Dozens of ‘friend of the court’ briefs backing abortion pill access arrive at Supreme Court

WASHINGTON — The U.S. Supreme Court has been inundated with dozens of organizations seeking to weigh in on the future of the abortion pill by filing “friend of the court” briefs.

The groups include governors, attorneys general, state lawmakers and members of Congress as well as medical organizations, civil rights groups and pharmaceutical companies — all of whom argue the justices’ ruling will have significant effects on American society and health care.

“Turning back the clock to reimpose unnecessary restrictions on mifepristone will exacerbate existing inequities in maternal health for women of color, low-income women, and those living in rural areas,” wrote a group of more than 16 medical organizations, including the American College of Obstetricians and Gynecologists and The American Medical Association.

“Restricting access to mifepristone will not only jeopardize health, but worsen racial and economic inequities and deprive women of the choices that are at the very core of individual autonomy and wellbeing,” the medical organizations added in their 45-page brief.

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.”

Arguments set for March 26

More than 35 “amicus curiae” or friend of the court briefs have been filed in the days since the Supreme Court scheduled oral arguments for March 26. While none of the briefs filed so far are from anti-abortion organizations, those documents are likely to be sent to the justices in the weeks ahead.

The case eliciting the interest centers around access to mifepristone, an FDA-approved pharmaceutical that’s part of a two-drug regimen used for both medication abortions and miscarriage care. The process is used in more than half of pregnancy terminations in the United States.

The drug is currently approved for use up to 10 weeks gestation and healthcare providers can prescribe it through telehealth. Patients have the option to then have the medication shipped to their home.

All that would change if a majority of the justices side with anti-abortion organizations, which want the conservative-leaning Supreme Court to overturn changes the FDA began making in 2016 regarding how the pharmaceutical can be prescribed and taken.

Reverting to instructions last used more than seven years ago would mean that:

• Mifepristone would be approved for up to seven weeks gestation, not the current 10-week ceiling.
• Only doctors would be able to prescribe it, not health care providers with the authority to prescribe medications, like physician’s assistants and nurse practitioners.
• Patients would need to attend three in-person doctor’s appointments to complete the two-drug regimen.
• The dosage of mifepristone would change along with when the second drug, misoprostol, is taken as well as the dosage of that medication.

Democratic governors speak out

Nearly two dozen Democratic governors, dubbing themselves the Reproductive Freedom Alliance, filed a 52-page brief that sought to reinforce the safety of medication abortion while arguing that it is “a critical component of the reproductive health care regime in states in which abortion is legal.”

“Physician shortages, insufficient resources, and rural communities without enough clinics to serve the local populations (known as maternal health deserts) all create enormous challenges for Governors when confronting one of their most important roles — protecting public health,” the governors wrote. “And that is particularly true with respect to reproductive healthcare, given the changing legal landscape over the past several years.”

The group included governors from Arizona, Colorado, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington state and Wisconsin.

Attorneys general from a similar coalition of states wrote their own 37-page brief to the Supreme Court, saying that changes the FDA has made to prescribing and dosage since 2016 “have greatly benefited their residents, the health care system, and the public.”

“Medication abortion promotes access to abortion as early as possible, when it is safest and least expensive, and has contributed to an increase in the proportion of pregnancy terminations taking place at less than six weeks gestation, when risks are lowest,” the attorneys general wrote. “Mifepristone is also critical to managing early pregnancy loss.”

State legislators voice opposition 

More than 600 state lawmakers wrote in a 74-page brief that the Supreme Court’s ruling in the Dobbs case, which overturned the constitutional right to abortion, sent decisions about abortion back to “the people and their elected representatives,” not the court.

Returning mifepristone use and dosage to what was used before 2016 “improperly undermines state legislatures’ ability to decide whether to expand or restrict abortion access, taking regulatory choices away from legislators and their constituents,” they wrote.

A group of seven former commissioners of the Food and Drug Administration noted in a 36-page brief that the case doesn’t actually focus on how the federal agency interpreted the law or the legal standard it used to approve mifepristone, or update prescribing guidelines.

“Instead, the dispute involves FDA’s evaluation of the scientific data submitted to support the approval of a new drug application,” they wrote.

The former commissioners raised concerns about the precedent it would set were the Supreme Court to allow judges to substitute their “own opinions about the scientific data for the expert judgments of FDA clinicians and scientists, and on that basis overturned FDA’s reasoned, evidence-based decisions.”

“The resulting uncertainty would threaten the incentives for drug companies to undertake the time-consuming and costly investment required to develop new drugs and ultimately hinder patients’ access to critical remedies that prevent suffering and save lives,” they added.

Racial disparities in maternal health care cited

The NAACP Legal Defense & Educational Fund, Inc. called on the Supreme Court to reject efforts to return the use of mifepristone to what was in place before 2016, saying that would “exacerbate the impact of inequities in access to health care.”

“When Black pregnant women who wish to terminate a pregnancy are unable to access abortion care, including via medication abortion, and remain pregnant, they are at greater risk for adverse health outcomes as demonstrated by racial disparities in maternal health care and the maternal mortality rate,” the NAACP wrote in its 29-page brief. “Restricting access to medication abortion exacerbates racial disparities in health and likely results in additional barriers to care that will be disproportionately borne by Black people.”

A group of more than 300 reproductive health researchers, many of whom work at universities throughout the country, filed their 68-page brief, saying that “vast scientific evidence” supports the changes made in 2016 and afterward.

“This Court should not allow the politics of abortion to obscure the clear, abundant, and plainly sufficient scientific record supporting FDA’s decision-making in this case,” the researchers wrote.

Religious groups say it’s ‘for the pregnant woman to decide’

A group of nearly 35 religious organizations filed their 32-page brief on the premise that many religions “view the decision to have an abortion as something for the pregnant woman to decide, based on her own moral values and religious faith.”

Those organizations include Catholics for Choice, Hindus for Human Rights, Interfaith Alliance, Jewish Democratic Council of America, Muslims for Progressive Values, Rabbinical Assembly, The Sikh Coalition and Unitarian Universalist Association.

“We understand that some physicians object to participating in abortions,” the religious groups wrote. “But, federal laws already provide protections to individuals that refuse, based on religious or moral beliefs, to participate in abortions.”

The religious organizations added that the decision to push the use and dosage of mifepristone back to what was in place before 2016 “would make it difficult or impossible for many women to access abortion care consistent with their moral values and the teachings of their religious faith, by restricting patient access to a safe medication that is used in most abortions in the United States today.”

“Moreover, the burden of these restrictions would fall most heavily on vulnerable women from marginalized communities — people that many religions view as particularly deserving of protection.”