ACLJ Files Trio of Amicus Briefs in Supreme Court Abortion Pill Case
Another cataclysmic battle over abortion is pending at the U.S. Supreme Court, and the ACLJ has filed three separate friend-of-the-court briefs intended to educate the Court and to respond to the falsehoods and omissions of abortion advocates.
The case is now captioned Food and Drug Administration v. Alliance for Hippocratic Medicine (FDA v. AHM), consolidated with Danco Laboratories v. Alliance for Hippocratic Medicine (Danco v. AHM). Danco manufactures the mifepristone abortion pill Mifeprex, and the FDA is the federal government agency that initially approved – and subsequently expanded the availability of – mifepristone.
The history of the case is complex and addressed in previous ACLJ blogs here and here. In brief, AHM sued in federal court, challenging (1) FDA approval of the abortion pill and (2) FDA relaxation of restrictions (called REMS) on abortion pill dispensing. Danco intervened to defend its business, as the only product Danco makes is the abortion pill Mifeprex. The federal district court issued a preliminary ruling that halted both the approval of mifepristone and the loosening of the REMS. FDA and Danco appealed and sought emergency relief from the interim order, ultimately winning a complete stay of the district court order from the Supreme Court. (The ACLJ filed amicus briefs in the district court, in the stay proceedings in the court of appeals, and in the stay proceedings in the Supreme Court.)
The case then proceeded as an appeal in the U.S. Court of Appeals for the Fifth Circuit (where the ACLJ filed a fourth amicus brief in the case). The Fifth Circuit issued its ruling on Aug. 16, 2023. The appeals court vacated (erased) the district court ruling against the FDA’s approval of the abortion pill but affirmed the district court order against lifting the REMS. That meant mifepristone would remain available but subject to the FDA regulations that had been in place before the FDA began relaxing them in 2016. However, the Fifth Circuit’s ruling remained on hold pending Supreme Court review. FDA and Danco then sought Supreme Court review, which the high Court granted on Dec. 13, 2023.
The case is a very big deal for abortion providers and their supporters, as abortion pills now represent the most common method of abortion in the United States. Consequently, the abortion side filed 36 amicus briefs in support of the FDA and Danco, from groups including the ACLU, the American College of Obstetricians and Gynecologists, Planned Parenthood Federation of America, the AFSCME and National Education Association unions, Americans United for Separation of Church and State, People for the American Way, the Guttmacher Institute, Lambda Legal Defense and Education Fund, the National Abortion Federation, the Transgender Legal Defense and Education Fund, YWCA USA, the NAACP Legal Defense and Educational Fund, the Freedom From Religion Foundation, the American Psychological Association, and various pro-abortion officials, to name just a few.
Fortunately, the pro-life side is responding in force, with 38 amicus briefs filed, including three that the ACLJ submitted on behalf of itself and various other groups. Here is a summary of our three filings:
The first ACLJ amicus brief, filed on behalf of the ACLJ itself, argues that the mailing of abortion pills violates a federal law that makes it a crime to mail any “article or thing designed, adapted, or intended for producing abortion” or any “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The Biden Administration’s Department of Justice, through its Office of Legal Counsel (OLC), had issued an opinion in December 2022 seeking essentially to nullify that federal criminal law, a law that is part of what is commonly called the Comstock Act. We refuted the OLC arguments in detail in a previous briefing in this case, and the new ACLJ amicus brief hammers the same points.
We next filed an amicus brief on behalf of Operation Rescue and West Virginians for Life. That brief focused on the harms abortion pills pose to women. First, the OR/WVFL amicus points out an obvious but too often overlooked point:
Abortion pills by their very design cause an adverse event: miscarriage. Pregnancy loss is a dreaded complication of certain medications. Consequently, medical authorities take efforts to warn pregnant women which drugs to avoid during pregnancy. . . . The whole point of abortion pills, however, is to cause that adverse event. . . . It is therefore flatly misleading to claim that, of the women who take abortion pills, “fewer than one-tenth of one percent experienced any adverse event.” Danco Pet. Br. 10. To the contrary, every single one of those women experience an adverse event: pregnancy loss.
Second, the OR/WVFL amicus rebuts the fallacious claim that abortion is safer than childbirth. The ACLJ has tackled this pernicious falsehood in great detail previously, and the new brief repeats and summarizes the key points, concluding as follows:
In short, the claim that abortion is 14 times safer (or, indeed, safer at all) than continuing pregnancy is embarrassingly unsupported and inaccurate. No serious advocate should make that assertion.
Third, the OR/WVFL amicus points out the many ways in which abortion “is frequently used as a tool by nefarious actors to control and harm women.” The brief highlights the use of abortion by traffickers, pimps, sexual predators, domestic abusers, and irresponsible males, pointing out that ready access to abortion pills makes such exploitation that much easier for bad actors since they do not have to drag the woman to an abortion facility. The brief also flags the use of abortion by employers who prioritize worker availability over the woman and her prenatal child and by eugenicists and population controllers to target “unwanted” segments of the population.
The third and final brief that ACLJ attorneys filed is an amicus brief on behalf of the Elliot Institute, Rachel’s Vineyard, and Entering Canaan Ministry. This brief presents an extensively sourced (100 footnotes!) examination of flaws in the FDA’s process for approving and expanding access to mifepristone. The brief underscores the FDA’s neglect of the mental and physical harms of abortion (including abortion pills) to women. The brief specifically dissects the many flaws in the so-called Turnaway Study, “a project of the highly partisan population control group Advancing New Standards in Reproductive Health (‘ANSIRH’).” (As if to prove the point, ANSIRH signed onto the amicus brief of “237 Reproductive Health, Rights, and Justice Organizations” supporting the FDA and Danco in this case.) Abortion apologists frequently invoke the Turnaway Study, despite its many flaws, for the proposition that denying abortion to women who seek it causes harm to those women. But as the Elliot Institute et al. brief points out:
A more careful reading of the cited Turnaway Study reveals that more anxiety and lower life satisfaction scores were limited only to women still seeking abortions and only one week after being turned away for being over the gestational limit. The women who went on to carry to term did not report any negative mental health effects, neither one week later or over the five years investigated. Instead, “women who were denied [abortions] were more likely to feel happiness about the pregnancy than women who received an abortion.”
The study’s lead scientist, Diana Greene Foster, even acknowledged, as the brief quotes her:
I expected that raising a child one wasn’t planning to have might be associated with depression or anxiety. But this is not what we found over the long run. Carrying an unwanted pregnancy to term was not associated with mental health harm. Women are resilient to the experience of giving birth following an unwanted pregnancy, at least in terms of their mental health.
The Supreme Court Justices rely upon attorney advocates to identify the facts and arguments needed to reach the best outcome in the cases before them. With these three amicus briefs, the ACLJ and its amicus clients offer the Court important information about the law and the science regarding the mifepristone abortion pill. We hope and pray the Court will find our submissions useful!
The case of FDA v. AHM is set for oral argument on March 26, 2024, in the Supreme Court.