WASHINGTON — Anti-abortion groups, attorneys general from 25 states and more than 140 members of Congress have signed on to dozens of briefs in the U.S. Supreme Court in the past two weeks urging the justices to restore the exploit and prescribing of the early abortion drug mifepristone to its pre-2016 status.
The friends of the court are submitting their briefs just weeks before the court is scheduled to hear oral arguments on March 26 in the case stemming from a lawsuit that sought to overturn the drug’s approval.
Alliance Defending Freedom, a legal organization working to oppose abortion, filed a lawsuit on behalf of the Hippocratic Medicine Alliance, the American College of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians, and the Christian Medical and Dentist Association.
The ADF’s latest letter on the matter argues that because some patients undergoing medical abortion — a two-drug regimen combining mifepristone with a second drug, misoprostol — will experience complications, doctors who oppose abortion will have to violate their religious beliefs to provide medical care to these women.
“It is easy to understand why doctors who consider abortion unacceptable are harmed when they have to perform a chemical abortion – even if the baby is already dead,” ADF wrote in a statement. 84-page summary.
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The U.S. Food and Drug Administration has said there is no obligation for doctors and other health care providers who conscientiously refuse to perform abortions to treat patients who have complications after medical abortions. But that is not enough, the ADF says.
“The FDA claims that it does nothing to compel Respondents’ doctors to perform procedures they find objectionable,” ADF wrote. “But this ignores the fact that the FDA clearly relies on doctors like Respondents to treat emergency and life-threatening complications of abortion medications … and that Respondents must act immediately when faced with such emergencies.”
The changes the FDA has made since 2016 to when and how mifepristone can be prescribed and distributed “create a significant risk that physicians will see more women with emergency complications after using abortion medications, which poses a range of specific harms,” the ADF wrote.
These changes include:
- Extending the maximum gestational age at which a patient can exploit mifepristone to 10 weeks (previously approved at seven weeks).
- Physicians with a license to prescribe the medication, such as physician assistants and nurse practitioners, will now be able to prescribe mifepristone, rather than just physicians.
- Patients no longer had to attend three doctor visits in person to complete the mediated abortion procedure.
- Doctors can now prescribe medications via telemedicine and have them delivered by post.
Previous judgment
All this would change if the Supreme Court decided I agree with the ruling of the 5th Circuit Court of Appealswhich stated in August 2023 that FDA prescribing guidelines should revert to what they were before the 2016 changes.
The federal government appealed that decision, leading to the current Supreme Court case, Food and Drug Administration v. Alliance for Hippocratic Medicine.
States Newsroom previously reported on briefs filed in delayed January by abortion rights advocates, major medical organizations, pharmaceutical groups and Democratic lawmakers in favor of access to mifepristone.
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The medical groups wrote that since mifepristone was approved in 2000, “hundreds of medical studies and a vast amount of data have supported its safety and effectiveness in dual-drug therapy.”
“The scientific evidence is overwhelming: serious adverse events occur in less than 0.32% of patients,” the medical organizations added. “The risk of death is almost nonexistent.”
In February, Democratic governors from 20 states, including Pennsylvania Gov. Josh Shapiro, announced a coalition called the Reproductive Freedom Alliance to protect and improve access to abortion and reproductive health care “in the face of an unprecedented attack from states hostile to abortion rights,” according to a joint statement.
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Members of Congress and state attorneys general file briefs
A total of 145 members of Congress from 36 states who opposed maintaining access to mifepristone at current levels filed their own motions 39-page digest In this case, the Supreme Court was asked to restrict access.
“Since 2016, the FDA has required adverse event reporting only for deaths caused by chemical abortifacient drugs; otherwise, reporting is voluntary,” the members of Congress wrote, arguing that reports are not required for injuries or disabilities. “This action was not only arbitrary and capricious, but also raised safety concerns for women seeking chemical abortifacient drugs.”
The FDA’s decisions in 2016 and 2021 to change mifepristone prescribing guidelines “exceeded the authority granted to it by Congress,” it said.
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 filed 28-page summary in this case, pushing for change.
State attorneys general say FDA’s decisions to change prescribing guidelines since 2016 “exceed constitutional bounds.”
“These actions test the separation of powers, undermine federalism, and make important decisions remote from the people,” they wrote. “This Court should therefore conduct a thorough review of these actions and deny the FDA’s motion to deference.”
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The attorneys general wrote that because some states have severely restricted or banned access to abortion or have introduced requirements for the exploit of mifepristone that go beyond what the FDA allows, the availability of the drug violates states’ rights.
“The FDA’s actions undermine these rights, undermine states’ efforts to enforce them, and thereby undermine the federalism that the Constitution holds to be essential,” 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 letter 32-page digest “have an exceptionally strong interest in the outcome of this case.”
They wrote that FDA decisions, particularly the one allowing the shipment of mifepristone, “encouraged and enabled private entities to circumvent state regulations.”
“Beginning in the summer of 2023, the organizations began shipping abortion products in large quantities to all 50 states in an attempt to circumvent state laws,” the three attorneys general wrote.
Students for Life of America, whose goal is to “abolish abortion and provide women and their children with political, legal, and social support,” wrote in its article: 32-page digest that the FDA “failed to consider the impact that Mifepristone may have on the environment, particularly on endangered species or listed habitats.”
They say the FDA should have consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service before approving the pharmaceutical product.
Students for Life asked the Supreme Court to uphold the ruling by U.S. District Court Judge Matthew Joseph Kacsmaryk for the Northern District of Texas, who a ban was issued which would result in mifepristone being withdrawn from the market.
The ban on access to the drug should remain in effect until “the FDA conducts appropriate consultations with the Services,” they wrote.
“The FDA only analyzed the environmental impact of packaging, manufacturing waste, and pharmaceutical waste, without examining the environmental impact of disposing of mifepristone itself,” Students for Life wrote. “Furthermore, the assessment underestimated the number of chemical abortions due to mifepristone, which are currently the most popular form of abortion.”
