Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. Alliance for Hippocratic Medicine, et al.

Supreme Court briefJan 30, 2024

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Nos. 23-235, 23-236

IN THE

Supreme Court of the United States

____________________________________________________________________________________________________________

FOOD AND DRUG ADMINISTRATION, ET AL.,

Petitioners,

ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,

Respondents.

DANCO LABORATORIES, L.L.C.,

Petitioner,

ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,

Respondents.

ON WRITS OF CERTIORARI TO THE U.S. COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE WOMEN’S BAR ASSOCIATION

OF THE DISTRICT OF COLUMBIA AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

____________________________________________________________________________________________________________

Linda F. Goldwyn

Candace Beck

WOMEN’S BAR ASSOCIATION

Counsel of Record

OF THE DISTRICT OF

WOMEN’S BAR ASSOCIATION

COLUMBIA

OF THE DISTRICT OF

2800 Eisenhower Avenue,

COLUMBIA

Suite 210

2800 Eisenhower Avenue,

Alexandria, VA 22314

Suite 210

Alexandria, VA 22314

(202) 639-8880

admin@wbadc.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTERESTS OF AMICUS CURIAE ........................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 2

The Fifth Circuit Inappropriately

Credited The Doctors’ Speculative Injury

Allegations And Erred In Finding

Standing. ............................................................. 2

II. The Fifth Circuit Decision Fails To

Address The Suffering It Will Impose On

Women And The Harms It Will Impose On

Society. ................................................................ 9

A. Millions Of Women Will Suffer If

Access To Mifepristone Is Restricted. ........ 10

B. Safe Haven Laws Do Not Remedy The

Harms Of Denying Women Access To

Safe And Effective Health Care. ................ 19

1. Safe Haven Laws In No Way

Address The Harms To Women

Presented By Forced Pregnancy. .......... 20

2. Relying On Safe Haven Laws To

Address The Consequences Of

Restricting Abortion Access

Imposes Additional Social Harms. ........ 21

CONCLUSION ........................................................ 27

TABLE OF AUTHORITIES

Page(s)

Cases

Austin v. U.S. Navy Seals 1-26,

142 S. Ct. 1301 (2022)............................................4

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ............................................3, 4

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019)............................................3

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ................................................5

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................................3

Statutes

42 U.S.C. § 238n ..........................................................4

42 U.S.C. § 300a-7(b)(1) ..............................................4

42 U.S.C. § 300a-7(c) ...................................................4

D.C. Code §§ 4-1451.01–08 .......................................19

Emergency Medical Treatment and

Labor Act, 42 U.S.C. § 1395dd ..............................4

Fla. Stat. Ann. §§ 766.302–316...................................8

iii

Newborn Safe Haven Temporary Act of

2009, D.C. Law 18-29 ..........................................23

Religious Freedom and Restoration Act,

42 U.S.C. § 2000bb-1(b) .........................................4

Virginia Birth-Related Neurological

Injury Compensation Act,

Va Code §§ 38.2-5000–5021 ...................................8

Other Authorities

Abigail R. A. Aiken et al., Requests for

Self-Managed Medication Abortion

Provided Using Online Telemedicine

in 30 US States Before and After the

Dobbs v Jackson Women’s Health

Organization Decision, 328 JAMA

1768 (2022) ...........................................................13

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 - Americas 1

(Feb. 17, 2022).......................................... 12, 14, 15

Abigail R. A. Aiken, Jennifer E.

Starling & Rebecca Gomperts,

Factors Associated with Use of an

Online Telemedicine Service to

Access Self-Managed Medical

Abortion in the US, 4 JAMA

Network Open 1 (2021)..................................11, 17

American College of Obstetricians and

Gynecologists Committee on Health

Care for Underserved Women,

Increasing Access to Abortion: ACOG

Committee Opinion No. 815, 136

Obstetrics & Gynecology e107 (2020) .................17

Blue Cross Blue Shield, Trends in

Pregnancy and Childbirth

Complications in the U.S. (2020) ........................15

Caitlin Gerdts et al., Side Effects,

Physical Health Consequences, and

Mortality Associated with Abortion

and Birth After an Unwanted

Pregnancy, 26 Women’s Health

Issues 55 (2016) ...................................................16

CDC, Data on Selected Pregnancy

Complications in the United States

(2019) ....................................................................15

Conor Friedersdorf, The Death Toll of

Delay, The Atlantic (Aug. 23, 2021) ......................9

Cynthia Gyamfi-Bannerman et al.,

Postpartum Hemorrhage Outcomes

and Race, 219 Am. J. Obstetrics &

Gynecology 185.e1 (2018) ....................................16

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 Persps. on Sexual & Reprod. 4 (2023) .......................................................13

Dayna R. Cooper, Fathers Are Parents

Too: Challenging Safe Haven Laws

with Procedural Due Process, 31

Hofstra L. Rev. 877 (2003)...................................22

Diana Greene Foster et al., Comparison

of Health, Development, Maternal

Bonding, and Poverty Among

Children Born After Denial of

Abortion vs After Pregnancies

Subsequent to an Abortion, 172

JAMA Pediatrics 1053 (2018)..............................16

Diana Greene Foster et al.,

Socioeconomic Outcomes of Women

who Receive and Women who Are

Denied Wanted Abortions in the

United States, 108 Am. J. Pub.

Health 407 (2018) ................................................16

D.C. Child & Fam. Servs. Agency,

Newborn Safe Haven Annual

Reports 2012-2022,

https://cfsa.dc.gov/service/safehavens-newborns .................................................23

Donna L. Hoyert, CDC, Maternal

Mortality Rates in the United

States, 2021 (Mar. 2023) .....................................15

Elizabeth G. Raymond & David A.

Grimes, The Comparative Safety of

Legal Induced Abortion and

Childbirth in the United States, 119

Obstetrics & Gynecology 215 (2012) ...................15

Fla. Birth-Related Inj. Comp. Ass’n,

Non-Participating Physicians,

https://www.nica.com/medical-providers/non-participating-physicians .....................8

Fla. Birth-Related Inj. Comp. Ass’n,

OBGYN’S: Frequently Asked Questions, https://www.nicaofficial.org/obgyns/faq.html#:~:text=Wh

at%20does%20it%20cost%20to,credit

%20on%20their%20malpractice%20insurance ...................................................8

Gretchen Sisson et al., Adoption

Decision Making Among Women

Seeking Abortion, 27 Women’s

Health Issues 136 (2017) .....................................24

Haleigh P. Ferro et al., Disproportionate

Impact of Abortion Restriction:

Implications for Emergency

Department Clinicians, 69 Am. J.

Emergency Med. 160 (2023) ................................14

vii

Hannah Lawrence, Georgia Foster Care

System in Crisis Due to Shortage of

Foster Homes, WTVC (Feb. 15,

2017),

https://newschannel9.com/news/local

/georgia-foster-care-system-in-crisisdue-to-shortage-of-foster-homes ..........................25

HealthDay News, Abortion Remains

Medically Safe for U.S. Women (Nov.

24, 2021), https://healthlibrary.brighamandwomens.org/RelatedItems/6,1655538532 ......................................7

Huiling Feng et al., Memo from

CalYOUTH: Predictors of

Homelessness at Age 21, Chapin Hall

at the Univ. of Chicago,

https://www.chapinhall.org/wpcontent/uploads/CY_PH_IB0520.pdf...................26

Infant Abandonment, Guttmacher Inst.

(last updated Sept. 1, 2023),

https://www.guttmacher.org/statepolicy/explore/infant-abandonment ....................20

Jazmin Orozco Rodriguez, Kids Housed

in Casino Hotels? It’s a Workaround

as U.S. Sees Decline in Foster

Homes, NPR (June 14, 2023),

https://www.npr.org/sections/healthshots/2023/06/14/1181975688/fosterkids-in-casino-hotels-decline-infoster-homes .........................................................25

viii

Jeff Diamant & Besheer Mohamed,

What the Data Says About Abortion

in the U.S., Pew Rsch. Ctr. (Jan. 11,

2023),

https://www.pewresearch.org/shortreads/2023/01/11/what-the-datasays-about-abortion-in-the-u-s-2 .........................23

Jenna Jerman, Rachel K. Jones &

Tsuyoshi Onda, Guttmacher Inst.,

Characteristics of U.S. Abortion

Patients in 2014 and Changes Since

2008 (2016) ...........................................................17

Jonathan M. Bearak, Kristen Lagasse

Burke & Rachel K. Jones,

Disparities and Change over Time in

Distance Women Would Need to

Travel to Have an Abortion in the

USA: A Spatial Analysis, 2 Lancet

Pub. Health e493 (2017) ......................................18

Katherine Glaser & Jennifer Whitehair,

Missing Mifepristone at Tribal Health

Facilities Serving Native Americans,

104 Contraception 36 (2021) ...............................18

Katherine Kortsmit et al., CDC, Abortion

Surveillance - United States, 2020, 71 Morbidity & Mortality Wkly. Rep. 1,

http://dx.doi.org/10.15585/mmwr.ss7110a1 ........23

Katherine Kortsmit et al., CDC,

Abortion Surveillance - United

States, 2021, 72 Morbidity & Mortality Wkly. Rep. 1 (2023),

https://www.cdc.gov/mmwr/volumes/

72/ss/pdfs/ss7209a1-H.pdf .............................10, 11

Luu Doan Ireland et al., Medical

Compared with Surgical Abortion

for Effective Pregnancy Termination

in the First Trimester, 126

Obstetrics & Gynecology 22 (2015) .......................5

Our Cause, Nat’l Safe Haven All.,

https://www.nationalsafehavenalliance.org/our-cause ...............................................23

Neena Satija, For Troubled Foster Kids

in Houston, Sleeping in Offices is

“Rock Bottom,” Texas Trib. (Apr. 20,

2017),

https://www.texastribune.org/2017/04

/20/texas-foster-care-placement-crisis ................25

Nisha Verma & Daniel Grossman, SelfManaged Abortion in the United

States, 12 Current Obstetrics &

Gynecology Reps. 70 (2023) ...........................13, 14

Paige Sutherland et al., Inside

America’s Critical Shortage of Foster

Care Homes, WBUR (July 20, 2023),

https://www.wbur.org/onpoint/2023/

07/20/inside-americas-criticalshortage-of-foster-care-homes .............................25

Rachel K. Jones et al., Medication

Abortion Now Accounts for More

than Half of All US Abortions,

Guttmacher Inst. (Dec. 1, 2022),

https://www.guttmacher.org/article/2

022/02/medication-abortion-nowaccounts-more-half-all-us-abortions ...................10

Rachel K. Jones, Marielle Kirstein &

Jesse Philbin, Abortion Incidence

and Service Availability in the

United States, 2020, 54 Persps. on

Sexual & Reprod. Health 128 (2022) ..................11

Rebecca F. Wilson et al., CDC, Infant

Homicides Within the Context of Safe

Haven Laws-United States, 20082017, 69 Morbidity & Mortality

Wkly. Rep. 1385 (2020) ..................................21, 22

Roman Pabayo et al., Laws Restricting

Access to Abortion Services and

Infant Mortality Risk in the United

States, 17 Int’l J. Environ. Rsch. &

Pub. Health 1 (2020) ............................................24

Ruvani Jayaweera et al., Medication

Abortion Safety and Effectiveness

With Misoprostol Alone, JAMA

Network Open (Oct. 27, 2023),

https://jamanetwork.com/journals/ja

manetworkopen/fullarticle/2811114 .....................5

Sarah Miller, Laura R. Wherry & Diana

Greene Foster, The Economic

Consequences of Being Denied an

Abortion, 15 Am. Econ. J. 394 (2023) ..................17

Shaye Beverly Arnold, Reproductive

Rights Denied: The Hyde

Amendment and Access to Abortion

for Native American Women Using

Indian Health Service Facilities, 104

Am. J. Pub. Health 1892 (2014) ..........................18

Society of Family Planning, #WeCount

Report - April 2022 to March 2023

(June 15, 2023).....................................................11

Total Licensed Foster Homes 2018-2023,

Fostering Media Connections,

https://www.fostercarecapacity.com/data/total-licensed-fosterhomes ...................................................................25

U.N. Convention on the Rights of the

Child art. 7, Nov. 20, 1989, 1577

U.N.T.S. 3 .............................................................22

U.S. Dep’t of Health & Human Servs.,

Children’s Bureau, Office of the

Admin. for Children & Families,

Data and Statistics: NYTD,

https://www.acf.hhs.gov/cb/dataresearch/data-and-statistics-nytd .......................26

xii

U.S. Dep’t of Health & Human Servs.,

Nat’l Instit. of Health, Am I at Risk

for Gestational Diabetes? (2012) ..........................15

U.S. Dep’t of Health & Human Servs.,

Off. on Women’s Health, Pregnancy

Complications (2019) ...........................................15

World Health Org., Abortion Care

Guideline (2022),

https://iris.who.int/bitstream/handle/

10665/349316/9789240039483eng.pdf ..................................................................12

INTERESTS OF AMICUS CURIAE1

The Women’s Bar Association of the District

of Columbia (WBA-DC) is one of the oldest women’s

bar associations in the country. Since 1917, the WBADC has advocated for the advancement of women and

historically oppressed communities and upheld its

mission to maintain the honor and integrity of the legal profession, promote the administration of justice,

advance and protect the interests of women lawyers,

promote their mutual improvement, and encourage a

spirit of friendship. In support of its mission, the

WBA-DC participates as amicus curiae before this

Court and other courts throughout the nation to advocate for the rights of historically oppressed minorities, including women.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Fifth Circuit elevates allegations of highly

speculative, if not nonexistent, injuries to a handful of

doctors over real evidence of the harms its decision

will inflict on millions of women and society as a

whole. The injuries alleged by Respondent Doctors

(the “Doctors”) are neither “actual” nor “imminent”

but instead are based on an improbable chain of possibilities. The Doctors themselves do not prescribe

mifepristone, and nothing requires them to do so. And

1 Pursuant to Supreme Court Rule 37.6, no counsel for a

party authored the brief in whole or in part, and no party, counsel for a party, or any person other than amicus curiae and their

counsel made a monetary contribution intended to fund the

preparation or submission of the brief.

they have a federal right to refuse to provide any abortion-related treatment.

On the other hand, restricting access to mifepristone will force women to seek out more invasive and

potentially dangerous methods to terminate their

pregnancies. Should women be unsuccessful in that

regard and forced to carry their pregnancies to term,

the unnecessary restrictions on access to mifepristone

resulting from the Fifth Circuit’s decision will impose

on women much higher risks of experiencing medical

complications, prolonged economic hardship, and

even death. These harms will particularly and disproportionately affect our most vulnerable, including

Black and indigenous women, low-income women,

and women living in rural areas. And safe haven laws

do not relieve the harms to women and others created

by restricting mifepristone access. The Fifth Circuit

decision and its resulting harms cannot be allowed to

stand.

ARGUMENT

The Fifth Circuit Inappropriately Credited

The Doctors’ Speculative Injury Allegations

And Erred In Finding Standing.

The Doctors failed to allege a cognizable legal

harm and therefore do not have standing to sue. The

Doctors’ theory is: When they treat women experiencing complications from mifepristone, they must perform or complete an abortion or engage in procedures

that facilitate an abortion. Pet. App. 24a. Some claim

this violates their moral beliefs. Pet. App. 24a. Others

claim it “diverts time and resources away from their

ordinary patients,” inflicts emotional distress, or risks

exposing them to malpractice claims and increased insurance costs. Pet. App. 24a, 31a.

But these speculative and illusory claims are insufficient to show Article III standing. To have standing, the Doctors must demonstrate that: (i) they have

suffered an injury in fact that is “concrete,” “particularized,” and “actual or imminent;” (ii) the injury was

likely caused by the defendant; and (iii) the injury

would likely be redressed by judicial relief. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). The

Doctors have failed to meet that test.

The Doctors’ tenuous claims rely on hypothetical

patients suffering unforeseen complications that are

neither “actual” nor “imminent.” Id. A threatened injury must be “certainly impending to constitute injury

in fact”—“allegations of possible future injury are not

sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 409 (2013). But the Doctors have not alleged facts

showing they have been forced to treat any patients

under circumstances resulting in the harms they

claim. See Pet. App. 20a-22a. None of the declarations

relied on by the Fifth Circuit, for example, show that

any of the Doctors objected to providing care for any

patient, much less that such treatment caused the

claimed harms to them or their medical practices.

Nor have they shown that it is “likely” or “predictable” that such patients would be treated by the Doctors in this case. Dep’t of Com. v. New York, 139 S. Ct.

2551, 2566 (2019). The Doctors are not required to

prescribe mifepristone. And, under the Church

Amendments, they have a federal right to refuse to

provide any abortion-related treatment if such treatment “would be contrary to [their] religious beliefs or

moral convictions.” 42 U.S.C. §§ 238n, 300a-7(b)(1).

This statute even protects the Doctors from employment discrimination if they refuse to perform or assist

in any abortion, removing any pressure they might

feel to provide this treatment. 42 U.S.C. §§ 238n,

300a-7(c). The Doctors’ brief opposing certiorari is

telling in this respect. Despite responding at length to

the government’s arguments on standing, the Doctors

failed even to mention the Church Amendments or to

provide any explanation of why the federal conscience

protections are insufficient to protect them from

providing the abortion services they claim are at the

root of the harm they have suffered as a result of the

FDA’s actions on mifepristone. Br. in Opp’n 19-39.

The Emergency Medical Treatment and Labor

Act, 42 U.S.C. § 1395dd, does not require a different

result, as that statute does not displace the Religious

Freedom and Restoration Act, 42 U.S.C. § 2000bb1(b), and would require such treatment only if it was

the least restrictive means to save the patient’s life,

see Austin v. U.S. Navy SEALs 1-26, 142 S. Ct. 1301,

1305 (2022) (mem.) (Alito, J., dissenting) (explaining

that the government has a “compelling interest in

minimizing any serious health risk”).

The Doctors’ theory therefore, at best, relies on a

“highly attenuated chain of possibilities,” Clapper,

568 U.S. at 410. A patient must be prescribed mifepristone by a doctor who selects that treatment to

meet the patient’s medical needs. The patient must

then develop statistically anomalous complications

and seek care from a different doctor—one of the

Doctors in this suit. The patient’s complications must

be of the exceedingly rare type that requires emergency abortion care. And the Doctor must be forced to

perform those emergency services despite having a

federal right to refuse to do so. If such an improbable

string of events were sufficient to support standing, it

“would make a mockery” of this Court’s standing doctrine. Summers v. Earth Island Inst., 555 U.S. 488,

498 (2009). And yet that is precisely the position the

Doctors ask this Court to accept.

Paradoxically, the remedy the Doctors seek is

more likely to increase the mental and emotional distress they allege in support of their standing. If mifepristone is removed from the market, more women

may face medical complications related to abortions.

Although misoprostol on its own is safe and effective,

adding mifepristone reduces side effects. Compare

Ruvani Jayaweera et al., Medication Abortion Safety

and Effectiveness With Misoprostol Alone, JAMA Network

Open

(Oct.

27,

2023),

https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2811114 (showing a success rate of

misoprostol alone as 98.1%), with Luu Doan Ireland

et al., Medical Compared with Surgical Abortion for

Effective Pregnancy Termination in the First Trimester, 126 Obstetrics & Gynecology 22 (2015) (showing a success rate of 99.6% when mifepristone is taken

in combination with misoprostol). Without mifepristone, the Doctors could confront more instances of

abortion-related complications.

The Doctors nonetheless further claim that mifepristone has interfered with their medical practices

by increasing the number of patients who have

required medical care, costing them time and money.

Br. in Opp’n 35. But it is unclear how this is an “economic harm.” Pet. App. 31a. The Doctors do not allege

that patients with mifepristone complications fail to

pay their medical bills or that doctors are somehow

compensated less for treating these patients. They assert only that patients who have complications from

medication abortions require “more time and attention” than the “typical OB/Gyn patient.” Pet. App. 25a

(quoting Dr. Harrison Declaration ¶ 30). But any patient with complications related to pregnancy fits that

mold. And any patient in any hospital diverts resources from other patients. The Doctors do not suffer

and cannot allege a cognizable legal harm simply because they treat patients.

Likewise, there is no basis for the claim that the

Doctors will have greater exposure to malpractice

claims or higher insurance premiums if mifepristone

is kept on the market. In their declarations, the Doctors did not assert that the complications from mifepristone increased their risk of facing malpractice

claims or higher insurance premiums. Instead, the

declarants stated that they faced an increased risk

whenever they treated a patient with whom they had

no “existing patient relationship or prior knowledge of

the patient’s medical history.” All. for Hippocratic

Med. v. U.S. Food & Drug Admin., No. 2:22-cv-00223Z, Dkt. No. 1-53 (N.D. Tex. Nov. 18, 2022) (Declaration of Dr. Shaun Jester) at p. 5 ¶ 20; see also id. at

Dkt. No. 1-50 (Declaration of Dr. Tyler Johnson) at

p. 5 ¶ 15 (stating that they are in “higher risk situations” when they “treat women in emergency situations without crucial information”); id. at Dkt. No. 16 (Declaration of Dr. Jeffrey Barrows) at p. 5 ¶¶ 22–

23 (stating that doctors are in “riskier, emergen[cy]

medical situations” when patients are treated by “hospitalists and emergency department physicians who

have no prior history with these patients”). But this

would be true of any new emergency room patient,

whether treated for an ectopic pregnancy, a broken

bone, or a gunshot wound. Under the Doctors’ theory,

any doctor would have standing to challenge the repeal of gun laws to avoid the costs of treating gunshot

victims with no prior relationship with the hospitalists and emergency room doctors or to challenge reform of product liability regulations on the theory that

more patients will arrive at hospitals with complicated injuries after severe accidents.

Moreover, pregnancy and birth complications are

likely to rise if access to mifepristone is restricted,

leading to unwanted pregnancies. Pregnancy is more

hazardous to a pregnant person’s health than having

an abortion. Infra Section II.A.2 Medication abortions

are safer than routine procedures like colonoscopies

and tonsillectomies. Id. In fact, in response to increasing costs of medical malpractice insurance, some

states impose a mandatory fee on all physicians to

support obstetrics and gynecology physicians facing

litigation. For example, in Florida, the Florida BirthRelated Neurological Injury Compensation Association (NICA) imposes a $250 fee on “all Florida

2 See HealthDay News, Abortion Remains Medically Safe for

U.S. Women (Nov. 24, 2021), https://healthlibrary.brighamandwomens.org/RelatedItems/6,1655538532.

physicians,” and another fee is imposed against hospitals.3 Fla. Stat. Ann. §§ 766.302–316. For obstetrics

and gynecology physicians, the annual fee is $5,000

per provider.4 These fees are used “to pay for the care

of children with certain birth-related neurological injuries specified by law.”5 If an injury is covered by

NICA, “the child and his or her family are not entitled

to compensation through malpractice lawsuits.” Id.

Virginia has a similar law, the Virginia Birth-Related

Neurological Injury Compensation Act, with similar

fees. Va. Code §§ 38.2-5000–5021. It is therefore speculative at best that the malpractice rates of the Doctors will increase causing them irreparable harm.

Even if that were the result, it is no different than the

additional increase in such rates and expenses imposed by pregnancies.

There will be enormous consequences if the Court

grants standing to the Doctors in this case. If the Doctors’ alleged injuries were deemed sufficient for Article III standing, then any physician who disagrees

with or morally objects to the effects of any drug will

have standing to challenge that medication. For example, some physicians may object on moral grounds

3 Fla. Birth-Related Inj. Comp. Ass’n, Non-Participating

Physicians, https://www.nica.com/medical-providers/non-participating-physicians.

4 Fla. Birth-Related Inj. Comp. Ass’n, OBGYN’S: Frequently

Asked

Questions,

https://www.nicaofficial.org/obgyns/faq.html#:~:text=What%20does%20it%20cost%20to,credit

%20on%20their%20malpractice%20insurance.

5 Fla. Birth-Related Inj. Comp. Ass’n, Non-Participating

Physicians, https://www.nica.com/medical-providers/non-participating-physicians.

to contraceptive medication. Under the Doctors’ theory, any doctor harboring such objections would have

standing to oppose FDA action with respect to any

birth control medication—even though those medications have been approved and prescribed for decades.

Nor would such a theory be logically limited to doctors. Physician assistants and nurses too would have

standing to challenge any action on a federally approved contraceptive medication. Such challenges

would significantly complicate medical care and lead

to exponential delays in patient access to safe and

medically efficacious drugs. At a time when the FDA’s

approval process has been criticized for involving long

delays, see, e.g., Conor Friedersdorf, The Death Toll of

Delay, The Atlantic (Aug. 23, 2021), granting standing to every medical professional to challenge FDA

approval will exacerbate those delays.

The law protects physicians from having to provide care to which they object on moral grounds. But

no law allows a physician to dictate, based on religious or moral views, the medically safe care that another physician can provide. The Fifth Circuit’s

decision stretches standing doctrine beyond its limits.

If affirmed, the cost would be borne not just by the

courts that would be forced to hear a deluge of claims

but also by patients who would be deprived of a safe

and important form of reproductive health care.

II. The Fifth Circuit Decision Fails To Address

The Suffering It Will Impose On Women And

The Harms It Will Impose On Society.

While giving credence to the alleged injuries of

the Doctors, the Fifth Circuit failed to take account of

the harms its decision will impose on women and society at large.

Many women, including women throughout the

legal profession, continue to confront significant barriers and setbacks to career advancement and quality

of life if they lack control over the timing and size of

their families. Amicus members have personally benefited from access to abortion and relied on the guarantee of bodily autonomy to advance their own

careers and to promote the position of women in the

legal field as a whole. Restrictions on access to mifepristone perpetuate barriers to women’s advancement

and hinder efforts to provide equal opportunities to

all. The Fifth Circuit gave short shrift to that reality

and to other harms that result from unwanted pregnancies.

A. Millions Of Women Will Suffer If Access

To Mifepristone Is Restricted.

Allowing the Fifth Circuit to roll back evidencebased improvements to the rules on the prescription

of mifepristone profoundly harms women.

Over the past decade, medication abortion has become an increasingly common way in which women

have exercised the choice to determine the timing and

size of their families—and, indeed, their quality of

life. In 2021, the most recent year for which the CDC

reported abortion-related data, 53% of abortions were

early medication abortions (i.e., nonsurgical abortions

at 9 weeks’ gestation or less).6 In areas that broke

down the data by weeks of gestation and method type,

medication abortions accounted for an even greater

share—70.6% of abortions at 6 weeks’ gestation or

less and 61.6% of abortions at 7 to 9 weeks’ gestation.

Kortsmit et al., supra, at 7. Overall, these numbers

reflect a 137% increase in early medication abortions

between 2012 and 2021. Id. at 6–7. And, as of 2020,

the vast majority of medication abortions—more than

98%—were provided using the two-step mifepristonemisoprostol regimen. Rachel K. Jones, Marielle

Kirstein & Jesse Philbin, Abortion Incidence and Service Availability in the United States, 2020, 54 Persps.

on Sexual & Reprod. Health 128, 130 (2022).

It therefore is no surprise that with critical technological advancements, increased access to medication abortion, whether through telemedicine or

otherwise, is more pressing than ever. See Society of

Family Planning, #WeCount Report — April 2022 to

March 2023 at 3 (June 15, 2023) (observing a significant increase in abortions provided by virtual clinic

telehealth providers in recent years). Women may

seek out telemedicine to obtain a medication abortion

for a variety of reasons, including the inability to afford an in-clinic abortion, fear that a partner or family

member would find out if they tried to go to a clinic,

6 Katherine Kortsmit et al., CDC, Abortion Surveillance —

United States, 2021, 72 Morbidity & Mortality Wkly. Rep. 1, 6

(2023),

https://www.cdc.gov/mmwr/volumes/72/ss/pdfs/ss7209a1-H.pdf; see also Rachel K. Jones et al.,

Medication Abortion Now Accounts for More than Half of All US

Abortions,

Guttmacher

Inst.

(Dec.

2022),

https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions.

too long of a distance to the nearest clinic, and an inability to take time off work or school to go to a clinic.

See Abigail R. A. Aiken, Jennifer E. Starling & Rebecca Gomperts, Factors Associated with Use of an

Online Telemedicine Service to Access Self-Managed

Medical Abortion in the US, 4 JAMA Network Open

1, 4 (2021). Normalizing the use of telemedicine to deliver medication-abortion care and meet this need entails no parade of horribles. To the contrary, it has

been widely studied and endorsed.

For example, the World Health Organization

(WHO) has recommended telemedicine as one way for

trained health workers to deliver medication-abortion

services in whole or in part. World Health Org., Abortion Care Guideline 95 (2022), https://iris.who.int/bitstream/handle/10665/349316/9789240039483eng.pdf (relying on a systematic review of studies

spanning Bangladesh, Cambodia, Egypt, Indonesia,

Canada, Peru, and the United States). In support of

this recommendation, WHO specifically noted that

“[i]n studies comparing telemedicine with in-person”

medication-abortion services, “there was no difference

between the two groups in rates of successful abortion

or ongoing pregnancies,” and that “[r]eferrals for surgical intervention were fewer among women who used

telemedicine.” Id.

Illustrating just how well-accepted and safe mifepristone is, WHO goes one step further, recommending self-managed medication abortion at up to 12

weeks’ gestation as yet another alternative to in-person care. Id. at 98–99. That recommendation is

grounded in the evidence. The first U.S. study on selfmanaged medication abortion using the two-step

mifepristone-misoprostol regimen found it to be safe

and effective. 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 – Americas 1, 4, 6 (2022). It showed a 0.8%

rate of overall adverse events for self-managed medication abortions at less than 10 weeks’ gestation. Id.;

see also 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 Persps. on Sexual & Reprod.

Health 4 (2023) (noting safety of self-managed medication abortion using misoprostol alone).

Given the safety and efficacy of mifepristone—

even in telemedicine and self-managed abortion settings—the Fifth Circuit’s decision restricting access

to mifepristone does far more harm than good on a

number of fronts.

For one, restricting access to mifepristone may

force those seeking abortions to pursue more invasive

or potentially dangerous procedures. Experience has

borne this out. Past abortion restrictions have led

those seeking abortions to depend on more self-managed methods. Granted, some of those methods are

generally safe and effective, such as taking mifepristone in combination with misoprostol outside of a clinical setting. See Nisha Verma & Daniel Grossman,

Self-Managed Abortion in the United States, 12 Current Obstetrics & Gynecology Reps. 70, 72 (2023); Abigail R. A. Aiken et al., Requests for Self-Managed

Medication Abortion Provided Using Online Telemedicine in 30 US States Before and After the Dobbs v

Jackson Women’s Health Organization Decision, 328

JAMA 1768 (2022).

But other self-managed methods are significantly

less effective and more dangerous. Women left with

no other choice in light of the Fifth Circuit’s decision,

including women experiencing intimate partner violence or human trafficking, may resort to drastic

measures in an effort to terminate their pregnancies.

See Haleigh P. Ferro et al., Disproportionate Impact

of Abortion Restriction: Implications for Emergency

Department Clinicians, 69 Am. J. Emergency Med.

160, 161–62 (2023). These measures may include ingesting alcohol, castor oil, and bleach, engaging in

traumatic physical activity such as falling down

stairs, inserting unsterile objects or liquids into the

body, and attempting to physically dislodge the fetal

mass via strong compressions on the abdomen. Id. at

162.

Still other self-managed methods, such as ingesting botanicals, herbs, and vitamins, are less extreme.

See Aiken et al., Safety and Effectiveness of Self-Managed Medication Abortion, supra, at 2. But many of

these methods can nonetheless be ineffective. And

they can be harmful when they mislead the person

seeking to terminate the pregnancy into thinking

they are no longer pregnant, when in fact they still

are. See Verma & Grossman, supra, at 72. That, too,

may result in a delay that leads to an eventual surgical abortion. To be clear, while surgical abortions are

generally safe, they are undoubtedly a more invasive

procedure that could be avoided with sufficient access

to medication abortion.

Women who cannot access in-clinic abortion care

also may be forced to carry their pregnancies to term

against their choice and contrary to their own interests, placing them at an even higher risk of experiencing medical complications and economic hardship.

Pregnancy and childbirth are far riskier for

women than abortion and are associated with increased levels of hypertension, gestational diabetes,

preeclampsia, and eclampsia. See CDC, Data on Selected Pregnancy Complications in the United States

(2019); U.S. Dep’t of Health & Human Servs., Nat’l

Instit. of Health, Am I at Risk for Gestational Diabetes? (2012); U.S. Dep’t of Health & Human Servs., Off.

on Women’s Health, Pregnancy Complications (2019).

In fact, carrying a pregnancy to term carries a risk of

death 14 times higher than for early abortion. Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth

in the United States, 119 Obstetrics & Gynecology

215, 216–18 (2012). And these risks have become

more pronounced in recent years. Between 2019 and

2021, maternal-mortality rates increased by almost

60%, with Black women continuing to face a much

higher risk of maternal death. Donna L. Hoyert, CDC,

Maternal Mortality Rates in the United States, 2021

(Mar. 2023). Moreover, pregnancy and childbirth complications have been on the rise, increasing 31.5% between 2014 and 2018. Blue Cross Blue Shield, Trends

in Pregnancy and Childbirth Complications in the

U.S. 1 (2020).

Take, for example, hemorrhaging, a life-threatening complication that could arise in the course of both

abortion and childbirth. In one study, national rates

of hemorrhage postpartum—one of the leading causes

of preventable maternal death—were five times

higher than rates of hemorrhage reported in the study

of self-managed medication abortion. Aiken et al.,

Safety and Effectiveness of Self-Managed Medication

Abortion, supra, at 7. In another study, a higher percentage of women who were unable to access abortion

and forced to carry their pregnancies to term reported

potentially life-threatening conditions, including

postpartum hemorrhage, compared to women who

were able to obtain an abortion. Caitlin Gerdts et al.,

Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth After an Unwanted Pregnancy, 26 Women’s Health Issues 55, 55,

58 (2016). Moreover, the disproportionate impact on

Black women is clear: Black women are at “approximately 5 times higher risk for death” due to postpartum hemorrhage compared to White women. Cynthia

Gyamfi-Bannerman et al., Postpartum Hemorrhage

Outcomes and Race, 219 Am. J. Obstetrics & Gynecology 185.e1, 185.e6 (2018).

Limiting the safe and effective means by which

women can choose to end pregnancies early means increasing the potential for more women to experience

these health risks, some of which are life-threatening.

If that were not enough, women denied an abortion and forced to carry their pregnancies to term are

more likely to experience economic hardship for years

afterward, compared to women who are able to terminate their pregnancies. Diana Greene Foster et al.,

Socioeconomic Outcomes of Women who Receive and

Women who Are Denied Wanted Abortions in the

United States, 108 Am. J. Pub. Health 407, 412–13

(2018). Women forced to carry their pregnancies to

term are less likely to be able to pay for basic living

expenses, such as food, housing, and transportation.

Diana Greene Foster et al., Comparison of Health, Development, Maternal Bonding, and Poverty Among

Children Born After Denial of Abortion vs After Pregnancies Subsequent to an Abortion, 172 JAMA Pediatrics 1053, 1058 (2018). And their likelihood of

incurring unpaid debts that are 30 days past due, as

well as experiencing evictions and bankruptcies, increases substantially. Sarah Miller, Laura R. Wherry

& Diana Greene Foster, The Economic Consequences

of Being Denied an Abortion, 15 Am. Econ. J. 394

(2023). That is a particular cause for concern when

viewed in context: As it is, 75% of abortion patients

are low-income, and 49% live below the poverty line.

Jenna Jerman, Rachel K. Jones & Tsuyoshi Onda,

Guttmacher Inst., Characteristics of U.S. Abortion

Patients in 2014 and Changes Since 2008 at 1 (2016).

Thus, the need for more accessible mifepristone is

particularly acute for low-income women. Indeed, one

study found that a higher proportion of the population

living below the poverty line in a given county correlated with greater demand for telemedicine services

providing medication abortion. Aiken, Starling &

Gomperts, supra, at 9.

Restricting access to mifepristone also disproportionately affects women living in rural areas. As the

American College of Obstetricians and Gynecologists

has observed, “[r]estrictions and requirements of clinicians who provide abortions” and “restrictions on

the use of telemedicine” disproportionately affect rural people’s access to abortion. American College of

Obstetricians and Gynecologists Committee on

Health Care for Underserved Women, Increasing Access to Abortion: ACOG Committee Opinion No. 815,

136 Obstetrics & Gynecology e107, e112 (2020). That

makes sense. Living far from an abortion provider can

effectively make abortion inaccessible, as traveling

long distances requires paying for transportation,

taking time off work, and arranging for childcare.

Jonathan M. Bearak, Kristen Lagasse Burke & Rachel K. Jones, Disparities and Change over Time in

Distance Women Would Need to Travel to Have an

Abortion in the USA: A Spatial Analysis, 2 Lancet

Pub. Health e493, e498 (2017). These are burdens

that can be insurmountable, especially for low-income

women. And by that same logic, requiring multiple inperson follow-up visits, including to obtain misoprostol, is simply an exceptionally onerous ask. Cf. id.

(pre-abortion in-person counseling requirements).

By the same token, many indigenous people encounter high barriers to accessing medication abortion. Tribal health facilities have faced extraordinary

difficulties obtaining mifepristone. See Katherine

Glaser & Jennifer Whitehair, Missing Mifepristone at

Tribal Health Facilities Serving Native Americans,

104 Contraception 36, 37 (2021). That is all the more

concerning given many Indian Health Service facilities are not equipped to provide any abortion services

at all. Id.; Shaye Beverly Arnold, Reproductive Rights

Denied: The Hyde Amendment and Access to Abortion

for Native American Women Using Indian Health Service Facilities, 104 Am. J. Pub. Health 1892, 1892

(2014). One study noted that, for their tribal community in Arizona, the “nearest other source of

healthcare is 75 miles away,” which makes restricted

access to mifepristone particularly harmful for

indigenous women living in rural areas. Glaser &

Whitehair, supra, at 37.

The forward-looking steps the FDA has undertaken in recent years, including allowing distribution

of mifepristone through retail pharmacies and easing

requirements for in-person visits, are designed to help

bridge some of these gaps in health care. And yet, this

evidence-based progress in meeting women’s

healthcare needs will be all for naught, gutted, and

undone by the Fifth Circuit’s haphazard ruling.

Further compounding these harms, the final blow

is the Fifth Circuit’s choice of the remedy in this case.

The Fifth Circuit’s “stay” results in the temporary removal of Mifeprex (not to mention a more prolonged

removal of generic mifepristone) from shelves while

the drug is relabeled and brought into compliance.

For however long that process takes—and Petitioners

contend it will be an extended period of time—the

Fifth Circuit’s decision entirely divests women of an

option to end pregnancy early through a safe and effective method of medication abortion.

B. Safe Haven Laws Do Not Remedy The

Harms Of Denying Women Access To

Safe And Effective Health Care.

The harms to women, contrary to what some have

proposed, are, furthermore, not extinguished through

the presence of safe haven laws. See, e.g., Brief of

Amici Curiae Women Injured by Abortion, et al. in

Opposition to Stay, U.S. Food & Drug Admin. v. All.

for Hippocratic Med., Nos. 22A901, 22A902 (U.S. Apr.

17, 2023). Safe haven laws permit the anonymous

relinquishment of infants in designated locations to

authorized personnel without fear of criminal consequence for that abandonment. See, e.g., D.C. Code

§§ 4-1451.01–08 (Newborn Safe Haven). All 50 states

and the District of Columbia have enacted such laws,

each with different requirements and restrictions.

The differences are numerous and include the categories of facilities that qualify as safe surrender sites,

individuals authorized to surrender infants, obligations to preserve the anonymity of those relinquishing

the infants, and other caretaking and administrative

responsibilities of the acceptors. See Infant Abandonment, Guttmacher Inst. (last updated Sept. 1, 2023),

https://www.guttmacher.org/state-policy/explore/infant-abandonment.

Critically, however, none of the safe haven laws

alleviate the harms to women presented by the restriction of medication abortion. And they further present unique ethical, legal, and administrative

concerns. Those concerns will become all the more serious if safe haven programs must be increasingly relied on to bear the burdens imposed by unwanted

births on women and society broadly.

Safe Haven Laws In No Way Address

The Harms To Women Presented By

Forced Pregnancy.

As an initial matter, safe haven laws cannot substitute for abortion. No matter how well-intentioned

or implemented, they do nothing to address the immediate circumstances of an unwanted pregnancy.

By design, safe haven laws presuppose a pregnancy carried to term. Pregnancy, as addressed supra, places unique demands on the female body and

creates additional economic costs. These harms to

women, which extend past birth but begin and compound over the course of the pregnancy, cannot begin

to be addressed by the option to surrender a baby after live delivery.

This should not be surprising, as safe haven laws

were not enacted to address pregnancy but rather the

adjacent yet distinct issues of infant abandonment

and infanticide. See Rebecca F. Wilson et al., CDC, Infant Homicides Within the Context of Safe Haven

Laws—United States, 2008–2017, 69 Morbidity &

Mortality Wkly. Rep. 1385 (2020). In essence, the security afforded by safe haven laws to relinquishing

parents aims to protect infants. Offering immunity for

responsible abandonment can indeed provide incalculable relief for new mothers who would otherwise be

faced with difficult and markedly worse choices. But

these laws were not designed to meet the needs of

women who do not want to be pregnant. Naturally,

they fall short of doing so in many ways.

Relying On Safe Haven Laws To

Address The Consequences Of

Restricting

Abortion

Access

Imposes Additional Social Harms.

Setting aside the rights of and harms to birth

mothers, safe haven laws also present additional unanswered questions of legal rights and associated

harms to broader society. Among the differences between safe haven laws is whether the non-birth

parent must be notified when the birth parent relinquishes the infant, which is not required in a majority

of states. While goals of total anonymity and immunity for infant abandonment may be better achieved

without a notice requirement, scholars have criticized

safe haven laws as promoting potential infringements

on the rights of non-relinquishing parents. See, e.g.,

Dayna R. Cooper, Fathers Are Parents Too: Challenging Safe Haven Laws with Procedural Due Process, 31

Hofstra L. Rev. 877 (2003). Similarly, the anonymity

protected by safe haven laws also impinges on an infant’s right to, “as far as possible” “know and be cared

for by his or her parents.” U.N. Convention on the

Rights of the Child art. 7, Nov. 20, 1989, 1577

U.N.T.S. 3. These questions, which are inherent and

unavoidable consequences of key incentives of these

laws, remain unaddressed by any court to date and

persist as sources of potential social harm with impact

proportional to the use of the systems.

Nor can these concerns of principle be dismissed

in light of the practical effectiveness of safe haven programs. Indeed, research on the effectiveness of safe

havens is wanting. Most states do not require promotion or education of their safe haven programs, allocate resources to track wellness or other outcomes of

relinquished infants, or have established mechanisms

for reporting these statistics. It is thus unclear

whether any available data accurately reflects the impact of the programs, and it is difficult to gauge impact at all.

Where data is available, they raise questions as

to whether safe haven laws are an effective solution

for alleviating the concerns that they were

implemented to address. Although widespread safe

haven laws have coincided with a decline in infant

homicides on the day of birth, infants are still more

likely to die on their first days of life than any other

point in their lifetimes by at least 5.4 times. See Wilson et al., supra.

Relatedly, the available data does not support the

image of a country in which these programs are commonly used. The District of Columbia is one jurisdiction where the Child and Family Services Agency has

published several Newborn Safe Haven Annual Reports. Since its policy was first enacted in 2009, one

infant was reported relinquished in the decade of

2012-2022. See Newborn Safe Haven Temporary Act

of 2009, D.C. Law 18-29; D.C. Child & Fam. Servs.

Agency, Newborn Safe Haven Annual Reports 20122022,

https://cfsa.dc.gov/service/safe-havens-newborns. In contrast, the District of Columbia reported

over 4,400 abortions in 2020 alone. See Katherine

Kortsmit et al., CDC, Abortion Surveillance — United

States, 2020, 71 Morbidity & Mortality Wkly. Rep. 1

(2022),

http://dx.doi.org/10.15585/mmwr.ss7110a1.

This difference between the use of safe havens and

abortions is reflected nationally as well. According to

the National Safe Haven Alliance, around 4,700 infants have been relinquished since the enactment of

the first safe haven law by the Texas legislature in

1999. See Our Cause, Nat’l Safe Haven All.,

https://www.nationalsafehavenalliance.org/ourcause. Abortions, of which there are hundreds of thousands annually, outnumber the surrendered babies

by several orders of magnitude. See Jeff Diamant &

Besheer Mohamed, What the Data Says About Abortion in the U.S., Pew Rsch. Ctr. (Jan. 11, 2023),

https://www.pewresearch.org/shortreads/2023/01/11/what-the-data-says-about-abortionin-the-u-s-2. These data are consistent with research

showing that most women will not surrender a baby

to adoption, despite being aware of that option, and

instead become parents if they cannot obtain an abortion and are forced to carry an unwanted pregnancy

to term. See Gretchen Sisson et al., Adoption Decision

Making Among Women Seeking Abortion, 27 Women’s

Health Issues 136, 139 (2017).7

The vast numerical difference in magnitude not

only suggests that abortions serve real needs not addressed by safe havens but also raises the question of

whether safe havens could, practically, support hundreds of thousands more infants than they do at present. Are safe haven programs adequately funded,

operated, and publicized to handle and provide best

outcomes in the face of an immense and sudden increase in cases? Beyond presenting challenges to

gauging these programs’ current impact, the lack of

study on these programs precludes accurately extrapolating this solution’s potential.

And yet, it is certain that an increase in the reliance on safe haven programs will lead directly to increased strain on the country’s foster care system.

Though the intake process differs by state and in

some cases by local jurisdiction, most, if not all,

7 The harms flow both ways, as greater restrictions on access to abortion services have also been correlated with higher

infant-mortality risk. Roman Pabayo et al., Laws Restricting Access to Abortion Services and Infant Mortality Risk in the United

States, 17 Int’l J. Environ. Rsch. & Pub. Health 1 (2020).

relinquished infants travel through foster care or preadoptive homes on the path to adoption. At the same

time, the number of licensed foster homes has not

kept pace with demand, even dramatically decreasing

in some states. See Total Licensed Foster Homes 20182023, Fostering Media Connections, https://www.fostercarecapacity.com/data/total-licensed-foster-homes.

As investigated by numerous media outlets, the need

has pushed states to create ad hoc group homes in settings such as hotels, offices, casinos, emergency

rooms, and juvenile detention centers.8 It should be

noted that any additional use of safe haven programs

will contribute further pressure to an already-exhausted foster care system.

Even if the country could guarantee a foster home

for every child in need, harms remain. Providing a

child with a safe home prior to adoption can be a rewarding and transformative experience, and foster

parents can profoundly change the lives of their foster

8 See, e.g., Neena Satija, For Troubled Foster Kids in Hou-

ston, Sleeping in Offices is “Rock Bottom,” Texas Trib. (Apr. 20,

2017),

https://www.texastribune.org/2017/04/20/texas-fostercare-placement-crisis; Hannah Lawrence, Georgia Foster Care

System in Crisis Due to Shortage of Foster Homes, WTVC (Feb.

15, 2017), https://newschannel9.com/news/local/georgia-fostercare-system-in-crisis-due-to-shortage-of-foster-homes;

Paige

Sutherland et al., Inside America’s Critical Shortage of Foster

Care Homes, WBUR (July 20, 2023), https://www.wbur.org/onpoint/2023/07/20/inside-americas-critical-shortage-of-fostercare-homes; Jazmin Orozco Rodriguez, Kids Housed in Casino

Hotels? It’s a Workaround as U.S. Sees Decline in Foster Homes,

NPR (June 14, 2023), https://www.npr.org/sections/healthshots/2023/06/14/1181975688/foster-kids-in-casino-hotels-decline-in-foster-homes.

children for better. But the system is far from perfect.

There are ample reports on foster care youth experiences of childhood homelessness, physical and sexual

abuse, substance abuse, incarceration, and teen pregnancy. Research has also shown that foster care youth

score lower on standardized testing and report lower

earnings and employment rates as compared to their

peers.9 Many of these struggles are further exacerbated among minority youth. It would be unrealistic

to celebrate the second chance that safe haven laws

provide without simultaneously recognizing that

these risks could become any relinquished infant’s reality.

The complexities presented here demonstrate

that safe haven laws do not meaningfully alleviate the

harms caused by unnecessarily restricting access to

abortion. To be clear, amicus does not intend to argue

for or against these laws generally; rather, amicus

aims to present considerations to further define and

contextualize them. In so doing, amicus hopes to present safe haven laws as policy solutions that are complex, nuanced, and ultimately directed at an entirely

different social issue from abortion.

9 See U.S. Dep’t of Health & Human Servs., Children’s Bureau, Office of the Admin. for Children & Families, Data and

Statistics:

NYTD,

https://www.acf.hhs.gov/cb/data-research/data-and-statistics-nytd; Huiling Feng et al., Memo from

CalYOUTH: Predictors of Homelessness at Age 21, Chapin Hall

at the Univ. of Chicago, https://www.chapinhall.org/wp-content/uploads/CY_PH_IB0520.pdf.

CONCLUSION

This Court should reverse the judgment of the

Fifth Circuit.

Respectfully submitted,

Linda F. Goldwyn

Candace Beck

WOMEN’S BAR

Counsel of Record

ASSOCIATION OF THE

WOMEN’S BAR

DISTRICT OF COLUMBIA

ASSOCIATION OF THE

2800 Eisenhower Ave.,

DISTRICT OF COLUMBIA

Suite 210

2800 Eisenhower Ave.,

Alexandria, VA 22314

Suite 210

Alexandria, VA 22314

(202) 639-8880

admin@wbadc.org

Counsel for Amicus Curiae

January 30, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.