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

Supreme Court briefFeb 28, 2024

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No. 23-235 & 23-236 VIDED

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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

Court Of Appeals For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF WOMEN AND FAMILIES

HARMED BY MIFEPRISTONE AND FORMER

ABORTION PROVIDERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------LINDA BOSTON SCHLUETER

Counsel of Record

TRINITY LEGAL CENTER

1150 N. Loop 1604 W., Suite 108-208

San Antonio, Texas 78248

210-274-5274

TLC4Linda@aol.com

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF THE AMICI

CURIAE ............................................................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

3

I.

THE FDA FAILED IN ITS RESPONSIBILITY TO ENSURE MIFREPRISTONE

WAS SAFE, AND THEREFORE, ITS ACTION WAS ARBITRARY AND CAPRICIOUS........................................................

3

A. The FDA Had Willful Blindness in

Failing to Appropriately Review and

Evaluate the Data and Studies on Mifepristone ..............................................

4

B. Although the FDA Acted in Willful

Blindness and Failed Its Responsibilities, Congress and the States Knew of

the Dangers and Risks of Mifepristone

and Attempted to Provide Warnings .....

7

C. The FDA’s Failures Had a Profound

and Devastating Impact on Women as

They Were Not Given Accurate and

Truthful Information to Make an Informed Decision That Is Required By

This Court ............................................ 14

ii

TABLE OF CONTENTS – Continued

Page

II. CHEMICAL ABORTIONS EXPOSE WOMEN

TO INCREASED RISKS OF PHYSICAL

AND PSYCHOLOGICAL HARM, AND

THEREFORE, THE FDA SHOULD HAVE

PROVIDED ADEQUATE WARNINGS

AND SAFETY MEASURES TO PROTECT WOMEN .......................................... 19

A. Scientific

and

Medical

Studies

Demonstrate That Chemical Abortions Present Increased Risks of Physical and Psychological Problems Thereby

Requiring Adequate Warnings ............... 19

B. Women Attest to the Trauma They Experienced as a Result of the RU-486

Regimen and Wish They Had Been

Given Accurate Information ................ 25

CONCLUSION..................................................... 31

APPENDICES

Appendix A: Affidavit of Leslie Wolbert .............. App. 1

Appendix B: Affidavit of Tammi Morris .............. App. 9

Appendix C: Affidavit of Carol Everett ............. App. 16

Appendix D: Affidavit of Monty Patterson,

father of Holly Patterson ............................... App. 24

iii

TABLE OF AUTHORITIES

Page

CASES

Alliance for Hippocratic Medicine v. FDA, ___

F.3d ___, 2023 U.S. App. LEXIS 8898 (5th Cir.

2023) ................................................................ 4, 5, 15

Gonzales v. Carhart, 550 U.S. 124 (2007) ...................25

Planned Parenthood v. Casey, 505 U.S. 833

(1992), overruled on other grounds, Dobbs v.

Jackson Women’s Health Organization, ___

U.S. ___, 142 S. Ct. 2228 (2022) .................. 14, 15, 25

Planned Parenthood of Indiana, Inc. v. Commissioner, 794 F. Supp. 2d 892 (S.D. Ind. 2011)..... 16, 17

Planned Parenthood v. Rounds, 686 F.3d 889

(8th Cir. 2012)..........................................................17

Women’s Medical Center v. Bell, 248 F.3d 411

(5th Cir. 2001)..........................................................24

STATUTES

5 U.S.C. § 706(2)(A) .......................................................4

21 U.S.C. § 393(b)(1) .....................................................3

21 U.S.C. § 393(b)(2)(B) ................................................3

iv

TABLE OF AUTHORITIES – Continued

Page

OTHER

Aamlid, I. B., Dahl, B., & Sommerseth, E.,

Women’s Experiences with Information Before

Medication Abortion at Home, Support During

the Process and Follow-up Procedures – A

Qualitative Study, 27 J. SWEDISH ASSOC. OF

MIDWIVES 100582 (2021) ...........................................5

Affidavit of Dr. Priscilla Coleman on file with

Trinity Legal Center (2013) ..................... 5, 14, 21-23

American Medical Association Code of Ethics,

Informed Consent, Opinion 2.1.1, available at

https://code-medical-ethics.ama-assn.org/ethicsopinions/informed-consent ......................................16

Coleman, A Tidal Wave of Published Data

(2010), available at https://www.afterabortion.

org/a-tidal-wave-of-published-data/ .........................5

Congressional Staff Report, The FDA and RU486: Lowering the Standard for Women’s

Health, prepared for the Chairman of the

House Subcommittee on Criminal Justice,

Drug Policy and Human Resources, at page 30

(Oct. 2006), available at http://old.usccb.org/

prolife/issues/ru486/SouderStaffReportonRU486.pdf ................................................................. 7-10

CRS Report for Congress, Abortion: Termination

of Early Pregnancy with RU-486 (Mifepristone) at 14 (Feb. 23, 2001) ................................. 26, 27

v

TABLE OF AUTHORITIES – Continued

Page

Dr. Theresa Burke, Psychotherapist and founder

of Rachel’s Vineyard, Address at the American

Association of Pro-Life OB-GYNS (AAPLOG)

meeting entitled “Medical Abortion: New

Emotional and Psychological Landscape”

(Jan. 28, 2011) ............................................. 22, 24, 26

Food and Drug Administration, Mifepristone

U.S. Postmarketing Adverse Events Summary

Through 04/30/2011 (July 2011), available

at http://www.fda.gov/downloads/Drugs/Drug

Safety/PostmarketDrugSafetyInformationfor

PatientsandProviders/UCM263353.pdf ........... 10, 11

Guttmacher Institute, Fact Sheet: Facts on Induced Abortions in the United States (Sept.

2019), available at http://www.guttmacher.org/

sites/default/files/factsheet/fb_induced_abortion.

pdf ...................................................................... 15, 16

Guttmacher Institute, Guttmacher Institute Releases 2020 Abortion Provider Census with

Important Data on US Abortion Landscape

Before the Fall of Roe (Dec. 1, 2022), available

at https://www.guttmacher.org/news-release/2022/

guttmacher-institute-releases-2020-abortionprovider-census-important-data-us ........................31

Guttmacher Institute, Number of Abortions in

the United States Likely to Be Higher in 2023

than in 2020 (Jan. 17, 2024), available at

https://www.guttmacher.org/news-release/2024/

number-abortions-united-states-likely-be-higher2023-2020 ................................................................31

vi

TABLE OF AUTHORITIES – Continued

Page

Kelly, T., et al., Comparing Medical Versus Surgical Termination of Pregnancy at 13–20

Weeks of Gestation: A Randomized Controlled

Trial, 117 BJOG 1512–1520 (2010) ..........................6

Lowenstein L., et al., Psychological Distress

Symptoms in Women Undergoing Medical vs.

Surgical Termination of Pregnancy, 28(1)

General Hospital Psychiatry 43–47 (2006) ..............5

MIFEPREX™ Label, available at http://www.

accessdata.fda.gov/drugsatfda_docs/label/2000/

20687lbl.htm .............................................................8

National Abortion Federation, Facts About Mifepristone (RU-486), available at http://www.

prochoice.org/about_abortion/facts/facts_

mifepristone.html ............................................. 26, 27

National Right to Life, “A Woman’s Right to

Know: Casey-style Informed Consent Laws,”

(2018), available at https://www.nrlc.org/uploads/stateleg/WRTKFactSheet.pdf........................11

Rafferty, K. A., & Longbons, T., #AbortionChangesYou: A Case Study to Understand the Communicative Tensions in Women’s Medication

Abortion Narratives [published online ahead

of print, Jun. 1, 2020], Health Commun. 1‐10

(2020) .........................................................................5

Report of the South Dakota Task Force to Study

Abortion 41-48 (Dec. 2005), available at

http://www.dakotavoice.com/Docs/South%20

Dakota%20Abortion%20Task%20Force%20

Report.pdf .......................................................... 13, 14

vii

TABLE OF AUTHORITIES – Continued

Page

Shuping, Harrison, & Gacek, Medical Abortion

with Mifepristone (RU-486) Compared to Surgical Abortion, available at http://rachelnetwork.

org/images/Medical_Abortion_with_Mifepristone.

pdf ...................................................................... 13, 20

Slade, P., et al., A Comparison of Medical and

Surgical Methods of Termination of Pregnancy: Choice, Psychological Consequences,

and Satisfaction with Care, 105 BRITISH J. OBSTETRICS AND GYNECOLOGY 1288-1295 (1998) ....... 5, 6

Texas Department of State Health Services

(DSHS), A Woman’s Right to Know Booklet

(2016), available at https://www.hhs.texas.gov/

sites/default/files/documents/services/health/

women-children/womans-right-to-know.pdf...........12

The Silent Scream, Former Abortionist Bernard

Nathanson, M.D. Warns of RU-486 Dangers,

available at http://www.silentscream.org/ru486drnat.htm .......................................................... 20, 21

1

The Amici respectfully submit this amicus curiae

brief in support of Respondents. This brief supporting

Respondent was prepared by counsel for Amici.1

---------------------------------♦---------------------------------

STATEMENT OF INTEREST

OF THE AMICI CURIAE

The women Amici who have taken RU-486,2 their

families, and former abortion providers have personal

knowledge as to how RU-486 negatively affects women

both physically and psychologically. The women Amici

attest that they were not given accurate and truthful

information about the risks of RU-486. Their interest

is that other women are not misled as they were and

to spare other women and families the grief and pain

associated with RU-486. The Amici are Carol Everett

(Texas) who had an abortion and was also an abortion

provider; Tammi Morris (Pennsylvania) who took RU486; Monty Patterson, whose daughter Holly Patterson

(California) died after taking RU-486; and, Leslie

1

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. Trinity

Legal Center is a nonprofit corporation and is supported through

private contributions of donors who have made the preparation

and submission of this brief possible. No person other than Amici,

their counsel, or donors to Trinity Legal Center made a monetary

contribution to its preparation or submission.

2

Throughout this brief, three terms have been used depending on the sources. Mifepristone is the one abortion drug; RU-486

is the two-drug abortion regimen; and, chemical abortion is used

in contrast to surgical abortion.

2

Wolbert (New York) who took RU-486. They urge this

Court to affirm the Court of Appeals for the Fifth Circuit decision.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

I.

The FDA must prove that it did not act arbitrarily

or capriciously. The FDA, however, had willful blindness in failing to appropriately review and evaluate

the data and studies on Mifepristone, and therefore,

acted in an arbitrary and capricious manner. A decade

before the FDA reduced its standards and warnings of

Mifepristone, the Congressional Staff Report on RU486 warned of its dangers and risks. Contrary to this

Court’s requirements, women were not given accurate

and truthful information to make an informed decision. Therefore, Amici urge this Court to protect

women and affirm the Court of Appeals’ decision.

II.

The RU-486 regimen used in chemical abortions

expose women to an increased risk of both physical and

psychological harm. This is supported by scientific and

medical studies that demonstrate this increased risk.

In addition, the women Amici attest to the physical

and psychological trauma they experienced as a result

of taking RU-486. Therefore, the lower court’s decision

should be upheld.

---------------------------------♦---------------------------------

3

ARGUMENT

I.

THE FDA FAILED IN ITS RESPONSIBILITY TO ENSURE MIFREPRISTONE WAS

SAFE, AND THEREFORE, ITS ACTION

WAS ARBITRARY AND CAPRICIOUS.

The stated responsibilities of the Food and Drug

Administration (FDA) are to (1) “promote the public

health by promptly and efficiently reviewing clinical

research and taking appropriate action on the marketing of regulated products in a timely manner”;3 and,

(2) “protect the public health by ensuring that . . . human and veterinary drugs are safe and effective.”4

These responsibilities are provided to the public

through the FDA’s website.5

The FDA failed its responsibilities by reducing the

safety standards for Mifepristone and not reviewing

the studies that demonstrate it is a dangerous drug

that can cause serious physical and psychological

harm including death. Had the FDA given “accurate,

science-based health information to the public” as it

was required to do, it would not have reduced the

standards and would have provided better warnings.

3

21 U.S.C. § 393(b)(1).

Id. § 393(b)(2)(B) (emphasis in original) (stating a court

could “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law”).

5

Food and Drug Administration, available at https://www.

usa.gov/agencies/food-and-drug-administration (2024).

4

4

A. The FDA Had Willful Blindness in Failing

to Appropriately Review and Evaluate

the Data and Studies on Mifepristone.

The FDA’s actions are held to an arbitrary and capricious standard.6 The Court of Appeals for the Fifth

Circuit determined that the FDA failed to carry its

burden that the FDA’s actions were not arbitrary and

capricious.7 The court stated that it had two principal

concerns.8 First, the FDA failed to review the relevant

data.9 Specifically, “it relied on zero studies that evaluated the safety-and-effectiveness consequences of the

2016 Major REMS Changes as a whole,”10 and thereby,

it failed to consider “an important aspect of the problem” when it made its 2016 changes.11

Second, the 2016 changes eliminated the requirement that non-fatal adverse events (complications)

must be reported to the FDA.12 Then in 2021 the FDA

declared that there were no non-fatal adverse reports,

and therefore, concluded that Mifepristone was safe.13

The court of appeals correctly concluded that this “ostrich’s-head-in-the-sand approach is deeply troubling”

6

5 U.S.C. § 706(2)(A).

Alliance for Hippocratic Medicine v. FDA, ___ F.3d ___,

2023 U.S. App. LEXIS 8898 at *46 (5th Cir. 2023).

8

Id.

9

Id.

10

Id. at *47.

11

Id.

12

Id.

13

Id.

7

5

particularly considering FDA’s own documents.14 This

makes the FDA’s actions arbitrary and capricious.

Over the years, there have been many studies

showing the dangers and psychological risks of Mifepristone and chemical abortions.15 But women did not

feel that they had been given adequate information.16

14

Id.

See, e.g., Rafferty, K. A., & Longbons, T., #AbortionChanges

You: A Case Study to Understand the Communicative Tensions in

Women’s Medication Abortion Narratives [published online ahead

of print, Jun. 1, 2020], Health Commun. 1‐10 (2020) (reporting

negative and difficult emotions following chemical abortions were

common, with 38% explicitly stating problems with anxiety, depression, drug abuse, and suicidal thoughts); Lowenstein L., et al.,

Psychological Distress Symptoms in Women Undergoing Medical

vs. Surgical Termination of Pregnancy, 28(1) General Hospital

Psychiatry 43-47 (2006) (finding greater psychological consequences of medical abortion); Slade, P., et al., A Comparison of

Medical and Surgical Methods of Termination of Pregnancy:

Choice, Psychological Consequences, and Satisfaction with Care,

105 BRITISH J. OBSTETRICS AND GYNECOLOGY 1288-1295 (1998) (finding difference between the two methods is the consciousness and

participation of the patient in the medical procedure in a process

that involves blood, pain, and death). See generally Coleman, A

Tidal Wave of Published Data (2010), available at https://www.

afterabortion.org/a-tidal-wave-of-published-data/ (citing hundreds

of studies published in major medicine and psychology journals

throughout the world).

16

See, e.g., Affidavit of Dr. Priscilla Coleman on file with

Trinity Legal Center (2013) (stating “If a woman obtains subsequent information, contradicting that provided by the abortion facility and used as the basis of her earlier abortion decision,

devastating psychological consequences become more probable”);

Aamlid, I. B., Dahl, B., & Sommerseth, E., Women’s Experiences

with Information Before Medication Abortion at Home, Support

During the Process and Follow-up Procedures – A Qualitative

Study, 27 J. SWEDISH ASSOC. OF MIDWIVES 100582 (2021)

15

6

Furthermore, there was a high rate of dissatisfaction

with chemical abortions and the surveyed women

would not choose it again.17

It was egregious enough when the FDA failed to

do its due diligence by not wanting the data, appropriately reviewing it, and considering the studies demonstrating the dangers of Mifepristone. The information

through both data and studies was known from the

FDA’s own information as well as from independent

researchers. Women considering chemical abortion deserve better from government agencies in whom the

public puts its trust to ensure drugs are safe.

However, it was equally egregious because of the

subsequent effect that its failures had. This had a

trickle-down negative effect because doctors did not

provide women with important information concerning the risks of Mifepristone. Thereby, women did not

have the necessary information to make an informed

decision. This Court has correctly required informed

(concluding that women felt information provided for chemical

abortion was inadequate, especially as related to bleeding and

pain).

17

Kelly, T., et al., Comparing Medical Versus Surgical Termination of Pregnancy at 13–20 Weeks of Gestation: A Randomized Controlled Trial, 117 BJOG 1512–1520 (2010) (finding 47%

of women who underwent chemical abortions indicated they

would not choose the method again and 53% felt the procedure

was worse than expected); Slade, P., et al., A Comparison of Medical and Surgical Methods of Termination of Pregnancy: Choice,

Psychological Consequences, and Satisfaction with Care, 105

BRITISH J. OBSTETRICS AND GYNECOLOGY 1288-1295 (1998) (stating

47% of women who had a chemical abortion would not choose the

same procedure again).

7

consent before an abortion. The Amici have indicated

that they did not have this information and they wish

it had been provided to them.18

B. Although the FDA Acted in Willful

Blindness and Failed Its Responsibilities, Congress and the States Knew of

the Dangers and Risks of Mifepristone

and Attempted to Provide Warnings.

Congress Recognized the Dangers of RU-486.

As early as 2006 the FDA knew there were serious

complications with Mifepristone. The Congressional

Staff Report for the House Subcommittee on Criminal

Justice, Drug Policy and Human Resources19 reviewed

what the FDA knew about the dangers and risks of

Mifepristone and its “dismal” outcomes. The Report

concluded that there were “startling adverse effects”20

and a “dismal result.”21

The FDA knew the RU-486 regimen posed a substantial risk to the physical health of women including

18

Affidavits of the women Amici.

Congressional Staff Report, The FDA and RU-486: Lowering the Standard for Women’s Health, prepared for the Chairman

of the House Subcommittee on Criminal Justice, Drug Policy and

Human Resources (Oct. 2006), available at https://aaplog.

wildapricot.org/resources/Souder%20Comm.%20Rprt_RU-486_

October%202006_converted%5B1%5D%20%281%29.pdf.

20

Id. at 30.

21

Id. at 31.

19

8

the risk of death. Both the FDA22 and Danco, the drug

manufacturer,23 acknowledged that RU-486 poses

health risks for women. The Mifeprex drug label

acknowledges that “[n]early all of the women who receive Mifeprex and misoprostol [the RU-486 regimen]

will report adverse reactions, and many can be expected to report more than one such reaction.”24 The

MIFEPREX™ Label listed adverse reactions including

abdominal pain, uterine cramping, nausea, vomiting,

diarrhea, pelvic pain, fainting, headache, dizziness,

and asthenia.25

The Congressional Staff Report cited FDA findings

concerning the physical risks to women taking the RU486 regimen.26 This longer list included: “abdominal

pain; uterine cramping; nausea; headache; vomiting;

22

Id. at 30 (citing FDA findings and reporting adverse reac-

tions).

23

See MIFEPREX™ Label, available at http://www.accessdata.

fda.gov/drugsatfda_docs/label/2000/20687lbl.htm.

24

See MIFEPREX™ Label, available at http://www.accessdata.

fda.gov/drugsatfda_docs/label/2000/20687lbl.htm; Congressional

Staff Report, The FDA and RU-486: Lowering the Standard for

Women’s Health, prepared for the Chairman of the House Subcommittee on Criminal Justice, Drug Policy and Human Resources, at page 30 (Oct. 2006), available at http://old.usccb.org/

prolife/issues/ru486/SouderStaffReportonRU-486.pdf.

25

MIFEPREX™ Label, available at http://www.accessdata.

fda.gov/drugsatfda_docs/label/2000/20687lbl.htm.

26

Congressional Staff Report, The FDA and RU-486: Lowering the Standard for Women’s Health, prepared for the Chairman

of the House Subcommittee on Criminal Justice, Drug Policy

and Human Resources, at page 30 (Oct. 2006), available at

https://aaplog.wildapricot.org/resources/Souder%20Comm.%20Rprt_

RU-486_October%202006_converted%5B1%5D%20%281%29.pdf.

9

diarrhea; dizziness; fatigue; back pain; uterine hemorrhage; fever; viral infections; vaginitis; rigors

(chills/shaking); dyspepsia; insomnia; asthenia; leg

pain; anxiety; anemia; leucorrhea; sinusitis; syncope;

endrometritis/salpingitis/pelvic inflammatory disease;

decrease in hemoglobin greater than 2 g/dL; pelvic

pain; and fainting.”27

The FDA’s Medical Officer’s review indicated that,

“[m]ore than one adverse event was reported for most

patients. . . . Approximately 23% of the adverse events

in each gestational age group were judged to be severe.”28 The Congressional Staff Report calls these

“startling adverse effects,” which the FDA knew during the RU-486 NDA review process.29

The Report also was concerned about “the incredibly high failure rate of the drug.”30 The FDA knew the

failure rate was averaging 14.6% in the U.S. trial testing the drug through 63 days gestation. The findings

were that 27% had ongoing pregnancies, 43% had incomplete abortions, 10% requested and had surgical

terminations, and the remaining 20% of patients had

surgical terminations performed because of medical

indications directly related to the chemical abortion

procedure.31

27

Id.

Id.

29

Id.

30

Id.

31

Id.

28

10

The Congressional Staff Report stated the “best”

outcome was in the patient group where the pregnancies were less than or equal to 49 days of gestation.32

In this group, the Report stated that 7.9% of patients

required surgical intervention after taking RU-486.33

The Report also stated that as “the gestational age increases, the failure rate of RU-486 increases rapidly, to

17% in the 50-56 days gestation group, and 23% in the

57- 63 days gestation group.”34 The Report concluded

that “By any objective standard, a failure rate approaching eight percent and requiring subsequent surgical intervention as the ‘best’ outcome is a dismal

result.”35

In 2011, the FDA had more data concerning the

adverse consequences of RU-486 and risk of death. The

FDA issued a report on the post-marketing events of

RU-486.36 The FDA reported that there were 2,207 adverse events (complications) in the United States related to the use of RU-486, including hemorrhaging,

blood loss requiring transfusions, serious infections,

and death.37 Among the 2,207 adverse events were 14

32

Id. at 31.

Id.

34

Id.

35

Id.

36

Food and Drug Administration, Mifepristone U.S. Postmarketing Adverse Events Summary Through 04/30/2011 (July

2011), available at http://www.fda.gov/downloads/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/

UCM263353.pdf.

37

Id.

33

11

deaths, 612 hospitalizations, 339 blood transfusions,

and 256 infections (including 48 “severe infections”).38

Even without data and studies by independent researchers, the FDA knew of the serious complications

of Mifepristone. Yet in 2016 and 2021, the FDA did not

require the reporting of complications and lowered the

standards. This was willful blindness and a failure of

its responsibilities to protect the public from dangerous drugs.

The States Knew of the Dangers of RU-486

Although the FDA failed its responsibilities, the

states attempted to explain the risks. The Woman’s

Right to Know laws were enacted to protect “a woman’s

right to know the medical risks associated with abortion, its alternatives, and nonjudgmental, scientifically

accurate medical facts about the development of her

unborn child before making this permanent and lifeaffecting decision.”39 Twenty-eight states have enacted

such laws.40

The states’ Departments of Health were responsible for “A Woman’s Right to Know” booklet which was

based on the medical board’s scientific medical

38

Id.

National Right to Life, “A Woman’s Right to Know:

Casey-style Informed Consent Laws,” (2018), available at

https://www.nrlc.org/uploads/stateleg/WRTKFactSheet.pdf (explaining the right to know laws).

40

Id. (providing a chart of state laws).

39

12

evidence concerning RU-486.41 The booklets provided

pictures of the baby at two-week internals and discussed the physical and psychological risks of surgical

and chemical abortion as compared to child birth.42

For example, the Texas Department of State

Health Services (DSHS) produced “A Woman’s Right to

Know” booklet which discusses the risks associated

with chemical abortions.43 Some of these risks include:

nausea, weakness, fever/chills, vomiting, headache, diarrhea or dizziness.44 There can be excessive bleeding

and hemorrhaging requiring blood transfusions or surgery.45 Severe infection is also a known risk following a

chemical abortion and can cause death.46 Three percent of chemical abortions fail and require surgery.47

About five of every 100 procedures results in a woman

going to the emergency room for care and treatment.48

41

For example, the Texas medical board held hearings and

obtained evidence on the risks of abortion.

42

Texas Department of State Health Services (DSHS),

A Woman’s Right to Know Booklet (2016), available at

https://www.hhs.texas.gov/sites/default/files/documents/services/

health/women-children/womans-right-to-know.pdf.

43

Id.

44

Id. at 16.

45

Id.

46

Id.

47

Id.

48

Id.

13

The risks associated with Mifepristone is greater than

that of surgical abortions.49

In the largest government study since Roe, the

South Dakota Task Force held extensive hearings and

heard from medical and scientific experts and postabortive women.50 The Task Force articulated a long

list of physical risks.51 These risks were both shortterm and long-term.52

The Task Force also heard extensive evidence from

distinguished experts and post-abortive women of the

psychological consequences of abortion.53 The Task

Force found that “there is a substantial discrepancy

between current medical and psychological information and the medical and psychological information

conveyed by abortion facilities (including Planned

49

See Shuping, Harrison, & Gacek, Medical Abortion with

Mifepristone (RU-486): Compared to Surgical Abortion (2007), available at https://www.lifeissues.net/writers/shu/shu_06mifepristone_

ru486.html.

50

Report of the South Dakota Task Force to Study Abortion

(Dec. 2005), available at http://www.dakotavoice.com/Docs/South

%20Dakota%20Abortion%20Task%20Force%20Report.pdf.

51

Id. at 48.

52

Id. (finding long-term risks include placenta previa, higher

rates of complications, and pre-term birth in subsequent pregnancies).

53

Report of the South Dakota Task Force to Study Abortion

41-48 (Dec. 2005), available at http://www.dakotavoice.com/Docs/

South%20Dakota%20Abortion%20Task%20Force%20Report.pdf.

14

Parenthood of South Dakota) to their abortion patients.”54

Citing the results of the four largest record-based

studies in the world, the Task Force stated that these

studies “have consistently revealed that women with a

known history of abortion experience higher rates of

mental health problems of various forms when compared to women without a known abortion history.”

The mental health consequences of abortion have included guilt, post-abortion anger and resentment,

anxiety, posttraumatic stress disorder (PTSD), psychological numbing, depression, suicidal ideation, substance abuse, relationship problems, and parenting

problems.55 Although the Task Force was focused on

abortion in general, it is known that the psychological

problems are magnified with chemical abortion.56

C. The FDA’s Failures Had a Profound and

Devastating Impact on Women as They

Were Not Given Accurate and Truthful

Information to Make an Informed Decision That Is Required By This Court.

In Planned Parenthood v. Casey,57 this Court emphasized the need for full, accurate, and truthful

54

Id. at 41.

Id. at 43-46 (citing studies).

56

Affidavit of Dr. Priscilla Coleman on file with Trinity Legal

Center (2013).

57

Planned Parenthood v. Casey, 505 U.S. 833 (1992), overruled on other grounds, Dobbs v. Jackson Women’s Health Organization, ___ U.S. ___, 142 S. Ct. 2228 (2022).

55

15

information so that a woman can make an informed

decision.58 This Court correctly stated that it is important for a woman to have this information because

of the “devastating psychological consequences” of

later realizing that she did not have accurate information or know the truth.59 The FDA’s failures thus

have a profound and devastating impact on women.

When the FDA argues that “Mifepristone is comparable to ‘ibuprofen,’ ”60 it is false and misleading. The

Court of Appeals for the Fifth Circuit correctly determined that “Mifepristone bears no resemblance to

ibuprofen.”61 In coming to this conclusion, the Court of

Appeals reviewed FDA’s own documents and the

“Black Box” warnings which is used when the drug

“may lead to death or serious injury.”62

Abortion statistics also emphasize the need for

accurate and truthful information because of the increased use of Mifepristone and more women are at

risk. Eighteen percent of pregnancies in 2017 ended in

abortion which was approximately 862,320 abortions.63

Chemical abortions accounted for 39% of all abortions

58

Id. at 882.

Id.

60

Alliance for Hippocratic Medicine v. FDA, ___ F.3d ___,

2023 U.S. App. LEXIS 8898 at *27 (5th Cir. 2023).

61

Id.

62

Id.

63

Guttmacher Institute, Fact Sheet: Facts on Induced Abortions in the United States (Sept. 2019), available at http://www.

guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.

pdf.

59

16

in 2017 which was an increase from 29% in 2014.64

Thus, even though the number of abortions decreased,

chemical abortions increased from 5% of all abortions

in 2001 to 39% in 2017.65 With the steady increase in

chemical abortions, it becomes even more important

that women have the facts about the drugs that they

are taking and what side effects and risks may occur.

To do any less would not be informed consent.

From a medical perspective, abortion should mandate informed consent like any other medical procedure. The American Medical Association states that

“Informed consent to medical treatment is fundamental in both ethics and law.”66 Furthermore, it states

that “Patients have the right to receive information

and ask questions about recommended treatments so

that they can make well-considered decisions about

care.”67 Because informed consent is “fundamental,” a

woman needs accurate information at this critical time

in her life.

Similarly from a legal perspective, one court

opined that women should be given factual information about the physical and psychological risks of

the RU-486 regimen.68 The court stated that the

64

Id.

Id.

66

American Medical Association Code of Ethics, Informed

Consent, Opinion 2.1.1, available at https://code-medical-ethics.

ama-assn.org/ethics-opinions/informed-consent.

67

Id.

68

Planned Parenthood of Indiana, Inc. v. Commissioner, 794

F. Supp. 2d 892, 918 (S.D. Ind. 2011).

65

17

purpose of informed consent provisions is to “serve not

only to communicate information that would not necessarily be known to the patient, but also help the

woman to make a fully informed decision.”69 Therefore,

women should know they are exposed to increased

risks of physical and psychological complications by

taking the RU-486 regimen.70

Although this is “fundamental,” Amici contend

and have experienced the fact that women are not

given accurate information.71 Amici Leslie Wolbert

states in her affidavit that no one told her “how scary

it would be to experience this alone at home,” or that

she would feel “a deep loss.”72 She attests that:

These things just weren’t discussed, yet they

had great effects on me then and still do today.

Women need to be counseled about all of their

choices when it comes to an unplanned pregnancy, and not ushered into choosing one that

is most convenient at the time. The truth needs

to be told; it is far too great of a matter for it

to continue to be handled the way it has been.73

69

Id.

Planned Parenthood v. Rounds, 686 F.3d 889, 898 (8th Cir.

2012) (holding disclosure that an increased risk of suicide ideation and suicide is non-misleading and relevant to the patient’s

decision to have an abortion and other psychological distress was

not challenged).

71

See Affidavit of Leslie Wolbert, Appendix A; Affidavit of

Tammi Morris, Appendix B; and Affidavit of Monty Patterson,

Appendix D.

72

Affidavit of Leslie Wolbert, Appendix A, ¶ 22.

73

Id.

70

18

Amici Tammi Morris also lacked information. She

states the clinic said that “my chemical abortion would

be simple, safe, and mostly painless. It would be a little

more than a menstrual cycle. They did not prepare me

for what was to come.”74 She states: “This was unexpected because the clinic only told me the benefits and

not the risks.”75 She said that seeing her dead baby

that she had expelled was devastating.76

Amici Carol Everett was both a consumer and a

provider.77 At one time, she was involved in the operation of four clinics with a fifth scheduled to open and

oversaw 35,000 abortions.78 She was Dallas’ largest

abortion chain owner.79 She attests that abortion facilities lie to women about the physical and psychological

risks and what will actually occur when they take the

drug.80 In addition, the abortion facilities do not speak

accurately that it is a baby but say it is only a “product

of conception,” a “blood clot,” or, a “piece of tissue.”81

This is what causes such psychological trauma because

she sees it is a baby that she has expelled in the toilet

or shower.82

74

Affidavit of Tammi Morris, Appendix B, ¶ 3.

Id. at ¶ 4.

76

Id. at ¶¶ 17, 21.

77

Affidavit of Carol Everett, Appendix C, ¶ 2.

78

Id.

79

Id.

80

Id. at ¶ 22.

81

Id. at ¶ 20.

82

Id. at ¶ 21.

75

19

In the case of Holly Patterson, her father describes

the “pain experience” for their family after Holly took

RU-486.83 He states that “Women need to have accurate and factual information regarding the potential

risks of severe and life threatening side-effects.”84

Holly was not given that information.85 He concludes:

“No woman should risk her life or her health because

she lacks factual and accurate medical abortion information to make a well-informed decision when terminating an early pregnancy with mifepristone (RU-486)

and misoprostol.”86

II.

CHEMICAL ABORTIONS EXPOSE WOMEN

TO INCREASED RISKS OF PHYSICAL AND

PSYCHOLOGICAL HARM, AND THEREFORE, THE FDA SHOULD HAVE PROVIDED

ADEQUATE WARNINGS AND SAFETY

MEASURES TO PROTECT WOMEN.

A. Scientific and Medical Studies Demonstrate That Chemical Abortions Present

Increased Risks of Physical and Psychological Problems Thereby Requiring Adequate Warnings.

Physical Risks of RU-486

In reviewing and assessing the scientific literature, researchers have concluded that there are

83

Affidavit of Monty Patterson, Appendix D, ¶ 3.

Id.

85

Id.

86

Id. ¶ 74.

84

20

increased risks of physical problems with the RU-486

regimen.87 These include: more pain, more nausea or

vomiting, higher failure rate, greater risks of acute

bleeding requiring surgery, post-procedure bleeding

continues for a longer period of time, more women require surgery for persistent bleeding, more total blood

loss, and greater risk of massive, life-threatening hemorrhage.88 They also report that “Mifepristone abortion

has 10 times more risk of death from infection than

surgical abortion and 50 times more risk of death from

infection compared to childbirth.”89

The risks of RU-486 are not only with the current

pregnancy but may be transgenerational. Dr. Bernard

Nathanson, co-founder of the National Association for

the Repeal of Abortion Laws (NARAL) and who presided over 60,000 abortions, warned that if a woman

starts taking the regimen but then changes her mind

and wants to carry the baby to term, the newborn may

have serious deformities.90

In addition, Dr. Nathanson warned there may be

the possibility that disorders could be passed down to

surviving offspring of women who have taken the

87

Shuping, Harrison, & Gacek, Medical Abortion with Mifepristone (RU-486) Compared to Surgical Abortion, available at

http://rachelnetwork.org/images/Medical_Abortion_with_Mifepristone.

pdf.

88

Id.

89

Id. (citations omitted).

90

The Silent Scream, Former Abortionist Bernard Nathanson, M.D. Warns of RU-486 Dangers, available at

http://www.silentscream.org/ru486-drnat.htm.

21

drug.91 “RU-486 is the drug which acts on the female

reproductive system, and anything that does that we

have to be keenly aware of what are called transgenerational effects.”92

Psychological Risks of RU-486

The RU-486 regimen also has increased risks for

psychological problems. In scientific studies, women

rated chemical abortions more stressful and experienced more disruptions in their lives.93 They also experienced a significant decline in self-esteem and higher

PTSD intrusion scores.94

There are at least five major reasons why women

are at greater risk of more severe psychological trauma

with the RU-486 regimen than with a surgical abortion.95 First, the woman has a participatory role with a

chemical abortion which may cause greater psychological trauma.96 This is because the woman is directly responsible for the abortion which may exacerbate guilt

and other negative feelings.97

91

Id.

Id.

93

Affidavit of Dr. Priscilla Coleman on file with Trinity Legal

Center (2013) (citing scientific studies).

94

Id.

95

Id.

96

Id.

97

Id.

92

22

The RU-486 regimen is a very difficult process and

simply adds to emotional consequences. Unlike surgical abortion, the woman acts as the abortionist.98 The

drug is self-administered by her own hand and there is

no one else to blame or project anger on such as the

abortionist or others.99 Because the woman plays an

active role in the procedure and is conscious of each

step, it is more likely that there will be psychological

consequences.100 Here is one of the profound differences between surgical and chemical abortion. In a

surgical abortion, the woman is usually given drugs to

be relaxed or to wake up after the procedure is complete. With RU-486, however, “she will have a memory

of each step and its effects on her body and the body of

her child. She cannot close her eyes to the process and

tell herself that someone else is doing this to her . . .

Simply looking in the mirror can become a triggering

event.”101

Second, chemical abortion requires the woman to

be more alert and involved during the process.102

98

Dr. Theresa Burke, Psychotherapist and founder of Rachel’s Vineyard, Address at the American Association of Pro-Life

OB-GYNS (AAPLOG) meeting entitled “Medical Abortion: New

Emotional and Psychological Landscape” (Jan. 28, 2011).

99

Id.

100

Id.

101

Id.

102

Affidavit of Dr. Priscilla Coleman on file with Trinity Legal Center (2013).

23

Therefore, it is impossible for her to distance herself

psychologically from the abortion.103

Third, there is a greater potential for the woman

to see her expelled unborn child.104 There is no doubt

in her mind that she has taken the life of her unborn

child.

Fourth, although women usually say that they

choose a chemical abortion because it is in the privacy

of her home, it is that privacy that can also lead to

greater trauma.105 This is because the woman is more

likely to be at home and alone. Thus, it is likely that

she is without emotional support at the time of the

abortion.106

Fifth, the woman’s home becomes a trigger point

for negative emotions instead of being a place of refuge.107 This is because she is at home and more specifically in the bathroom. Therefore, her home and the

bathroom are associated with the abortion that she

participated in, in a major and very visual way.

The trauma continues because the woman’s home

becomes a daily trigger. Instead of being a sanctuary

or refuge, the home is a trigger for the abortion

103

Id.

Id.

105

Id.

106

Id.

107

Id.

104

24

experience108 because she is in her home and specifically the bathroom or bedroom. Women who take the

RU-486 regimen do “not have the luxury of using the

normal coping mechanisms, like avoidance of their

abortion clinic and doctors. . . .”109 These coping mechanisms allow her to distance herself from “the painful

reality of what she has done.”110 Therefore, this “traumatic scene will be accessible each time a woman uses

her bathroom, lays on her bed, or any other associations they make while waiting for the pill to do its job.

Her very home becomes a daily trigger to traumatic

feelings and sensations.”111

The courts also have recognized the negative psychological impact that abortion has on women. For example, the Court of Appeals for the Fifth Circuit cited

testimony that abortion as practiced is “almost always

a negative experience for the patient. . . .”112 This

Court has recognized that abortion:

. . . is an act fraught with consequences for

others; for the woman who must live with the

implications of her decision; for the persons

who perform and assist in the procedure; for

108

Dr. Theresa Burke, Psychotherapist and founder of Rachel’s Vineyard, Address at the American Association of Pro-Life

OB-GYNS (AAPLOG) meeting entitled “Medical Abortion: New

Emotional and Psychological Landscape” (Jan. 28, 2011).

109

Id.

110

Id.

111

Id.

112

Women’s Medical Center v. Bell, 248 F.3d 411, 418 (5th

Cir. 2001).

25

the spouse, family, and society which must

confront the knowledge that these procedures

exist, procedures some deem nothing short of

an act of violence against innocent human life;

and depending on one’s beliefs, for the life or

potential life that is aborted.113

More recently, this Court recognized, “whether to

have an abortion requires a difficult and painful moral

decision” and is “fraught with emotional consequences.”114 In addition, women can suffer from depression, regret, guilt, and a loss of self-esteem following

an abortion.115 As Justice Ginsburg wrote, “The Court

is surely correct that, for most women, abortion is a

painfully difficult decision.”116

B. Women Attest to the Trauma They Experienced as a Result of the RU-486

Regimen and Wish They Had Been

Given Accurate Information.

The courts and the scientific research support

the conclusion that there are negative physical and

psychological consequences of abortion on women and

particularly the RU-486 regimen. But it is the real life

113

Planned Parenthood v. Casey, 505 U.S. 833, 852 (1991),

overruled on other grounds, Dobbs v. Jackson Women’s Health

Organization, ___ U.S. ___, 142 S. Ct. 2228 (2022).

114

Gonzales v. Carhart, 550 U.S. 124, 159 (2007).

115

Id.

116

Id. at 184 n.7 (Ginsburg, J., dissenting).

26

experiences of women that bring to light the true impact of this dangerous drug regimen.117

The RU-486 regimen exacerbates the impact because it takes longer than surgical abortion. The RU486 regimen process is generally over a two week period, and therefore, much longer than a surgical abortion which is completed on the same day in

approximately fifteen minutes.118 On Day 1, the patient

reads the Medication Guide, reads and signs the patient agreement, and then swallows three tablets of

Mifeprex in the presence of a health professional.119 On

Day 3, she is supposed to return to the abortion facility

and be examined to determine if she is still pregnant.120 If she is pregnant, she is given two tablets of

117

See, e.g., Affidavit of Leslie Wolbert, attached as App. A;

Affidavit of Tammi Morris, attached as App. B.

118

Dr. Theresa Burke, Psychotherapist and founder of Rachel’s Vineyard, Address at the American Association of Pro-Life

OB-GYNS (AAPLOG) meeting entitled “Medical Abortion: New

Emotional and Psychological Landscape” (Jan. 28, 2011).

119

CRS Report for Congress, Abortion: Termination of Early

Pregnancy with RU-486 (Mifepristone) at 14 (Feb. 23, 2001),

available at http://www.law.umaryland.edu/marshall/crsreports/

crsdocuments/RL30866.pdf (discussing the process and history

of RU-486), see also National Abortion Federation, Facts About

Mifepristone (RU-486), available at http://www.prochoice.org/

about_abortion/facts/facts_mifepristone.html (describing the process).

120

CRS Report for Congress, Abortion: Termination of Early

Pregnancy with RU-486 (Mifepristone) at 14 (Feb. 23, 2001) (discussing the process and history of RU-486), available at

http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/

RL30866.pdf.

27

misoprostol.121 However, this is not the experience of

these post-abortive women as they are given a “brown

bag of pills” to be taken at home.122 On Day 14, she is

supposed to return to the abortion facility for a followup visit to confirm the pregnancy has been terminated

and assess the level of bleeding.123 This also may not be

the case if she has had to go to the emergency room due

to hemorrhaging or infection. Just by the mere method

of the RU-486 regimen, the woman’s ordeal is prolonged over at least a two-week period in contrast to

the surgical abortion procedure which is usually over

in 15 minutes.

Although the abortion facility may generally tell a

woman what the regimen will be, the women are not

prepared for what is truly involved. For example, Amici

Leslie Wolbert attests that “Nothing could have prepared me for what I would experience, or the emotional

pain that I would carry for years.”124 She “trusted the

121

Id.

Affidavit of Tammi Morris, attached as App. B. The National Abortion Federation admits that there may not be a second

visit to the clinic but that the drugs may be taken at home. National Abortion Federation, Facts About Mifepristone (RU-486),

available at http://www.prochoice.org/about_abortion/facts/facts_

mifepristone.html.

123

CRS Report for Congress, Abortion: Termination of Early

Pregnancy with RU-486 (Mifepristone) at 14 (Feb. 23, 2001) (discussing the process and history of RU-486), available at

http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/

RL30866.pdf.

124

Affidavit of Leslie Wolbert, attached as App. A, ¶ 2.

122

28

clinic.”125 They referred to the baby as “just a blob of

tissue.”126 When the clinic workers counseled her, they

told her about the abortion pill and “how ‘simple’ it was

and that you didn’t have to go through surgery, but

that you would have a heavy period instead.”127

But Leslie quickly learned that what she had been

told was not accurate or truthful information. “It was

the second day that I experienced the worst pain I’ve

ever felt in my life. The experience wasn’t just a heavy

period. I was bleeding like I never knew possible.”128

She goes on to say that “ . . . the cramps were not just

severe --- I thought I was dying because they were so

intense. I was crying hysterically and begging to die

because the pain was more than I could handle. I was

sweating like crazy and on the toilet while throwing up

too.”129 She “was alone, and afraid” and too ashamed to

share with anyone what was truly causing her physical

and emotional pain.130

Leslie also experienced severe hemorrhaging. She

states: “I bled so much that it clogged the drain . . . It

was my baby that was clogging the drain of the shower.

I had to turn off the water, get out, and clean it up

125

Id. at ¶ 4.

Id. at 11.

127

Id. at ¶ 4.

128

Id. at ¶ 8.

129

Id.

130

Id. at ¶ 9.

126

29

myself and then I flushed it down the toilet. It was even

more horrifying than it sounds.”131

In addition, Leslie experienced the trigger problems associated with the RU-486 regimen. She attests:

“This was all done in my own home, in the family bathroom, the family shower, the home where I had to live

after this experience. The emotional pain this caused

made it almost unbearable to be at home after that. I

hated showering and I hated sleeping in my bed, I

hated being around my family, I didn’t want to be there

anymore and tried my best to avoid being home.”132

Leslie’s experience is not unusual.133 Amici Tammi

Morris had a similar experience.134 She was not given

truthful and accurate information about chemical

abortion, and specifically, about what she would experience.135 Although the clinic said that she would expel

“tissue,” she was devastated to see it was a baby, her

baby.136 Seeing her baby sent her “over the emotional

edge. Everything got worse for me. Drinking heavily,

hiding, anger, depression, and suicidal thoughts. I

eventually filed for divorce from my husband. It also

affected my relationship with my son and daughter.”137

131

Id. at ¶¶ 11-12.

Id. at ¶¶ 13-14.

133

For example, see Affidavit of Tammi Morris, attached as

App. B; Affidavit of Carol Everett, attached as App. C.

134

Affidavit of Tammi Morris, attached as App. B.

135

Id. at ¶3.

136

Id. at ¶¶ 3, 17.

137

Id. at ¶ 20.

132

30

Amici Carol Everett says that since 2000 she has

counselled women who have taken RU-486.138 She attests that they have more physical and psychological

problems than women who have surgical abortions.139

They have more severe physical issues including “severe hemorrhaging and pain from RU-486.”140 “In addition, some of the most severe post-abortion syndrome

occurs because the women actually see the baby is being expelled.”141

One woman who was certainly hurt by RU-486

was Holly Patterson who was the first woman in the

United States to die of the drug regimen. Planned

Parenthood had given Holly the unapproved, off-label

RU-486 chemical abortion regimen.142 Holly tragically

died from an infection known as Clostridium sordellii

toxic shock syndrome that was associated with a chemical abortion.143 Holly had not been given accurate and

truthful information concerning the RU-486 regimen

so that she could make an informed decision.144 Mr.

Patterson, Holly’s father, attests that “This has been

such a painful experience for our family. I do not want

to see any other family go through what we have.”145

He states “This was the worst day of my life” as he

138

Affidavit of Carol Everett, Appendix C, ¶ 19.

Id.

140

Id.

141

Id. at ¶ 21.

142

Affidavit of Monty Patterson, attached as App. D, ¶ 2.

143

Id.

144

Id. at ¶ 35.

145

Id. at ¶ 3.

139

31

watched his daughter die.146 Chemical abortion not

only hurts women, it hurts families.

The women Amici attest to the harm of chemical

abortion. But the harm is magnified by the fact that

chemical abortions are rising by large numbers. The

Guttmacher Institute reports that the number of abortions is on the rise, and specifically, in 2020 “Medication abortion accounted for 53% of all abortions,

compared with 39% in 2017.”147 This number is even

greater in 2023.148 Therefore, the FDA’s failing its responsibilities and having willful blindness to the scientific studies demonstrating the physical and

psychological harm of mifepristone is creating undue

harm to women and their families.

---------------------------------♦---------------------------------

CONCLUSION

The data, scientific studies, and personal testimony of women all attest that chemical abortion has

146

Id. at ¶ 13.

Guttmacher Institute, Guttmacher Institute Releases

2020 Abortion Provider Census with Important Data on US Abortion Landscape Before the Fall of Roe (Dec. 1, 2022), available

at https://www.guttmacher.org/news-release/2022/guttmacherinstitute-releases-2020-abortion-provider-census-important-dataus.

148

Guttmacher Institute, Number of Abortions in the United

States Likely to Be Higher in 2023 than in 2020 (Jan. 17, 2024),

available at https://www.guttmacher.org/news-release/2024/

number-abortions-united-states-likely-be-higher-2023-2020.

147

32

serious negative physical and psychological consequences. Therefore, the FDA’s willful blindness in not

reviewing and evaluating the data and studies which

it knew from its own information caused it to fail its

responsibilities and act in an arbitrary and capricious

manner. Women deserve truthful and accurate information to make an informed decision.

Mifepristone and the RU-486 regimen creates

greater risks of both physical and psychological harm

to women than surgical abortion. Thus, the FDA

should have protected women by fulfilling its responsibilities concerning this dangerous drug which has severe risks including death. The FDA’s willful blindness

has caused women sorrow, grief, and regret because

they did not have the needed information. It has also

caused families great pain and sorrow. Thus, Amici

urge this Court to affirm the court of appeal’s decision.

Respectfully submitted,

LINDA BOSTON SCHLUETER

Counsel of Record

TRINITY LEGAL CENTER

1150 N. Loop 1604 W., Suite 108-208

San Antonio, Texas 78248

210-274-5274

TLC4Linda@aol.com

Counsel for Amici 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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