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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Text

Nos. 23-235, 23-236

In the Supreme Court of the United States

FOOD AND DRUG ADMINISTRATION, ET AL.,

Petitioners,

v.

ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,

Respondents.

DANCO LABORATORIES, L.L.C.,

Petitioner,

v.

ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF MEDICAL STUDENTS FOR CHOICE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JAYME JONAT

Counsel Of Record

CHARLOTTE BAIGENT

HOLWELL SHUSTER & GOLDBERG LLP

425 Lexington Avenue, 14th Floor

New York, NY 10017

(646) 837-8455

jjonat@hsgllp.com

cbaigent@hsgllp.com

Counsel for Amicus Curiae

i

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

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ................................................................3

I.

The FDA’s evidence-based regulation of

mifepristone warrants deference .....................3

II.

Medical schools must be permitted to teach

evidence-based medicine ................................10

III.

Clinical and residency programs must be

permitted to provide evidence-based

training............................................................18

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

ii

TABLE OF AUTHORITIES

CASES

Biden v. Missouri,

595 U.S. 87 (2022) ................................................... 9

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................... 22

FCC v. Prometheus Radio Project,

592 U.S. 414 (2021) ........................................... 9, 10

FDA v. Am. Coll. Of Obstetricians & Gynecologists,

141 S. Ct. 10 (2021) ................................................. 7

FDA v. Am. Coll. of Obstetricians & Gynecologists,

141 S. Ct. 578 (2021) ............................................... 7

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................. 7

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ............................................. 9

Little Rock Family Planning Serv. v. Rutledge,

397 F. Supp. 3d (E.D. Ark. 2019) ............................ 8

Planned Parenthood of Greater Iowa, Inc. v. Miller,

30 F. Supp. 2d 1157 (S.D. Iowa 1998) .................... 8

Planned Parenthood of Ind. & Ky., Inc. v. Comm’r,

Ind. State Dep’t of Health, 896 F. 3d (7th Cir.

2018). ....................................................................... 8

Planned Parenthood of Wis., Inc. v. Schimel,

806 F. 3d (7th Cir. 2015) ......................................... 8

South Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ............................................. 7

iii

Weinberger v. Bentex Pharms., Inc.,

412 U.S. 645 (1973) ............................................... 13

STATUTES

21 U.S.C. § 331 note .................................................... 4

21 U.S.C. § 355(d) .................................................... 2, 4

21 U.S.C. § 355-1 ..................................................... 2, 4

OTHER AUTHORITIES

Accreditation Council for Graduate Med. Educ.,

ACGME Program Requirements for Graduate

Medical

Education

in

Obstetrics

and

Gynecology (Sept. 17, 2022) ..................................21

Anna Popinchalk & Gilda Sedgh, Trends in the

method and gestational age of abortion in highincome countries, 45 BMJ SEX REPROD. HEALTH

95 (2019) ..................................................................3

Ara Aiken et al., Effectiveness, safety and

acceptability of no-test medical abortion

(termination of pregnancy) provided via

telemedicine: a national cohort study, 128 NAT’L

LIBR. MED. 1464 (2021) ...........................................6

Basil Varkey, Principles of Clinical Ethics and

Their Application to Practice, 30 MED.

PRINCIPLES & PRAC. 17 (2021)...............................17

Eve Espey et al., Abortion education in the medical

curriculum: a survey of student attitudes, 77

CONTRACEPTION 205 (2008) ...................................18

Greer

Donley,

Medication

Abortion

Exceptionalism, 107 CORNELL L. REV. 627

(2022) ...................................................................3, 4

iv

Gynuity Health Projects, Mifepristone Approved

List (May 2023)....................................................2, 5

Helena K. Kallner et al., Home self-administration

of vaginal misoprostol for medical abortion at

50–63 days compared with gestation of below 50

days, 25 HUMAN REPROD. 1153 (2010) ....................6

Honor MacNaughton et al., Mifepristone and

Misoprostol for Early Pregnancy Loss and

Medication Abortion, 103 AM. FAM. PHYSICIAN

473 (2021) ................................................................3

Jeff Diamant & Besheer Mohamed, What the data

says about abortion in the U.S., PEW RSCH. CTR.

(Jan. 11, 2023) .........................................................3

Jennifer K. Hsia et al., Medical abortion with

mifepristone and vaginal misoprostol between

64 and 70 days’ gestation, 100 CONTRACEPTION

178 (2019) ................................................................6

Josephine L. Dorsch et al., Impact of an evidencebased medicine curriculum on medical students’

attitudes and skills, 92 J. MED. LIBR. ASS’N 397

(2004) .....................................................................11

Kavita Vinekar et al., Projected Implications of

Overturning Roe v Wade on Abortion Training

in U.S. Obstetrics and Gynecology Residency

Programs, 140 OBSTETRICS & GYNECOLOGY 146

(2022) .....................................................................23

v

Kendal Orgera et al., Training Location

Preferences of U.S. Medical School Graduates

Post Dobbs v. Jackson Women’s Health, AM.

ASS’N AM. MED. COLL. RSCH. ACTION INST. (Apr.

13, 2013) ................................................................23

Laura Menard et al., Integrating evidence-based

medicine skills into a medical school

curriculum:

a

quantitative

outcomes

assessment, 26 BMJ EVIDENCE BASED MED. 249

(2020) .....................................................................11

Laura Schummers et al., Abortion Safety and Use

with Normally Prescribed Mifepristone, 386

New Eng. J. MED. 57 (2022) ....................................6

Liaison Committee on Medical Education,

Functions and Structure of a Medical School

(Nov. 2023)................................................. 11, 12, 15

Lisa S. Lehmann et al., A Survey of Medical Ethics

Education at U.S. and Canadian Medical

Schools, 79 ACAD. MED. 682 (2004).......................15

Luci Hulsman et al., Impact of the Dobbs v.

Jackson Women’s Health Organization decision

on retention of Indiana medical students for

residency, 5 AM. J OBSTETRICS & GYNECOLOGY

101164 (Nov. 2023) ................................................22

Marike Lemmers et al., Medical Treatment for

Early Fetal Death (Less Than 24 Weeks), 6

COCHRANE DATABASE SYST. REV. 1 (2019) ..............3

vi

Med. School Objectives Writing Grp., Learning

Objectives for Medical Student Education—

Guidelines for Medical Schools: Report I of the

Medical School Objectives Project, 74 ACAD.

MED. 13 (1999).......................................................11

Mette Løkeland et al., Implementing Medical

Abortion with Mifepristone and Misoprostol in

Norway 1998–2013, 46 INT’L J. EPIDEMIOLOGY

643 (2017) ................................................................6

Mitchell D. Creinin et al., Medication Abortion Up

to 70 Days of Gestation, AM. COLL.

OBSTETRICIANS & GYNECOLOGISTS PRAC. BULL.

NO. 225 (Oct. 2020), ................................................9

Nick Anderson, A race to teach abortion

procedures, before the bans begin, WASH. POST

(Jun. 20, 2022) .......................................................24

Rachel K. Jones, Medication Abortion Now

Accounts for More Than Half of All US

Abortions, GUTTMACHER INST. (Feb. 24, 2022) .......3

Rachel R. Peachman, Dobbs Decision Threatens

Full Breadth of Ob-Gyn Training, 328 J. AM.

MED. ASS’N 1668 (2022) ...................................18, 23

Sarah McNeilly & Vivian Kim, A Call to

Standardize Abortion Education Across U.S.

Medical Schools, ALBERT EINSTEIN COLL. MED.

(Jul. 7, 2022) ..........................................................22

Steven Tenny & Matthew Varacallo, Evidence

Based Medicine, STATPEARLS PUBL’G (Oct. 24,

2022) ................................................................10, 14

vii

Thomas R. McCormick et al., Principles of

Bioethics, UNIV. WASH. MED. DEP’T BIOETHICS &

HUMAN. (last visited Jan. 24, 2024)......................15

Tom L. Beauchamp & James F. Childress,

Principles of Biomedical Ethics (8th ed. 2019) ....15

Univ. of Cal., S.F., Analysis of Medication

Abortion Risk and the FDA Report: Mifepristone

U.S. Post-Marketing Adverse Events Summary

through 12/31/2018, BIXBY CTR. FOR REPROD.

HEALTH (Apr. 2019) .................................................5

Univ. of Cal., S.F., The Kenneth J. Ryan Residency

Training Program in Abortion & Family

Planning, BIXBY CTR. FOR REPROD. HEALTH

(last visited Jan. 28, 2024) ....................................24

U.S. Food & Drug Admin., Information about

Mifepristone for Medical Termination of

Pregnancy Through Ten Weeks Gestation (Mar.

23, 2023) ..................................................................5

U.S. Food & Drug Admin., Mifepristone U.S. PostMarketing Adverse Events Summary Through

12/31/2022 (Dec. 31, 2022) ....................................5

World Health Org., Medical management of

abortion (2018) ......................................................17

World Health Org., Model List of Essential

Medicines (2019) ......................................................3

viii

Yen Yi Tan et al., Comparing clinical trial

population representativeness to real-world

populations: an external validity analysis

encompassing 43 895 trials and 5 685 738

individuals across 989 unique drugs and 286

conditions in England, 3 LANCET 674 (2022) .......14

1

INTERESTS OF AMICUS CURIAE 1

Medical Students for Choice (“MSFC”) is a nonprofit organization with over 10,000 members at

nearly 300 chapters in over 30 countries, including

185 chapters across the United States. MSFC seeks to

ensure that medical students and trainees have access

to comprehensive, evidence-based education on

reproductive healthcare. MSFC has a strong interest

in protecting evidence-based medical education and

training. Accordingly, MSFC submits this brief to

outline the concerns of the organization’s members

concerning judicial interference with evidence-based

access to mifepristone. 2

SUMMARY OF ARGUMENT

Medical education in the United States should be

among the best in the world. However, judicial

interference with the Food and Drug Administration’s

(“FDA”) evidence-based regulation of mifepristone

risks damaging the quality and reputation of medical

education and training in this country.

Mifepristone is a safe and effective medication

used in nearly 100 countries around the world for

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states that

no counsel for a party authored this brief in whole or in part, and

no person or entity, other than amicus curiae and its counsel,

made a monetary contribution to its preparation or submission.

The statements provided herein express the views of the

speaker as a member of MSFC and should not be attributed to

any other institutions with which such speakers may be

affiliated.

2

2

abortion care and miscarriage management. 3 Doctors

and patients can trust that mifepristone is safe and

effective as distributed, relying on the FDA’s evidencebased and scientifically rigorous review and approval

process. See 21 U.S.C. § 355(d) (mandating for drug

approval “adequate tests by all methods reasonably

applicable to show whether or not such drug is safe for

use under the conditions prescribed, recommended, or

suggested in the proposed labeling”); 21 U.S.C. § 3551 (empowering the FDA to implement “risk evaluation

and mitigation strategies” (REMS)). The Fifth

Circuit’s stay of the FDA’s changes to mifepristone’s

label and REMS, after decades of data on its safe and

effective use, cannot be squared with science.

There is a grave risk that if courts can supplant

their views for those of the FDA, against the weight of

scientific evidence and global consensus, then the

quality of medical education and training in the

United States will suffer. Medical schools would be left

to translate policies that are not scientifically

supported to students, contrary to their core function

of providing an evidence-based education. Meanwhile,

clinical and residency programs would be unduly

limited in their ability to train future physicians on a

globally accepted, evidence-based standard of care.

In short, medical schools and residency programs

in the United States cannot provide world-class

teaching and training in a healthcare system in which

evidence-based medicine is overruled by courts.

Gynuity Health Projects, Mifepristone Approved List (May

2023), https://shorturl.at/eDINX.

3

3

ARGUMENT

I.

The FDA’s evidence-based regulation of

mifepristone warrants deference.

Mifepristone is a globally accepted standard of

care, championed by the World Health Organization

as an essential medicine and available in almost 100

countries. 4 After nearly a quarter-century of

mifepristone’s safe and effective use in the United

States, medication abortions now account for more

than half of all abortions in the country. 5 Around the

world, the data similarly shows that medication

abortions account for approximately half of all

abortions in most high-income countries. 6 This Court

should defer to the FDA’s evidence-based regulation of

mifepristone—a drug proven to be safe and effective

for

medication

abortions

and

miscarriage

management. 7

Id.; World Health Org., Model List of Essential Medicines

(2019), at 47, https://rb.gy/j5ouh.

4

See Rachel K. Jones, Medication Abortion Now Accounts for

More Than Half of All US Abortions, GUTTMACHER INST. (Feb. 24,

2022), https://rb.gy/jf9ey; Jeff Diamant & Besheer Mohamed,

What the data says about abortion in the U.S., PEW RSCH. CTR.

(Jan. 11, 2023), https://rb.gy/232rl.

5

6 Anna

Popinchalk & Gilda Sedgh, Trends in the method and

gestational age of abortion in high-income countries, 45 BMJ SEX

REPROD. HEALTH 95 (2019).

7 E.g., Honor MacNaughton et al., Mifepristone and Misoprostol

for Early Pregnancy Loss and Medication Abortion, 103 AM. FAM.

PHYSICIAN 473 (2021); Marike Lemmers et al., Medical

Treatment for Early Fetal Death (Less Than 24 Weeks), 6

COCHRANE DATABASE SYST. REV. 1 (2019); Greer Donley,

4

A. The FDA is the agency entrusted to decide,

based on its scientific expertise, whether mifepristone

is safe and effective for distribution and on what

terms. The FDA cannot approve a drug for

distribution, unless there are “adequate tests by all

methods reasonably applicable to show whether or not

such drug is safe for use.” 21 U.S.C. § 355(d). In 2000,

the FDA determined—after a four-year review—that

mifepristone was safe and effective for use under

specified conditions, including adverse effects

reporting and ongoing studies of patient outcomes.

J.A. 224–231. In 2007, Congress enacted the FDA’s

REMS regime. See U.S.C. § 355-1. Mifepristone was

deemed to have REMS, in accordance with the

restrictions on use set out in the 2000 approval. See 21

U.S.C. § 331 note.

In 2016, after 16 years of reporting and data, the

FDA modified mifepristone’s label to inter alia

increase the gestational age limit from 49 days to 70

days, change the dosing from 600 to 200 mg, and

reduce in-person visits from three to one. JA. 293–300.

The FDA also changed the REMS to permit additional

licensed

healthcare

providers

to

prescribe

mifepristone

and

remove

certain

reporting

requirements, after 16 years of such data. J.A. 309–

310. In 2021, the FDA halted enforcement of the inperson dispensing requirement, J.A. 377, later

permanently removing the requirement based on

decades of “data and information support[ing]

Medication Abortion Exceptionalism, 107 CORNELL L. REV. 627,

651–52 (2022).

5

modification of the REMS to reduce burden on the

health care delivery system.” 8

B. Judicial interference with the FDA’s evidencebased regulation of mifepristone would result in the

United States being out of step with global scientific

consensus. Decades of data on mifepristone establish

that it is safe and effective, and indeed much safer

than commonly prescribed drugs like Viagra or

Tylenol. 9 Nearly six million Americans have safely

used mifepristone to complete an abortion, and nearly

100 countries have approved use of mifepristone,

including the United Kingdom, France, Canada,

Sweden, Germany, Norway, and Switzerland. 10

The FDA’s gradual reduction of restrictions on

mifepristone is in keeping with global scientific

consensus based on decades of data. A study in

Canada—where mifepristone has been accessible like

any other prescription since November 2017—showed

that adverse effects and complications remained

8 U.S. Food & Drug Admin., Information about Mifepristone for

Medical Termination of Pregnancy Through Ten Weeks Gestation

(Mar. 23, 2023), https://t.ly/v3aOV.

9 Univ. of Cal., S.F., Analysis of Medication Abortion Risk and the

FDA Report: Mifepristone U.S. Post-Marketing Adverse Events

Summary through 12/31/2018, BIXBY CTR. FOR REPROD. HEALTH

(Apr. 2019), http://bit.ly/48MBVnu.

10 U.S. Food & Drug Admin., Mifepristone U.S. Post-Marketing

Adverse Events Summary Through 12/31/2022 (Dec. 31, 2022),

https://rb.gy/s3zav; Gynuity Health Projects, supra note 3.

6

stable before and after REMS-like restrictions. 11

Another study of over 50,000 patients in the United

Kingdom showed no material difference in safety or

efficacy using a telemedicine-hybrid model, with

ultrasonography performed only when ectopic

pregnancy is indicated. 12 Numerous additional studies

support the FDA’s changes to mifepristone’s

regulations, including increasing the indicated

gestational age from seven to ten weeks and reducing

the number of required in-person doctor visits. 13

C. It is not the role of courts to second-guess the

FDA’s scientific expertise. Courts, for good reason,

“owe significant deference to the politically

accountable entities [like the FDA] with the

Laura Schummers et al., Abortion Safety and Use with

Normally Prescribed Mifepristone, 386 NEW ENG. J. MED. 57

(2022).

11

12 Ara Aiken et al., Effectiveness, safety and acceptability of no-

test medical abortion (termination of pregnancy) provided via

telemedicine: a national cohort study, 128 NAT’L LIBR. MED. 1464

(2021).

13 E.g., Mette Løkeland et al., Implementing Medical Abortion

with Mifepristone and Misoprostol in Norway 1998–2013, 46

INT’L J. EPIDEMIOLOGY 643 (2017) (Norwegian study of over

200,000 medication abortions up to 12 weeks’ gestation); Jennifer

K. Hsia et al., Medical abortion with mifepristone and vaginal

misoprostol between 64 and 70 days’ gestation, 100

CONTRACEPTION 178 (2019) (English study of medical records

showing mifepristone-misoprostol abortion is safe up to 70 days’

gestation); Helena K. Kallner et al., Home self-administration of

vaginal misoprostol for medical abortion at 50–63 days compared

with gestation of below 50 days, 25 HUMAN REPROD. 1153 (2010)

(Swedish study showing mifepristone-misoprostol regimen is safe

up to 63 days, with partial at-home use).

7

‘background, competence, and expertise to assess

public health.’” FDA v. Am. Coll. of Obstetricians &

Gynecologists, 141 S. Ct. 578, 579 (2021) (quoting

South Bay United Pentecostal Church v. Newsom, 140

S. Ct. 1613, 1614 (2020) (Roberts, C. J., concurring));

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 142 (2000) (“[T]he FDA must determine that

there is a reasonable assurance that the product’s

therapeutic benefits outweigh the risk of harm.”); FDA

v. Am. Coll. Of Obstetricians & Gynecologists, 141 S.

Ct. 10, 12 (2021) (Alito, J., dissenting, with Thomas, J.

joining) (same).

As Sarah McNeilly, a third-year medical student at

the Albert Einstein College of Medicine, explains:

As a future physician, knowing that

courts may soon intervene with the

evidence-based decisions made by our

regulatory bodies like the FDA is gravely

concerning. The FDA is meant to be

independent, issuing guidance based

solely on clinical and scientific evidence.

When it comes to mifepristone, the

evidence is clear: it is safe and effective.

As physicians, we can and should be able

to rely on the FDA to guide our clinical

practice. If our faith in our regulatory

institutions is eroded, physicians will

suffer. This will, in turn, harm patients,

who are already struggling to navigate

mass medical misinformation. Having

such misinformation endorsed by the

courts would be extremely harmful to

8

patients, public health, and the practice

of medicine.

This case reveals the perils of courts supplanting

their scientific views for those of the FDA. By way of

example, the District Court stayed the FDA’s approval

of mifepristone based on its own review of “myriad

stories and studies brought to the Court’s attention,”

which courts (unlike the FDA) lack the scientific

expertise to apply. Pet. App. 177a. Indeed, the District

Court cited evidence on deaths and severe adverse

events after mifepristone that numerous courts have

rejected, 14 as well as studies on the mental health

consequences of abortion that have been scientifically

discredited. 15

Similarly, the Fifth Circuit cited the testimony of

doctors who treated incomplete medication abortions.

Pet. App. 19a–22a. But many of those doctors describe

14 Compare Pet. App. 170a (citing Aultman study), with Little

Rock Family Planning Serv. v. Rutledge, 397 F. Supp. 3d 1213,

1302–05 (E.D. Ark. 2019) (rejecting Aultman’s evidence on

medication abortions), aff’d 984 F.3d 682 (8th Cir.), vacated, 142

S. Ct. 2894 (2022); Planned Parenthood of Greater Iowa, Inc. v.

Miller, 30 F. Supp. 2d 1157, 1165, n. 9 (S.D. Iowa 1998) (holding

“[Aultman] has not performed an abortion since 1982 and is not

current on the medical aspects of abortion”), aff’d 195 F.3d 386

(8th Cir. 1999).

15 Compare Pet. App. 123a–124a (citing Coleman and Reardon

studies), with Planned Parenthood of Ind. & Ky., Inc. v. Comm’r,

Ind. State Dep’t of Health, 896 F. 3d 809, 826 (7th Cir. 2018)

(describing Coleman study as “controversial and much

maligned”), vacated, 141 S. Ct. 184 (2020); Planned Parenthood

of Wis., Inc. v. Schimel, 806 F. 3d 908, 922 (7th Cir. 2015)

(rejecting Reardon and Coleman study).

9

“adverse effects” such as “very heavy bleeding followed

by significant abdominal pain and a fever”—

symptoms that are to be expected. Pet. App. 20a. A

patient who follows a mifepristone-misoprostol

regimen is expected to experience cramping and

bleeding, much like a patient who experiences a

miscarriage. 16 Some may also require procedural

abortions, as the Fifth Circuit found, but that risk is

exceedingly rare with an occurrence rate of under 0.01

percent. 17 Contrary to the Fifth Circuit’s view, the

FDA’s impugned actions do not increase that risk.

When courts supplant an agency’s scientific

analysis with their own, they step beyond their role

and risk damaging evidence-based medicine in this

country. See FCC v. Prometheus Radio Project, 592

U.S. 414, 423 (2021) (holding a court cannot

“substitute its own policy judgment for that of the

agency”); Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019)

(Gorsuch J., concurring, with Thomas and Kavanaugh

JJ. joining) (“[C]ourts should pay close attention to an

expert agency’s views on technical questions in its

field.”). That is why this Court has repeatedly held

that during challenges to an agency’s expert analysis,

“particularly concerning the nature of the data relied

upon, the role of courts in reviewing arbitrary and

capricious challenges is to ‘simply ensur[e] that the

agency has acted within a zone of reasonableness.’”

Biden v. Missouri, 595 U.S. 87, 96 (2022) (quoting

16 Mitchell D. Creinin et al., Medication Abortion Up to 70 Days

of Gestation, AM. COLL. OBSTETRICIANS & GYNECOLOGISTS PRAC.

BULL. NO. 225 (Oct. 2020), https://shorturl.at/dhI12.

17 Id.

10

Prometheus Radio Project, 592 U.S. at 423).

Otherwise, as occurred here, courts risk undermining

the very purpose of empowering agencies to make

decisions based on their subject-matter expertise.

II.

Medical schools must be permitted to

teach evidence-based medicine.

Medical school curricula in the United States are

premised on evidence-based medicine, teaching

students to use the scientific method combined with

clinical experience to arrive at the best medical

decisions for their patients. 18 If courts can upend the

FDA’s evidence-based regulation of medications, the

ability of medical schools in the United States to offer

evidence-based teaching will be impaired.

A. It is essential that medical schools in the United

States offer evidence-based medical curricula. Armed

with a strong scientific foundation, medical students

must be taught to care for patients based on principles

derived from published evidence, national and

international guidelines, medical society consensus,

and clinical experience, all with the goal of improving

medical outcomes based on the highest quality

evidence available. 19

Numerous studies have demonstrated the benefits

of an evidence-based medical education on patient

18 See Steven Tenny & Matthew Varacallo, Evidence Based

Medicine, STATPEARLS PUBL’G (Oct. 24, 2022) (“Evidence-based

medicine (EBM) uses the scientific method to organize and apply

current

data

to

improve

healthcare

decisions.”),

https://rb.gy/3nxyo.

19 Id.

11

care and outcomes. 20 Accordingly, the Association of

American Medical Colleges’ Medical School Objectives

Project concluded that, upon graduation, medical

students “must understand the scientific basis and

evidence of effectiveness for each of the therapeutic

options that are available for patients at different

times in the course of the patients’ conditions, and be

prepared to discuss those options with patients in an

honest and objective fashion.” 21

Teaching evidence-based medicine is not only

valuable; it is mandatory. The Liaison Committee on

Medical Education requires accredited medical

schools to select curricular content that teaches

students how scientific research “is conducted,

evaluated, explained to patients, and applied to

patient care,” and “provides opportunities for medical

students to acquire skills of critical judgment based on

evidence and experience, and develops medical

students’ ability to use those principles and skills

20 See Laura Menard et al., Integrating evidence-based medicine

skills into a medical school curriculum: a quantitative outcomes

assessment, 26 BMJ EVIDENCE BASED MED. 249 (2020); Josephine

L. Dorsch, et al., Impact of an evidence-based medicine

curriculum on medical students’ attitudes and skills, 92 J. MED.

LIBR. ASS’N 397 (2004).

Med. School Objectives Writing Grp., Learning Objectives for

Medical Student Education— Guidelines for Medical Schools:

Report I of the Medical School Objectives Project, 74 ACAD. MED.

13, 16 (1999).

21

12

effectively in

disease.” 22

solving

problems

of

health

and

B. Judicial interference with the FDA’s regulation

of mifepristone—based on rigorous review and

scientific consensus—runs counter to the evidencebased curricula that medical schools in this country

are entrusted to teach.

Hanna Amanuel, a medical student at Harvard

Medical School, fears being restricted in providing

evidence-based care to her patients:

I came to medical school to develop the

skills to support people, especially people

who are least cared for in the US medical

system. At a basic level, this means using

the most safe and effective medications

and treatments available, and scientific

research, to guide healthcare decisions.

Mifepristone is safely used in 96

countries around the world and is safely

taken at home. It troubles me that my

peers and I might be in a position where

we cannot prescribe a medication for use

on terms that we know based on the

evidence to be safe and effective.

If this Court affirms the Fifth Circuit’s decision,

thereby reinstating medically unnecessary and

outdated restrictions on mifepristone, medical schools

Liaison Committee on Medical Education, Functions and

Structure of a Medical School (Nov. 2023), at 10,

http://bit.ly/47LxI29.

22

13

will be left with the impossible task of teaching

students to provide evidence-based care, but to

potentially disregard the current scientific evidence

when doing so is judicially mandated. See Weinberger

v. Bentex Pharms., Inc., 412 U.S. 645, 653–54 (1973)

(holding that evaluating “reports as to the reputation

of drugs among experts in the field is not a matter well

left to a court without chemical or medical

background”).

As Danna Ghafir, a medical student at the

University of Texas McGovern Medical School,

describes:

We are expected to learn comprehensive

reproductive

healthcare,

including

abortion care, which is tested on our

national exams, and most importantly,

applied in practice to achieve the best

possible patient outcomes.

According

to

our

evidence-based

textbooks, which pull from a plethora of

peer-reviewed

clinical

research,

medication abortion is most effective

when mifepristone and misoprostol are

taken in combination. The management

of some miscarriages or early pregnancy

complications also calls for mifepristone

in combination with misoprostol to

maximize patient safety during uterine

evacuation. When abortion care is

restricted, physicians and care teams are

prevented from employing best practices

14

supported by decades of accumulated

scientific evidence.

Medical schools teach students to review clinical

studies under controlled conditions (used by the FDA

prior to the 2000 approval of mifepristone), as well as

data based on real-world use and reporting (used by

the FDA to modify mifepristone’s label and REMS). 23

As one study of over 40,000 clinical trials and 5.6

million real-world health records showed, evidencebased medicine is greatly benefited by real-world data

that more accurately reflects real-world conditions,

combinations of drugs, and demographics including

clinically vulnerable users. 24

The Fifth Circuit’s preferred scientific method—

focused on clinical studies over real-world data—is

incompatible with these core principles of evidencebased medicine. For example, the Fifth Circuit faulted

the FDA for purportedly failing to require clinical

studies of the cumulative effect of the modifications or

consider whether to collect clinical data on non-fatal

adverse events, notwithstanding that the FDA had

collected such data for over a decade from millions of

real users of mifepristone. Pet. App. 53–54a.

Reverting to mifepristone’s regulations as of 2000,

before the FDA had decades of real-world data on the

23 Tenny & Varacallo, supra note 18.

Yen Yi Tan et al., Comparing clinical trial population

representativeness to real-world populations: an external validity

analysis encompassing 43 895 trials and 5 685 738 individuals

across 989 unique drugs and 286 conditions in England, 3

LANCET 674 (2022).

24

15

drug’s safe and effective use, would undermine the

evidence-based curricula that our medical schools are

entrusted and required to teach.

C. Judicial interference with evidence-based

medicine undermines another central tenet of medical

school curricula: to teach medical students to follow

principles of medical ethics in caring for patients. 25

Although the precise content of ethical curricula

varies among medical schools, 26 the four commonly

accepted principles of medical ethics are respect for

autonomy (respecting and supporting autonomous

decisions); nonmaleficence (avoiding causation of

harm); beneficence (relieving, lessening, or preventing

harm, providing benefits, and balancing benefits

against risks and costs); and justice (fairly

distributing benefits, risks, and costs). 27

25 See Liaison Committee on Medical Education, Functions and

Structure of a Medical School, at 11, https://rb.gy/uur42

(requiring accredited medical schools to “ensure that the medical

curriculum includes instruction for medical students in medical

ethics and human values both prior to and during their

participation in patient care activities and require medical

students to behave ethically in caring for patients and in relating

to patients’ families and others involved in patient care”).

26 See Lisa S. Lehmann et al., A Survey of Medical Ethics

Education at U.S. and Canadian Medical Schools, 79 ACAD. MED.

682 (2004).

Tom L. Beauchamp & James F. Childress, Principles of

Biomedical Ethics (8th ed. 2019); Thomas R. McCormick et al.,

Principles of Bioethics, UNIV. OF WASH. MED., DEP’T BIOETHICS &

HUMAN. (last visited Jan. 24, 2024), https://rebrand.ly/zs1l6gb.

27

16

As Rose Al Abosy, M.D., explains:

Restricting the option of mifepristone

would seriously undermine my medical

training. Medical school teaches us to use

rigorously

defined

evidence-based

practice along with compassionate

counseling to decide with our patients

the treatment that works best for them.

If mifepristone is no longer as accessible,

then I can no longer offer some patients

this accepted standard of care, even

though my medical training teaches that

mifepristone is an extremely safe and

effective option, and even though many

patients prefer medical abortions over

procedural abortions. This outcome

would contradict the basic principles of

my medical training.

Similarly, as Ashley Hurd-Jackson, a third-year

medical student in Iowa, describes:

Mifepristone allows patients to have an

effective, safe, and non-invasive option

for abortion and managing miscarriage.

Providing a medication option to patients

increases access to care. More than onethird of Iowa’s counties are considered

rural, where patients face several

barriers to receiving in-person care.

Mifepristone allows mitigation of both

delays and access to care in rural areas

with the option of providing this

treatment via telemedicine.

17

Already, I have encountered several

incredibly difficult decisions that women

have had to make. These are pregnancies

that these women have prayed for,

planned for, cried tears of joy for. I have

handed tissues to a patient that was

recently diagnosed with cervical cancer

who had to decide if she wanted to

continue her pregnancy while receiving

cancer treatment. I helped care for

another patient after she was run over by

a vehicle and sustained injuries that led

to her losing the twins she was pregnant

with. Let us start by referring to abortion

as what it truly is – healthcare.

Imposing medically unnecessary restrictions on a

treatment option that is not only safe and effective,

but also one that some patients prefer, conflicts with

the principles of evidence-based and ethical care that

medical students are taught to uphold. 28

III.

Clinical and residency programs must be

permitted to provide evidence-based

training.

Clinical and residency programs in the United

States must be permitted to train future physicians to

provide evidence-based care. Restricting access to

mifepristone, contrary to the weight of scientific

See Basil Varkey, Principles of Clinical Ethics and Their

Application to Practice, 30 MED. PRINCIPLES & PRAC. 17, 18

(2021); World Health Org., Medical management of abortion

(2018), at 1–2, https://rb.gy/nmino.

28

18

evidence, jeopardizes the quality of evidence-based

training that residents, particularly those in

obstetrics and gynecology (OB/GYN), can receive in

the United States.

A. Imposing medically unnecessary restrictions on

mifepristone hinders the ability of clinical and

residency programs to train future physicians on all

evidence-based standards for abortion care and

miscarriage management. Medical students and

residents across the country have expressed a strong

desire for abortion care training. One study found that

96 percent of medical students indicated that abortion

education was appropriate in the preclinical and

clinical curricula, and 84 percent found it to be

worthwhile or valuable. 29 Numerous studies also show

that residents who receive routine abortion training

are more skilled in miscarriage management. 30

Without comprehensive reproductive healthcare

training, physicians across specialities will be less

equipped to care for their patients.

Rose Al Abosy, M.D., describes the importance of

her medication abortion training at Boston University

School of Medicine as follows:

The first time I learned about

mifepristone was in my pre-clinical

courses, which all medical students take

29 See Eve Espey et al., Abortion education in the medical

curriculum: a survey of student attitudes, 77 CONTRACEPTION

205, 206 (2008).

30 Rachel R. Peachman, Dobbs Decision Threatens Full Breadth

of Ob-Gyn Training, 328 J. AM. MED. ASS’N 1668, 1668 (2022).

19

regardless of the area of medicine they

will specialize in. Specifically, I learned

about mifepristone during a lecture on

abortion options, including both medical

and procedural abortion. I continued to

learn about mifepristone during my

OB/GYN rotation as a third-year medical

student, when I saw it administered to a

number of patients to manage abortion

and miscarriage. Then, as a fourth-year

medical student, I completed a rotation

in family planning and offered

medication and procedural abortion to

patients myself as part of options

counseling.

This training was absolutely helpful for

my practice. Knowing how to talk

through medical and procedural options

for abortion and miscarriage is a critical

skill set, not only for OB/GYN doctors,

but for anyone practicing medicine. If a

patient comes to you for issues unrelated

to reproductive health and has a history

of abortion or miscarriage, having

reproductive

health

training

is

important because your job as a

physician is to care for the patient as a

whole.

B. Amidst declining access to abortion care

training across the country, it is essential that the

clinical and residency programs that do provide this

training be permitted to teach globally accepted

20

standards of care based on the best available, up-todate scientific evidence.

The imposition of medically unnecessary

restrictions on mifepristone—such as reducing the

label’s indicated period of use from ten weeks of

pregnancy to only seven weeks and requiring three inperson doctor visits—would make a safe and effective

drug less accessible. JA. 293–300. In turn, clinical

training opportunities on counseling patients on

mifepristone as an option, as well as providing this

standard of care, would also become less accessible.

As fourth-year medical student at the University of

Texas McGovern Medical School, Danna Ghafir,

explains:

At the time I completed my OB/GYN

clinical rotation at a hospital in Texas,

several restrictions on abortion care were

already in effect in Texas, and access to

mifepristone was restricted despite its

well-established safety profile. We had

patients present to the emergency room

with early pregnancy complications and

inevitable spontaneous abortions, which

we managed with misoprostol alone.

My

textbooks

taught

me

that

mifepristone in combination with

misoprostol has better efficacy in certain

cases than misoprostol alone, so I asked

my attending why we weren’t using

mifepristone as well. The attending

responded that although it would be

21

ideal to give the two medications in

combination, the REMS on mifepristone

influenced the hospital’s decision to stop

carrying mifepristone altogether. Even

though I was taught a mifepristonemisoprostol management protocol, we

were unable to offer that option.

If access to mifepristone is restricted by

the courts, trainees nationwide could

have less access to experiential learning

on the highest quality, evidence-based

management

protocols

involving

mifepristone.

Abortion care training is required for the

accreditation

of

OB/GYNs.

Currently,

the

Accreditation Council for Graduate Medical Education

(“ACGME”) requires OB/GYN residency programs to

provide “clinical experience or access to clinical

experience in the provision of abortions as part of the

planned curriculum,” and if doing so would be

unlawful, to “provide access to this clinical experience

in a different jurisdiction where it is lawful.” 31

Further, the ACGME requires specific training on

medication abortion methods and management of

abortion complications, as well as clinical experience

in spontaneous abortion, pregnancy loss, and uterine

Accreditation Council for Graduate Med. Educ., ACGME

Program Requirements for Graduate Medical Education in

Obstetrics and Gynecology (Sept. 17, 2022), at IV.C.7.a(4),

https://bit.ly/4b9hXoP.

31

22

evacuation in the operating room and outpatient

settings. 32

Already, residency training on abortion care is in

decline. It is predicted that in the aftermath of Dobbs

v. Jackson Women’s Health Org., 597 U.S. 215

(2022)—reversing federal constitutional protection for

the right to abortion—available placements for

abortion care training will be cut roughly in half. 33

Indeed, the data shows that medical students in

abortion-ban states are leaving to study in states

without restrictive abortion laws. 34

As a third-year medical student in Iowa, Alina

Beltrami, describes:

Abortion is healthcare. I am considering

moving to another state where I know

that I will be able to get the training that

I need to provide care to my patients. In

Texas, patients effectively need to be

septic to receive an abortion. In Idaho,

where I completed an OB/GYN clinical

rotation, physicians are very afraid that

if they do not provide abortions their

patients could die or lose their uterus,

32 Id. at IV.C.7–8.

33 Sarah McNeilly & Vivian Kim, A Call to Standardize Abortion

Education Across U.S. Medical Schools, ALBERT EINSTEIN COLL.

MED. (Jul. 7, 2022), https://shorturl.at/quFMX.

See Luci Hulsman et al., Impact of the Dobbs v. Jackson

Women’s Health Organization decision on retention of Indiana

medical students for residency, 5 AM. J OBSTETRICS &

GYNECOLOGY 101164 (Nov. 2023).

34

23

but if they do, they could lose their

license, their ability to pay off their

medical school loans, and their ability to

care for future patients. In Iowa, I would

be very hesitant to stay here for

residency if there is an abortion ban in

place, and I have classmates who will not

apply for residency in any states with

restrictive abortion laws.

As the data shows, states with restrictive abortion

laws have seen the number of residency applications

drop across specialties. Applications for OB/GYN

residency programs, in particular, have dropped by

10.7 percent in states that ban abortion and 7.1

percent in states with gestational limits on abortion. 35

In 2022, approximately 45 percent of all accredited

OB/GYN residency programs across the country were

in states certain or likely to ban abortion. 36 Since

abortion care training is a requirement for OB/GYN

accreditation, residents in abortion-ban states will

have to travel out-of-state for this training. 37 As access

35 See Kendal Orgera et al., Training Location Preferences of U.S.

Medical School Graduates Post Dobbs v. Jackson Women’s

Health, AM. ASS’N AM. MED. COLL. RSCH. ACTION INST. (Apr. 13,

2013), https://rb.gy/0tu9gc.

See Kavita Vinekar et al., Projected Implications of

Overturning Roe v Wade on Abortion Training in U.S. Obstetrics

and Gynecology Residency Programs, 140 OBSTETRICS &

GYNECOLOGY 146 (2022); see also Peachman, supra note 30, at

1668.

36

37 The Ryan Residency Training Program in Abortion & Family

Planning helps meet the ACGME mandate for routine abortion

training in OB/GYN residency programs, including by assisting

24

to abortion care training declines, there simply is “no

guarantee that enough slots would be available to

meet demand.” 38

It is therefore critical that the safe havens for

abortion care training in the United States be able to

offer

comprehensive

evidence-based

training,

including on prescribing mifepristone based on the

scientific evidence.

C. This case presents a significant risk of harming

the reputation of medical training in the United States

by setting a new precedent that the FDA’s evidencebased actions are subject to judicial second-guessing.

Dango Mwambene, a medical student at the

University of Cape Town, describes the following

concerns:

I have considered specialising or

subspecialising

in

obstetrics

and

gynaecology in the United States, but a

ruling restricting mifepristone and that

further federally limits access to abortion

significantly makes me reconsider this

possibility. I’d rather stay in South Africa

and specialise here or go elsewhere

in establishing partnerships between residency programs in

abortion-ban states and out-of-state facilities where their

residents can complete required training. See Univ. of Cal., S.F.,

The Kenneth J. Ryan Residency Training Program in Abortion &

Family Planning, BIXBY CTR. FOR REPROD. HEALTH (last visited

Jan. 28, 2024), https://shorturl.at/nvwD7.

38 See Nick Anderson, A race to teach abortion procedures, before

the bans begin, WASH. POST (Jun. 20, 2022), https://rb.gy/rz3px0.

25

where abortion access is constitutionally

protected.

Similarly, Hadiza Thompson, a recent medical

school graduate completing clinical training at the

University of Nigeria teaching hospital, shared the

following concerns:

The United States is considered a global

leader in providing the basic framework

for evidence-based medical education

and training around the world. I strongly

believe that if the United States no

longer abides by the evidence-based

medicine and ethics that it purports to

teach, then it will tarnish its reputation

and standing in the global medical

community.

I have also seen how restrictive abortion

laws impair medical training. In Nigeria,

abortion is illegal unless the pregnancy

poses an imminent risk of death. The

only reason I have training on

mifepristone is because I completed it in

another country, and I can hardly use my

training. When a patient had a

miscarriage, I had to collect her payment,

go to the pharmacy, pick up mifepristone,

and administer it to her at the hospital.

Those barriers mean very few patients

can access mifepristone, and very few

physicians have experience providing

this basic and even life-saving care.

26

In the United States, medical students and

graduates are grappling with the uncertainty around

their ability to provide evidence-based abortion care in

the future. As Rose Al Abosy, M.D., explains:

Now that the situation around abortion

training and access in this country is

growing increasingly dire, when I think

about my future practice as an OB/GYN,

I think about what it would be like to

practice in a different country. If abortion

options become very limited in the

United States and I am not permitted to

practice medicine here in the way that I

was trained, I would consider my options

for practicing elsewhere.

Medical students seeking to practice in the United

States and to train in this country’s prestigious

medical programs should not need to settle for

incomplete and scientifically inferior training on

reproductive healthcare. As the testimonials of

current and former medical students above illustrate,

judicial interference with the FDA’s regulation of

mifepristone would erode evidence-based medicine in

this country and have a detrimental impact on medical

education and training.

CONCLUSION

It is imperative to the quality and reputation of

medical education in the United States that medical

schools, clinical programs, and residency programs be

permitted to teach evidence-based medicine.

27

This Court should decline to impose medically

unnecessary restrictions on mifepristone, contrary to

the FDA’s scientific expertise, global consensus, and

the evidence-based medicine that our medical schools

and training programs are entrusted to teach.

This Court should reverse.

Respectfully submitted,

JAYME JONAT

Counsel of Record

CHARLOTTE BAIGENT

HOLWELL SHUSTER & GOLDBERG LLP

425 LEXINGTON AVENUE

New York, NY 10017

(646) 837-5120

jjonat@hsgllp.com

cbaigent@hsgllp.com

Counsel for Amicus Curiae

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.

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