, legal, and community support for women and their children” — wrote in its 32-page brief that the FDA has “failed to consider the impact Mifepristone could have on the environment, specifically on endangered species or listed habitats.”
Before the FDA approved the pharmaceutical, they claim, it should have consulted with the United States Fish and Wildlife Service as well as the National Marine Fisheries Service.
Students for Life called on the Supreme Court to uphold a ruling from U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk, who issued a stay that would have removed mifepristone from the market.
That ban on access to the drug should remain in place until “the FDA conducts the proper consultation with the Services,” they wrote.
“The FDA reviewed only the impact that packaging, production waste, and pharmaceutical waste would have on the environment, failing to examine the impact the excretion of Mifepristone itself would have on the environment,” Students for Life wrote. “Further, the assessment underestimated the number of chemical abortions due to Mifepristone, which are today the most popular form of abortion.”
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Written by Jennifer Shutt. Cross-posted from the Kentucky Lantern.
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