Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. Alliance for Hippocratic Medicine, et al.
Supreme Court briefOct 12, 2023
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Nos. 23-235, 23-236
IN THE
Supreme Court of the United States
d
NO . 23-235
FOOD AND DRUG ADMINISTRATION , ET AL .,
—v.—
Petitioners,
ALLIANCE FOR HIPPOCRATIC MEDICINE , ET AL .,
Respondents.
(Caption continued on inside cover)
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF OF AMICI CURIAE RELIGIOUS COALITION FOR
REPRODUCTIVE CHOICE, INTERFAITH ALLIANCE,
CATHOLICS FOR CHOICE, NATIONAL COUNCIL
OF JEWISH WOMEN, UNITARIAN UNIVERSALIST
ASSOCIATION, MUSLIMS FOR PROGRESSIVE VALUES,
HINDUS FOR HUMAN RIGHTS, AND 16 OTHER FAITHBASED ORGANIZATIONS, IN SUPPORT OF PETITIONERS
EUGENE M. GELERNTER
Counsel of Record
JOLIE HUANG
NICOLE SCULLY
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, New York 10036
(212) 336-2000
emgelernter@pbwt.com
Attorneys for Amici Curiae
No. 23-236
DANCO LABORATORIES, L.L.C.,
Petitioner,
—v.—
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT ............................................................... 4
I.
RELIGIOUS TRADITIONS AFFIRM WOMEN’S
MORAL RIGHT TO DECIDE WHETHER AND
UNDER WHAT CIRCUMSTANCES TO SEEK AN
ABORTION. ......................................................... 4
A.
Many Religious Traditions View
Abortion as a Morally Acceptable
Choice. ................................................... 4
B.
Many Religious Traditions Recognize
the Importance of Medication
Abortion. .............................................. 12
II.
THE TELEMEDICINE STAY WOULD IMPAIR THE
ABILITY OF MANY WOMEN TO ACCESS
ABORTION CONSISTENT WITH THE TEACHINGS
OF THEIR RELIGIOUS FAITH. ........................... 14
III.
THE TELEMEDICINE STAY WOULD
DISPROPORTIONATELY HARM WOMEN FROM
MARGINALIZED GROUPS. ................................. 17
CONCLUSION ......................................................... 21
ii
TABLE OF AUTHORITIES
Page(s)
Other Authorities
144 Cong. Rec. S10491 (daily ed. Sept.
17, 1998).................................................................. 9
A Shin Buddhist Stance on Abortion, 6
BUDDHIST PEACE FELLOWSHIP
NEWSLETTER 3 (July 1984) ................................... 10
Abigail R.A. Aiken et al., Safety and
effectiveness of self-managed
medication abortion provided using
online telemedicine in the United
States: A population based study, 10
LANCET REG’L HEALTH AM. 100200
(2022) .................................................................... 16
Mohammad A. Albar, Induced Abortion
From An Islamic Perspective: Is It
Criminal Or Just Elective, 8 J. FAM.
CMTY. MED. 25 (2001) ........................................... 10
AM. BAPTIST ASS’N, Resolution
Concerning Abortion and Ministry in
the Local Church (1987) ......................................... 7
AM. COLL. OF OBSTETRICIANS AND
GYNECOLOGISTS, Improving Access to
Mifepristone for Reproductive Health
Indications, Washington, DC: ACOG
(2018) .................................................................... 15
iii
BELDEN RUSSONELLO STRATEGISTS, 2016
Survey of Catholic Likely Voters (Oct.
2016)........................................................................ 8
CATHOLICS FOR CHOICE, Advocate’s Bible:
A Guide for Pro-Choice Catholics and
Co-Conspirators (June 2022) ............................... 20
CATHOLICS FOR CHOICE, Reproductive
Equity .................................................................... 20
CATHOLICS FOR CHOICE, Social Justice ..................... 20
CATHOLICS FOR CHOICE,
Catholics for Choice Responds to
Federal Appeals Court Decision on
Mifepristone (Aug. 16, 2023) ................................ 13
CONN. CONFERENCE OF THE UNITED
CHURCH OF CHRIST, Resolution:
Freedom of Choice Concerning
Abortion (1971) ..................................................... 19
EPISCOPAL CHURCH, Standing
Commission on Human Affairs and
Health, Resolution #A087 (1988) ....................... 5, 6
EVANGELICAL LUTHERAN CHURCH IN AM.,
A Social Statement on: Abortion
(1991) ................................................................ 7, 11
FDA CTR. FOR DRUG EVALUATION &
RSCH., Medical Review, Application
No. 020687Orig1s020 (Mar. 29, 2016) ................... 2
iv
FDA, Mifeprex (mifepristone)
Information: Postmarket Drug Safety
Information for Patients and
Providers (Mar. 23, 2023) ..................................... 16
FDA, Mifepristone U.S. Post-Marketing
Adverse Events Summary through
12/31/2018 ............................................................ 2
Anna E. Fiastro et al., Telehealth vs InClinic Medication Abortion Services,
6 JAMA NETW OPEN 9 (2023)............................... 18
Freedom of Choice Act of 1989: Hearing
on S. 1912 Before the S. Comm. on
Labor and Human Resources, 101st
Cong. 237 (1990) ................................................. 6, 7
D. Grossman et al., Induced Abortion
Provision Among A National Sample
of Obstetrician-Gynecologists, 133
OBSTET GYNECOL 3 (2019) .................................... 15
GUTTMACHER INST., Fact Sheet: Induced
Abortion in the United States (Sept.
2019)........................................................................ 9
Elizabeth B. Harned & Liza Fuentes,
Abortion Out of Reach: The
Exacerbation of Wealth Disparities
After Dobbs v. Jackson Women's
Health Organization, AM. BAR ASS’N
(Jan. 6, 2023) ........................................................ 17
v
Hindus in America Speak Out On
Abortion Issues, HINDUISM TODAY
(Sept. 1985) ........................................................... 10
Jenna Jerman et al., Characteristics of
U.S. Abortion Patients in 2014 and
Changes Since 2008, GUTTMACHER
INST. (May 2016)..................................................... 9
Dana M. Johnson et al., Safety and
effectiveness of self-managed abortion
using misoprostol alone acquired
from an online telemedicine service in
the United States, 55 PERSPECT SEX
REPROD HEALTH 1 (2023)................................ 16–17
R.K. Jones & J. Jerman, Population
Group Abortion Rates and Lifetime
Incidence of Abortion: United States,
2008–2014, 9 AM. J. OF PUB. HEALTH
112 (2022) ............................................................. 18
Rachel K. Jones et al., Medication
Abortion Now Accounts for More
Than Half of All US Abortions,
GUTTMACHER INST. (Feb 24, 2022,
updated Dec. 1, 2022) ............................................. 2
KFF, Reported Legal Abortions by Race
of Women Who Obtained Abortion by
the State of Occurrence (2020).............................. 18
Julia E. Kohn et al., Medication
Abortion Provided Through
Telemedicine in Four U.S. States, 134
OBSTET GYNECOL 2 (2019) ...................................... 3
vi
F.A. Kumsa, R. Prasad & A. ShabanNejad, Medication abortion via
digital health in the United States: a
systematic scoping review, NPJ DIGIT.
MED. 6 (2023) ........................................................ 14
Letter of Jewish Clergy Leaders to the
Senate Committee on the Judiciary
(July 16, 2021) ...................................................... 10
Jason M. Lindon et al., How Far Is Too
Far? New Evidence on Abortion
Clinic Closures, Access, and
Abortions, 55 J. HUMAN RES. 4 (2020) .................. 15
Allison McCann & Amy Schoenfeld
Walker, Where Restrictions on
Abortion Pills Could Matter Most in
the U.S., N.Y. TIMES (updated Apr. 7,
2023)...................................................................... 14
Mifeprex REMS Study Group et al.,
Sixteen Years of Overregulation: Time
to Unburden Mifeprex, 376 N ENGL J.
MED. 8 (2017) ........................................................ 15
Minutes of the 217th General Assembly
of the Presbyterian
Church (U.S.A.) (2006) ........................................... 4
Mishnah Ohalot 7:6,
https://www.sefaria.org/Mishnah_Oh
olot.7.6?lang=bi ...................................................... 9
vii
Mike Mitka, Some Men Who Take
Viagra Die—Why?, 283 JAMA 5
(2000) ...................................................................... 2
NAT. COUNCIL OF JEWISH WOMEN,
Abortion and Jewish Values Toolkit
(2020) ................................................................ 9, 20
A.I. Neugut, A.T. Ghatak & R.L. Miller,
Anaphylaxis in the United States: an
investigation into its epidemiology,
161 ARCH INTERN MED. 1 ....................................... 2
PEW RSCH. CTR., 2014 Religious
Landscape Study .................................................. 11
PEW RSCH. CTR., By more than two-toone, Americans say medication
abortion should be legal in their state
(Apr. 11, 2023) ...................................................... 13
Practice Bulletin No. 225: Medication
Abortion Up to 70 Days of Gestation,
ACOG (Oct. 2020, reaff’d 2023) ............................. 2
PRESBYTERIAN CHURCH (U.S.A.),
Abortion/Reproductive Choice Issues .............. 5, 11
PUB. RELIGION RSCH. INST., Abortion
Attitudes in a Post-Roe World:
Findings From the 50-State 2022
American Values Atlas (Feb. 23,
2023)........................................................................ 8
Rashi on Sanhedrin 72b:14 ................................... 9, 20
viii
S.K. Redd et al., Racial/ethnic and
educational inequities in restrictive
abortion policy variation and adverse
birth outcomes in the United States,
21 BMC HEALTH SERV RSCH. 1139
(2021) .................................................................... 18
Peggy Fletcher Stack, Surprise! The
LDS Church can be seen as more ‘prochoice’ than ‘pro-life’ on abortion.
Here’s why., THE SALT LAKE TRIBUNE
(June 1, 2019, 11:01 AM, updated
June 2, 2019, 7:27 PM) ..................................... 8, 11
Elissa Strauss, When Does Life Begin?
It’s Not So Simple., SLATE (Apr. 4,
2017, 5:55 AM) ............................................ 9, 11, 20
THE ARCHIVES OF THE EPISCOPAL
CHURCH, Reaffirm General
Convention Statement on Childbirth
and Abortion, J. GEN. CONVENTION OF
THE EPISCOPAL CHURCH,
INDIANAPOLIS 323 (1994) ........................................ 5
THE LATTER-DAY SAINTS TRADITION:
RELIGIOUS BELIEFS AND HEALTHCARE
DECISIONS (Deborah Abbott ed.,
2002)........................................................................ 8
UCLA HEALTH, Family Planning:
Medical vs. Surgical Abortion ................................ 3
UNITARIAN UNIVERSALIST ASS’N, General
Resolution on the Right to Choose
(1987) ................................................................ 6, 20
ix
UNITARIAN UNIVERSALIST ASS’N,
Statement of Conscience on
Reproductive Justice ....................................... 19–20
UNITED CHURCH OF CHRIST, General
Synod Statements and Resolutions
Regarding Freedom of Choice,
Thirteenth General Synod (1981)....................... 5, 7
UNITED CHURCH OF CHRIST, Statement
on Reproductive Health and Justice .............. 11, 19
Ushma D. Upadhyay et al., Outcomes
and Safety of History-Based
Screening for Medication Abortion,
182 JAMA INTERN MED. 5 (2022) ......................... 16
VATICAN SACRED CONGREGATION FOR THE
DOCTRINE OF THE FAITH, Declaration
on Procured Abortion (Nov. 18, 1974) .................. 11
VATICAN CONGREGATION FOR THE
DOCTRINE OF THE FAITH, Instruction
on Respect for Human Life in its
Origin and on the Dignity of
Procreation (Feb. 22, 1987) .................................... 8
1
INTEREST OF AMICI CURIAE1
Amici curiae are organizations from a broad
spectrum of religious traditions and faiths. Amici
believe that every pregnant woman should be able to
decide for herself whether to continue her pregnancy
or seek an abortion, guided by the teachings of her own
religious faith and consistent with her own values and
conscience.
Amici are particularly concerned about the
aspect of the Fifth Circuit’s decision that stays
implementation of the decision by the U.S. Food and
Drug Administration (“FDA”) allowing mifepristone to
be prescribed by telemedicine and dispensed by mail
(the “Telemedicine Stay”). Because the Telemedicine
Stay would imperil the ability of many women to follow
the teaching of their religious faith in making the
deeply personal decision whether to seek an abortion,
amici submit this brief supporting the petitions for
certiorari filed by the FDA and Danco Laboratories,
L.L.C. (“Danco”).
A list of amici appears in Appendix A.
SUMMARY OF ARGUMENT
Medication abortion utilizing the two-drug
regimen of mifepristone and misoprostol is the most
common method of medication abortion in the United
1 No party or counsel for a party in this case authored this brief
in whole or in part or made any monetary contribution to its
preparation or submission. Counsel of record for all parties have
received notice of amici’s intention to file an amicus brief at least
10 days prior to the deadline to file the brief.
2
States.2 By 2020, over half of abortions in the United
States were medication abortions.3
Medication abortion using mifepristone is one of
the safest medication regimens in medicine today. The
risk of major complications from medication abortion
is very low—approximately 0.3%.4 The mortality rate
for medication abortion is less than 0.001%.5 For
comparison, the risk of death from penicillin is four
times greater and the risk of death from Viagra is
nearly ten times greater.6
2 See Practice Bulletin No. 225: Medication Abortion Up to 70
Days of Gestation, ACOG (Oct. 2020, reaff’d 2023),
https://www.acog.org/clinical/clinical-guidance/practicebulletin/articles/2020/10/medication-abortion-up-to-70-days-ofgestation.
3 Rachel K. Jones et al., Medication Abortion Now Accounts for
More Than Half of All US Abortions, GUTTMACHER INST. (Feb 24,
2022,
updated
Dec.
1,
2022),
https://www.guttmacher.org/article/2022/02/
medication-abortion-now-accounts-more-half-all-us-abortions.
4 See FDA CTR. FOR DRUG EVALUATION & RSCH., Medical Review,
Application No. 020687Orig1s020 at 56 (Mar. 29, 2016)
(hereinafter
“2016
FDA
Approval”),
https://www.accessdata.fda.gov/drugsatfda_docs/nda/2016/02068
7Orig1s020MedR.pdf.
FDA, Mifepristone U.S. Post-Marketing Adverse Events
Summary
through
12/31/2018,
https://www.fda.gov/media/112118/download; see also 2016 FDA
Approval, supra note 4, at 82–83.
5
6 A.I. Neugut, A.T. Ghatak & R.L. Miller, Anaphylaxis in the
United States: an investigation into its epidemiology, 161 ARCH
INTERN
MED.
1,
15–21
(2001),
https://pubmed.ncbi.nlm.nih.gov/11146694/; Mike Mitka, Some
Men Who Take Viagra Die—Why?, 283 JAMA 5, 590–93 (2000),
https://jamanetwork.com/journals/jama/articleabstract/1843222.
3
Medication abortion offers unique benefits.
Women may choose medication abortion over
procedural abortion to avoid sedation or anesthesia, to
avoid a procedure involving genital contact due to
prior sexual assault or trauma, or to have the abortion
in the comfort of one’s home surrounded by family,
among many other reasons.7
Since 2021, the FDA has allowed mifepristone
to be dispensed by mail. Following this decision,
medication abortion prescribed via telehealth and
dispensed by mail has become commonplace and
proven to be as safe as when medication abortion is
dispensed in a clinic.8 It is the most accessible form of
abortion for many women across the country and is
generally less costly.
Many religions, including those represented by
amici, teach that the decision to seek an abortion is a
woman’s moral prerogative, and that abortion is
morally permissible or even required under certain
circumstances. By threatening to vastly limit access
to a safe and widely used drug, the Fifth Circuit’s
Telemedicine Stay impairs women’s ability to follow
the dictates of their conscience and the teachings of
their religious faith on whether to have an abortion.
For these and the reasons set forth below, amici
urge the Court to grant the FDA’s and Danco’s
See UCLA HEALTH, Family Planning: Medical vs. Surgical
Abortion,
https://www.uclahealth.org/medicalservices/obgyn/family-planning/patient-resources/medical-vssurgical-abortion (last visited Oct. 10, 2023).
7
8 Julia E. Kohn et al., Medication Abortion Provided Through
Telemedicine in Four U.S. States, 134 OBSTET GYNECOL 2, 343–
50 (2019), https://pubmed.ncbi.nlm.nih.gov/31306317/.
4
petitions for a writ of certiorari and on certiorari, to
reverse the Telemedicine Stay.
ARGUMENT
RELIGIOUS TRADITIONS AFFIRM WOMEN’S
MORAL RIGHT TO DECIDE WHETHER AND
UNDER WHAT CIRCUMSTANCES TO SEEK AN
ABORTION.
Many Religious Traditions View
Abortion as a Morally Acceptable
Choice.
A broad range of religious traditions recognize
the moral right of each woman to make her own
decisions about her pregnancy in accordance with her
faith and conscience—including by accessing abortion
care through a safe and effective means.
Many Protestant denominations teach that the
decision to seek an abortion is a morally permissible
choice that is consistent with Christian ethics, at least
in certain circumstances.
For instance, the Presbyterian Church teaches
that “[h]umans are empowered by the spirit
prayerfully to make significant moral choices,
including the choice to continue or end a pregnancy.”9
The Presbyterian Church affirms that “[t]he
considered decision of a woman to terminate a
9 Minutes of the 217th General Assembly of the Presbyterian
Church
(U.S.A.)
at
905
(2006),
https://www.pcusa.org/site_media/media/uploads/oga/publication
s/journal2006.pdf.
5
pregnancy can be morally acceptable,” and “therefore
should not be restricted by law.”10
Similarly, the United Church of Christ
embraces the view that “[e]very woman must have the
freedom of choice to follow her personal religious and
moral convictions concerning the completion or
termination of her pregnancy.”11
The Episcopal Church of America recognizes
“the moral option for termination of [a] pregnancy in
specific instances” and expresses a “deep conviction”
that any legislation surrounding abortion “must take
special care to see that individual conscience is
respected,”12 and must not “abridge[] the right of a
woman to reach an informed decision about the
termination of pregnancy” or limit her access “to safe
means of acting on her decision.”13 The Episcopal
10 PRESBYTERIAN CHURCH (U.S.A.), Abortion/Reproductive Choice
Issues,
https://www.presbyterianmission.org/
what-we-believe/social-issues/abortion-issues/ (last visited Oct.
10, 2023).
11 UNITED CHURCH OF CHRIST, General Synod Statements and
Resolutions Regarding Freedom of Choice, Thirteenth General
Synod,
81-GS-60
(1981),
https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/
legacy_url/2038/GS-Resolutions-Freedon-ofChoice.pdf?1418425637.
12 EPISCOPAL CHURCH, Standing Commission on Human Affairs
and
Health,
Resolution
#A087
(1988),
https://www.episcopalarchives.org/e-archives/gc_reports/reports/
1988/bb_1988-R016.pdf.
13 THE ARCHIVES OF THE EPISCOPAL CHURCH, Reaffirm General
Convention Statement on Childbirth and Abortion, J. GEN.
CONVENTION OF THE EPISCOPAL CHURCH, INDIANAPOLIS 323, 323–
25 (1994) (expressing “unequivocal opposition to any legislative,
6
Church of America has affirmed that the “decision to
terminate a pregnancy . . . properly belongs to the
couple, in consultation with their physician and the
Church.”14
Likewise, the Disciples of Christ has resolved
that “the place of decision making on abortion [is] not
with public legislators, but with the individuals
involved with the pregnancy . . . on the basis of ethical
and moral grounds.”15
Similarly,
the
Unitarian
Universalist
Association posits that “the personal right to choose in
regard to contraception and abortion” is an important
aspect of the “right of individual conscience” and the
“inherent worth and dignity of every person.”16 Many
executive or judicial action . . . that abridges the right of a woman
to reach an informed decision about the termination of pregnancy
or that would limit the access of a woman to safe means of acting
on
her
decision”),
https://episcopalarchives.org/cgibin/acts/acts_generate_pdf.pl?resolution=1994-A054.
14 EPISCOPAL CHURCH, supra note 12.
15 Freedom of Choice Act of 1989: Hearing on S. 1912 Before the
S. Comm. on Labor and Human Resources, 101st Cong. 237
(1990) (testimony of John O. Humbert, General Minister and
President, Christian Church (Disciples of Christ) in the USA and
Canada) (citing General Assembly Resolutions of the Christian
Church (Disciples of Christ) Resolution S9854 (1989) and 7524
(1975)).
16 UNITARIAN UNIVERSALIST ASS’N, General Resolution on the
Right
to
Choose
(1987),
https://www.uua.org/action/statements/right-choose.
7
other Protestant denominations embrace similar
views.17
And the Evangelical Lutheran Church in
America affirms that “there can be sound reasons for
ending a pregnancy through induced abortion,” and
that there are situations where obtaining an abortion
may be a “morally responsible” choice.18 The Lutheran
Church has therefore asserted its opposition to “laws
that deny access to safe and affordable services for
morally justifiable abortions.”19 Other Protestant
denominations, including the United Church of Christ
and the Disciples of Christ, espouse similarly
expansive views about abortion access.20
17 See, e.g., AM. BAPTIST ASS’N, Resolution Concerning Abortion
and Ministry in the Local Church (1987), http://www.abcusa.org/wp-content/uploads/2012/06/Abortionand-Ministry-in-the-Local-Church.pdf; Brief for Religious
Coalition for Reproductive Choice et al. as Amici Curiae
Supporting Respondent at app. A, Stenberg v. Carhart, 530 U.S.
914 (2000) (No. 99-830) (describing views of American Friends
Service Committee affirming “a woman’s right to follow her own
conscience concerning child-bearing, abortion, and sterilization”).
18 EVANGELICAL LUTHERAN CHURCH IN AM., A Social Statement
on:
Abortion
at
6–7
(1991),
https://download.elca.org/ELCA%20Resource%20Repository/Abo
rtionSS.pdf?_ga=2.126669897.557303659.1627007329314140115.1627007329.
19 Id. at 9–10.
20 See UNITED CHURCH OF CHRIST, supra note 11; Freedom of
Choice Act of 1989, supra note 15.
8
The LDS Church likewise “defers to [the] moral
agency” of the pregnant woman in making this
decision.21
While the official stance of the Catholic Church
is that abortion is impermissible,22 the majority of
American Catholics believe that abortion can be a
morally acceptable choice,23 and that abortion should
be legal in all or most cases.24 Moreover, Catholic
women in this country have abortions at
21 Peggy Fletcher Stack, Surprise! The LDS Church can be seen
as more ‘pro-choice’ than ‘pro-life’ on abortion. Here’s why., THE
SALT LAKE TRIBUNE (June 1, 2019, 11:01 AM, updated June 2,
2019, 7:27 PM) (citing the work of Courtney Campbell, a Mormon
professor of religion and culture at Oregon State University),
https://www.sltrib.com/religion/2019/06/01/surprise-lds-churchcan/; see also THE LATTER-DAY SAINTS TRADITION: RELIGIOUS
BELIEFS AND HEALTHCARE DECISIONS 10–11 (Deborah Abbott ed.,
2002) (affirming the “right of a woman to make her own decision”
in the matter of whether to have an abortion),
https://www.advocatehealth.com/assets/documents/faith/latterday_saints_tradition.pdf.
22 VATICAN CONGREGATION FOR THE DOCTRINE OF THE FAITH,
Instruction on Respect for Human Life in its Origin and on the
Dignity
of
Procreation
(Feb.
22,
1987),
https://www.vatican.va/roman_curia/congregations/cfaith/docum
ents/rc_con_cfaith_doc_19870222_respect-for-humanlife_en.html.
BELDEN RUSSONELLO STRATEGISTS, 2016 Survey of Catholic
Likely Voters at 5 (Oct. 2016) (“Sixty percent of Catholic likely
voters overall say that ‘deciding to have an abortion can be a
morally acceptable position.’”), https://www.rifuture.org/wpcontent/uploads/2016-Catholic-Voter-Poll.pdf.
23
24 PUB. RELIGION RSCH. INST., Abortion Attitudes in a Post-Roe
World: Findings From the 50-State 2022 American Values Atlas
(Feb. 23, 2023), https://www.prri.org/research/abortion-attitudesin-a-post-roe-world-findings-from-the-50-state-2022-americanvalues-atlas/.
9
approximately the same rate as do women of other (or
no) faith traditions.25
Traditional Jewish teachings view abortion as
not only permissible but even required when necessary
to safeguard the well-being of the pregnant woman, at
Moreover, Reform,
any stage of pregnancy.26
Reconstructionist, and Conservative Judaism all
adopt the view that “women are capable of making
moral decisions, often in consultation with their
clergy, families and physicians, on whether or not to
have an abortion.”27 Hundreds of Jewish leaders have
recently reaffirmed the importance of ensuring
25 Jenna Jerman et al., Characteristics of U.S. Abortion Patients
in 2014 and Changes Since 2008, GUTTMACHER INST. (May 2016),
https://www.guttmacher.org/report/characteristicsus-abortion-patients-2014; see also GUTTMACHER INST., Fact
Sheet: Induced Abortion in the United States at 1 (Sept. 2019),
https://www.guttmacher.org/sites/default/files/
factsheet/fb_induced_abortion.pdf.
26 See Elissa Strauss, When Does Life Begin? It’s Not So Simple.,
SLATE (Apr. 4, 2017, 5:55 AM), https://slate.com/humaninterest/2017/04/when-does-life-begin-outside-the-christianright-the-answer-is-over-time.html; NAT’L COUNCIL OF JEWISH
WOMEN, Abortion and Jewish Values Toolkit at 16 (2020),
https://www.ncjw.org/wpcontent/uploads/2020/05/NCJW_ReproductiveGuide_Final.pdf;
Mishnah
Ohalot
7:6,
https://www.sefaria.org/Mishnah_Oholot.7.6?lang=bi; Rashi on
Sanhedrin
72b:14,
https://www.sefaria.org/sheets/234926.14?lang=bi.
27 144 Cong. Rec. S10491 (daily ed. Sept. 17, 1998) (quoting Letter
of 729 Rabbis in Support of President Clinton’s Veto of H.R. 1122
(Sept. 10, 1998)).
10
women’s access to reproductive healthcare, including
abortion, as an essential matter of religious freedom. 28
Other major religions likewise teach that
abortion is both permissible and moral under certain
circumstances and embrace the ultimate authority of
a woman to make the decision whether to seek an
abortion, consistent with her faith and values. For
instance, many schools of Islamic thought permit
abortion under certain circumstances, at any point up
to 120 days from conception, or approximately 19–20
weeks gestation.29 The Buddhist Churches of America
teach that “it is the woman carrying the fetus; and no
one else, who must in the end make this most difficult
decision.”30 And while there are various views within
Hinduism on the propriety of abortion, many Hindus
believe that “each case [of abortion] requires unique
consideration” and that the “final decisions will be
based on a long series of choices made by the woman
on her lifestyle, morals, and values.”31 Consistent with
28 Letter of Jewish Clergy Leaders to the Senate Committee on
the Judiciary (July 16, 2021), https://www.ncjw.org/wpcontent/uploads/2021/07/06-16-2021_Jewish-Clergy-LeadersWHPA-Letter-FINAL-1.pdf.
29 Mohammad A. Albar, Induced Abortion From An Islamic
Perspective: Is It Criminal Or Just Elective, 8 J. FAM. CMTY. MED.
25,
29–32
(2001),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3439741/;
see
also Strauss, supra note 26.
A Shin Buddhist Stance on Abortion, 6 BUDDHIST PEACE
FELLOWSHIP
NEWSLETTER
3,
6
(July
1984),
https://www.lib.uidaho.edu/digital/objects/bpf/turningwheelsummer1984.pdf.
30
31 Hindus in America Speak Out On Abortion Issues, HINDUISM
TODAY
(Sept.
1985),
11
this view, the majority of Hindus in the United States
believe that abortion should be legal.32
This acceptance of abortion—as morally and
religiously acceptable, and sometimes even required—
is consistent with the commitment to the agency of the
pregnant woman and consistent with the refusal of
many faiths and denominations to adopt the view that
human life begins at the moment of conception.33
https://www.hinduismtoday.com/magazine/september1985/1985-09-hindus-in-america-speak-out-on-abortion-issues/.
PEW RSCH. CTR., 2014 Religious Landscape Study at 110,
https://www.pewforum.org/about-the-religious-landscape-study/.
32
33 See, e.g., PRESBYTERIAN CHURCH (U.S.A.), supra note 10;
UNITED CHURCH OF CHRIST, Statement on Reproductive Health
and Justice (noting the “many religious and theological
perspectives on when life and personhood begin”),
https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/leg
acy_url/455/reproductive-health-and-justice.pdf?1418423872;
EVANGELICAL LUTHERAN CHURCH IN AM., supra note 18
(explaining that embryology provides insight into the “complex
mystery of God’s creative activity” but that individual
interpretation of the scientific information leads to various
understandings
of
when
life
begins),
https://download.elca.org/ELCA%20Resource%20Repository/Abo
rtionSS.pdf; Fletcher Stack, supra note 21 (noting that the
Church of Jesus Christ of Latter-Day Saints has never taken an
official position on when a fetus acquires personhood); Strauss,
supra note 26 (explaining that, in the Jewish tradition, the
creation of a human life is generally viewed as something that
happens gradually over time); id. (explaining that the Muslim
tradition does not have a “universally agreed-upon moment when
the fetus becomes a person.”); VATICAN SACRED CONGREGATION
FOR THE DOCTRINE OF THE FAITH, Declaration on Procured
Abortion at n.19 (Nov. 18, 1974) (acknowledging Catholic
tradition’s lack of consistent teaching on when life begins),
https://www.vatican.va/roman_curia/congregations/cfaith/docum
ents/rc_con_cfaith_doc_19741118_declaration-abortion_en.html.
12
Many Religious Traditions
Recognize the Importance of
Medication Abortion.
As a corollary to their acceptance of abortion as
a morally acceptable choice, many religious traditions
recognize the value and importance of medication
abortion. The Religious Coalition for Reproductive
Choice has affirmed that medication abortion is a vital
piece of overall access to abortion. That is because
medication abortion can make abortion accessible to
someone who otherwise would lack access to abortion
because of state bans, distance, transportation, time
limitations or cost considerations. The Religious
Coalition for Reproductive Choice recognizes that
medication abortion gives pregnant women the dignity
of more options for when and how to have their
abortions, including in the privacy and comfort of their
own homes.
These views are shared by many faiths and
denominations.
For example, the Unitarian
Universalist Association has a long legacy of support
for abortion access—including by medication
abortion—as one of the key arenas of bodily autonomy.
Denying women the ability to safeguard their sacred
bodily autonomy and to secure access to an authorized
health care provider for medication abortion violates
Unitarian Universalists’ deeply held beliefs.
Likewise,
the
Metropolitan
Community
Churches affirm that if a woman chooses abortion, she
needs to be able to access a medically safe abortion,
including medication abortions.34
34 Metropolitan Community Churches provided this statement to
amici for use in this brief.
13
Catholics for Choice reject any ban on
mifepristone as an “attack on the reproductive
freedom and bodily autonomy of women and pregnant
people in the United States” because such bans violate
the “fundamental values” of their faith.35
And Sadhana: Coalition of Progressive Hindus
(“Sadhana”) rejects any ban on access to medication
abortion because Sadhana believes that medication
abortion is a vital subset of abortion access, that
support for abortion access reflects a Hindu value that
individuals must be allowed to make well-considered
choices for themselves, and that conscientious
decision-making is a core part of the Hindu
philosophical framework.
Likewise, Hindus for
Human Rights believes that practicing Hindus must
be allowed to make conscientious choices about their
own bodies and their reproductive health, and
abortion bans—including medication abortion bans—
interrupt the way Hindus are allowed to practice their
faith in the United States.
Medication abortion also has widespread public
support. Indeed, a recent Pew Research Center survey
shows that Protestants and Catholics in the United
States support medication abortion being legal in their
states by almost double the rate of those from the same
religions who believe it should be illegal.36
35 See CATHOLICS FOR CHOICE, Catholics for Choice Responds to
Federal Appeals Court Decision on Mifepristone (Aug. 16, 2023),
https://www.catholicsforchoice.org/press-releases/catholics-forchoice-responds-to-federal-appeals-court-decision-onmifepristone/.
36 PEW RSCH. CTR., By more than two-to-one, Americans say
medication abortion should be legal in their state (Apr. 11, 2023),
14
THE TELEMEDICINE STAY WOULD IMPAIR THE
ABILITY OF MANY WOMEN TO ACCESS
ABORTION CONSISTENT WITH THE TEACHINGS
OF THEIR RELIGIOUS FAITH.
The Telemedicine Stay will make mifepristone
more inaccessible in significant portions of the
country, thereby depriving many women of the ability
to choose if and how they seek abortion consistent with
their conscience and religious faith.
Common reasons for utilizing telemedicine to
obtain abortion pills include distance to the abortion
provider, convenience, privacy, cost, flexibility of
appointment times, and state laws imposing waiting
periods or restrictive policies.37 If the Telemedicine
Stay were to become effective, it would be
unreasonably difficult—if not impossible—for women
to obtain an abortion in many parts of the country. For
example, in some states where there are limited brickand-mortar registered abortion providers, pregnant
women may need to drive hundreds of miles, each way,
to get mifepristone dispensed in person.38
https://www.pewresearch.org/short-reads/2023/04/11/by-morethan-two-to-one-americans-say-medication-abortion-should-belegal-in-their-state/.
F.A. Kumsa, R. Prasad & A. Shaban-Nejad, Medication
abortion via digital health in the United States: a systematic
scoping review,
NPJ DIGIT. MED. 6,
128
(2023),
https://doi.org/10.1038/s41746-023-00871-2.
37
38 See Allison McCann & Amy Schoenfeld Walker, Where
Restrictions on Abortion Pills Could Matter Most in the U.S., N.Y.
TIMES
(updated
Apr.
7,
2023),
https://www.nytimes.com/interactive/2023/03/02/us/abortion-pilllawsuit-mifepristone.html.
15
Studies show that requiring individuals to
travel prevents a substantial number from reaching
providers at all.39 Increases in travel distances by as
few as 25 miles decreased abortion rates by 10%, and
increases by 50 miles decreased abortion rates by
18%.40 And for pregnant women with certain medical
conditions, disabilities, or other extenuating life
circumstances (such as lack of access to child care, the
inability to take time off work, not being able to travel
long distances, and the need for women experiencing
intimate partner violence to conceal appointments or
travel),
medication
abortion
prescribed
via
telemedicine is by far the most accessible option.
The FDA’s decision allowing mifepristone to be
prescribed by telemedicine and delivered by mail aids
women’s health. Indeed, studies show that the FDA’s
earlier requirement—that mifepristone could only be
dispensed in person in a healthcare facility—did not
make care safer.41 In 2021, after reviewing the
39 Jason M. Lindon et al., How Far Is Too Far? New Evidence on
Abortion Clinic Closures, Access, and Abortions, 55 J. HUMAN
RES. 4, 1137–60 (2020), https://jhr.uwpress.org/content/55/4/1137.
40 Id.
41 See D. Grossman et al., Induced Abortion Provision Among A
National Sample of Obstetrician-Gynecologists, 133 OBSTET
GYNECOL
3,
477–83
(2019),
https://pubmed.ncbi.nlm.nih.gov/30741798/; Mifeprex REMS
Study Group et al., Sixteen Years of Overregulation: Time to
Unburden Mifeprex, 376 N ENGL J. MED. 8, 790–94 (2017),
https://pubmed.ncbi.nlm.nih.gov/28225670/; AM. COLL. OF
OBSTETRICIANS AND GYNECOLOGISTS, Improving Access to
Mifepristone for Reproductive Health Indications, Washington,
DC:
ACOG
(2018),
https://www.acog.org/clinicalinformation/policy-and-position-statements/position-
16
mifepristone REMS program, “the FDA determined
that the available data and information support[ed]
modification of the REMS to reduce burden on the
health care delivery system and to ensure that the
benefits of the product outweigh[ed] the risks.”42
Instead of protecting women, the Telemedicine
Stay would create unnecessary burdens and harm
women seeking medication abortion. It would force
patients seeking medication abortion to make
medically unnecessary trips to obtain prescriptions
and to receive the medication, and it would prevent
access to reproductive healthcare for many women
who live far from an abortion provider or who face
other barriers to making an in-person health care
visit.
If access to mifepristone via mail and
telemedicine were suspended, abortion clinics and
telehealth organizations could provide misoprostolonly medication abortions, which may carry greater
side effects than the two-drug combination using
mifepristone.43
statements/2018/improving-access-to-mifepristone-forreproductive-health-indications.
FDA, Mifeprex (mifepristone) Information: Postmarket Drug
Safety Information for Patients and Providers (Mar. 23, 2023),
https://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyIn
formationforPatientsandProviders/ucm111323.htm.
42
43 Ushma D. Upadhyay et al., Outcomes and Safety of HistoryBased Screening for Medication Abortion, 182 JAMA INTERN
MED.
5,
482–91
(2022),
https://pubmed.ncbi.nlm.nih.gov/35311911/; Abigail R.A. Aiken
et al., Safety and effectiveness of self-managed medication
abortion provided using online telemedicine in the United States:
A population based study, 10 LANCET REG’L HEALTH AM. 100200
(2022),
17
Various religious traditions affirm a woman’s
right to follow her conscience and the teachings of her
religious faith in deciding whether to use medication
abortion. For the reasons stated above, the
Telemedicine Stay would impede their ability to do so.
THE
TELEMEDICINE
STAY
WOULD
DISPROPORTIONATELY HARM WOMEN FROM
MARGINALIZED GROUPS.
A broad array of religions, including those
represented by amici, embrace, as a central tenet of
their faith, the importance of serving and supporting
vulnerable and marginalized communities. Decreased
access
to
safe
abortion
methods
would
disproportionately affect low-income and marginalized
populations.
Due to existing inequities in healthcare access,
women with incomes below the poverty line have an
unintended pregnancy rate of more than five times
higher—and an abortion rate of six times higher—
than those of women with higher incomes.44
Furthermore, people of color account for the majority
https://www.thelancet.com/journals/lanam/article/PIIS2667193X(22)00017-5/fulltext; Dana M. Johnson et al., Safety and
effectiveness of self-managed abortion using misoprostol alone
acquired from an online telemedicine service in the United States,
55 PERSPECT SEX REPROD HEALTH 1, 4–11 (2023),
https://pubmed.ncbi.nlm.nih.gov/36744631/.
44 Elizabeth B. Harned & Liza Fuentes, Abortion Out of Reach:
The Exacerbation of Wealth Disparities After Dobbs v. Jackson
Women's Health Organization, AM. BAR ASS’N (Jan. 6, 2023),
https://www.americanbar.org/groups/crsj/publications/human_ri
ghts_magazine_home/wealth-disparities-in-civil-rights/abortionout-of-reach/.
18
of abortion patients in the United States,45 and they
will be the most severely affected by restrictions on
access to medication abortion.46 Restrictive abortion
policies may also compound existing racial/ethnic,
socioeconomic, and intersecting racial/ethnic and
socioeconomic
perinatal
and
infant
health
inequalities.47 In particular, women who live farther
from a medical clinic and those who identify as
multiracial are more likely to use telemedicine than
visit a clinic for access to abortion pills.48 A lack of
access to abortion medication through the mail will
impact these women.
Numerous faith traditions teach that people of
faith have a moral obligation to protect, succor, uplift,
and advocate on behalf of those who are poor and lowincome and those who have historically been
disenfranchised and discriminated against, including
45 See R.K. Jones & J. Jerman, Population Group Abortion Rates
and Lifetime Incidence of Abortion: United States, 2008–2014, 9
J.
PUB.
HEALTH
112,
1284–96
(2022),
AM.
OF
https://doi.org/10.2105/AJPH.2017.304042; KFF, Reported Legal
Abortions by Race of Women Who Obtained Abortion by the State
of Occurrence (2020), https://www.kff.org/womens-healthpolicy/state-indicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22:%22L
ocation%22,%22sort%22:%22asc%22%7D.
46 See S.K. Redd et al., Racial/ethnic and educational inequities
in restrictive abortion policy variation and adverse birth outcomes
in the United States, 21 BMC HEALTH SERV RSCH. 1139 (2021),
https://doi.org/10.1186/s12913-021-07165-x.
47 Id.
48 Anna E. Fiastro et al., Telehealth vs In-Clinic Medication
Abortion Services, 6 JAMA NETW OPEN 9 (2023),
https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2
809068.
19
people of color, people with disabilities, immigrants,
and LGBTQ+ individuals. And numerous religious
traditions support the ability of women from lowincome or marginalized communities to have access to
abortion, and the freedom to make decisions
concerning their reproductive health.
For example, the United Church of Christ has
adopted resolutions supporting measures to ensure
that “women with limited financial means” are able to
“exercise [their] legal right to the full range of
reproductive health services,” and affirming that
“[w]hat is legally available to women must be
accessible to all women.”49
And the Unitarian
Universalist Association has affirmed its support for
the reproductive justice movement as an extension of
its core theological teachings, acknowledging the ways
that an individual’s right to make reproductive choices
is shaped by “social and political systems as well as by
factors such as racial/cultural identity, economic
status, immigration/citizenship status, relationship
with the justice system, health status, and ability.”50
Consistent with these teachings, the Unitarian
Universalist Association seeks to ensure “control of
personal reproductive decisions” for people of “all
UNITED CHURCH OF CHRIST, supra note 33; see also CONN.
CONFERENCE OF THE UNITED CHURCH OF CHRIST, Resolution:
Freedom
of
Choice
Concerning
Abortion
(1971),
https://www.sneucc.org/files/tables/content/7726678/fields/files/3
27cad155b9c43dd8a95e03e4179fbe8/1971_freedom_of_choice.pdf
(affirming that laws that “severely limit[] access to safe
abortions” “have the effect of discriminating against the poor” and
are therefore “neither just nor enforceable”).
49
50 UNITARIAN UNIVERSALIST ASS’N, Statement of Conscience on
Reproductive
Justice,
https://www.uua.org/action/statements/reproductive-justice.
20
genders, sexual orientations, abilities, gender
identities, ages, classes, and cultural and racial
identities,” and “especially the most vulnerable and
marginalized,”51 and has condemned attempts “to
restrict access to birth control and abortion by
overriding individual decisions of conscience” which
“often result in depriving poor women of their right to
medical care.”52
In addition, many Catholics believe that
protecting the right of poor and vulnerable women to
choose whether to end their pregnancies is a natural
and necessary outgrowth of core principles of Catholic
social justice.53 Similarly, many believers from the
Jewish tradition expressly link the Jewish teaching of
tzedek tzedek tirdof—i.e., to pursue justice for all—to
the obligation to advocate for the reproductive rights
of all persons as a matter integral to religious liberty,
so that each individual can make their own moral or
faith-based decisions about their body, health, and
family.54
51 Id.
52 UNITARIAN UNIVERSALIST ASS’N, supra note 16.
See
CATHOLICS
CHOICE,
Social
Justice,
FOR
https://www.catholicsforchoice.org/issues/social-justice/
(last
visited Oct. 11, 2023); CATHOLICS FOR CHOICE, Reproductive
Equity, https://www.catholicsforchoice.org/issues/reproductivechoice/ (last visited Oct. 11, 2023); CATHOLICS FOR CHOICE,
Advocate’s Bible: A Guide for Pro-Choice Catholics and CoConspirators
at
37–46
(June
2022),
https://www.catholicsforchoice.org/wpcontent/uploads/2022/09/AdvocatesBible.23.webreduced.pdf.
53
54 See Strauss, supra note 26; NAT. COUNCIL OF JEWISH WOMEN,
supra note 26; Rashi on Sanhedrin 72b:14, supra note 26.
21
By placing a disproportionate burden on women
from marginalized communities, and by limiting their
freedom to make determinations about their
reproductive health and family formation in
accordance with their own beliefs, the Telemedicine
Stay would further undermine religious liberty.
CONCLUSION
For the foregoing reasons, amici urge this Court
to grant the petitions filed by the FDA and Danco for
a writ of certiorari and on certiorari, to reverse the
Telemedicine Stay.
Dated: October 12, 2023
Respectfully submitted,
EUGENE M. GELERNTER
Counsel of Record
JOLIE HUANG
NICOLE SCULLY
PATTERSON BELKNAP WEBB
& TYLER LLP
1133 Avenue of the Americas
New York, NY 10036
(212) 336-2000
emgelernter@pbwt.com
Counsel for Amici Curiae
1a
APPENDIX A: LIST OF AMICI CURIAE
Religious Coalition for Reproductive Choice
Interfaith Alliance
Catholics for Choice
National Council of Jewish Women
Unitarian Universalist Association
Muslims for Progressive Values
Hindus for Human Rights
ALEPH: Alliance for Jewish Renewal
Ameinu
Avodah
Hadassah, The Women’s Zionist Organization of
America
Jewish Council for Public Affairs
Jewish Orthodox Feminist Alliance
Jewish Women International
Keshet
Reconstructionist Rabbinical Association
2a
SACReD – Spiritual Alliance of Communities for
Reproductive Dignity
Sadhana: Coalition of Progressive Hindus
The Shalom Center
T’ruah: The Rabbinic Call for Human Rights
Women’s Alliance for Theology, Ethics, and Ritual
(WATER)
Women’s Rabbinic Network
Zioness
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