Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. Alliance for Hippocratic Medicine, et al.
Supreme Court briefFeb 29, 2024
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Nos. 23-235, 23-236
In the Supreme Court of the United States
U.S. FOOD AND DRUG ADMINISTRATION, ET AL.,
Petitioners,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
and
DANCO LABORATORIES, LLC, ET AL.,
Petitioners,
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 AMICI CURIAE
NATIONAL HISPANIC LEADERSHIP CONFERENCE AND
FREDERICK DOUGLASS FOUNDATION
SUPPORTING RESPONDENTS
ANITA L. STAVER
HORATIO G. MIHET
DANIEL J. SCHMID
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
MATHEW D. STAVER
Counsel of Record
LIBERTY COUNSEL
109 Second Street NE
Washington, D.C. 20002
(202) 289-1776
court@lc.org
Counsel for Amici
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................ii
INTEREST OF AMICI CURIAE ............................. 1
SUMMARY OF ARGUMENT.................................. 2
ARGUMENT ............................................................ 3
I. The Abortion and Birth Control Movements Are
Rooted in Social Darwinism and the Elimination
of “Undesirable” People. ..................................... 3
A. The Origin of the Eugenics Movement. ........ 4
B. The Eugenic Era Lives on Through the
Abortion Movement. ...................................... 7
C. The Eugenics Movement’s Racist Roots. ...... 8
D. Modern Abortion Policy Promotes the
Eradication of Preborn Children with Down
Syndrome and Other Disabilities. .............. 15
II. The Population Council, the Patent Holder for
Mifepristone, has Longstanding Ties to
Eugenics. ........................................................... 21
A. The Origin of the Population Council. ........ 22
B. The Population Council’s Eugenic Roots. ... 23
C. The Population Council’s Acquisition of
Mifepristone................................................. 27
III.The Federal Government’s Own “Expert” in this
Case Chillingly Echoes the Eugenicist Aims of
Widespread Abortion. ....................................... 29
CONCLUSION ....................................................... 31
ii
TABLE OF AUTHORITIES
Page(s)
Cases
All. for Hippocratic Med. v. U.S. Food & Drug
Admin.,
78 F.4th 210 (5th Cir. 2023) ................................. 2
Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019). ................. 3, 4, 6, 7, 11, 31
Buck v. Bell,
274 U.S. 200 (1927) .......................................... 2, 6
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) .............................................. 1
Preterm-Cleveland v. McCloud,
994 F.3d 512 (6th Cir. 2021) ................................ 7
Smith v. Wayne,
231 Mich. 409 (1925) ............................................ 6
Statutes
Americans with Disabilities Act of 1990, Pub. L.
No. 101-336, 104 Stat. 327 ................................. 21
Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. No 108-446,
118 Stat. 2647 ..................................................... 21
Other Authorities
Abortion Pill Maker Revealed, CBS News (Oct. 13,
2000).................................................................... 29
Adam Cohen, Imbeciles: The Supreme Court,
American Eugenics, and the Sterilization of
Carrie Buck (2016)....................................... 2, 5, 7
iii
American College of Obstetricians & Gynecologists,
Practice Bulletin 162: Prenatal Diagnostic
Testing for Genetic Disorders (May 2016) ......... 17
American Medical Association, House of Delegates
Proceedings, Annual Convention 1967 .............. 16
Bernard Berelson, Beyond Family Planning,
38 STUD. FAM. PLAN. (Feb. 1969) ....................... 27
Brian G. Skotko et al., Self-Perceptions from People
With Down Syndrome, AM. J. MED. GENETICS
2360 (Oct. 2011) .................................................. 19
Brian G. Skotko, Prenatally Diagnosed Down
Syndrome: Mothers Who Continued Their
Pregnancies Evaluate Their Health Care
Providers, 192 AM. J. OF OBSTETRICS &
GYNECOLOGY 670 (Nov. 2004) ............................ 19
Carole Novielli, The Population Council, Which
Brought the Abortion Pill to the U.S., Has a
Shocking History That’s Nothing to Celebrate,
LiveAction (Nov. 14, 2017) ................................. 24
Caroline Mansfield et al., European Concerted
Action, Termination Rates After Prenatal
Diagnosis of Down Syndrome, Spina Bifida,
Anencephaly, and Turner and Klinefelter
Syndromes: A Systematic Literature Review, 19
PRENATAL DIAGNOSIS 808(1999) ......................... 17
Corinna Lain, Three Supreme Court “Failures” and
a Story of Supreme Court Success, 69
VANDERBILT L. REV. 1040 (2019) .......................... 9
Ctrs. For Disease Control & Prevention, Morbidity
& Mortality Wkly. Rep., Abortion Surveillance —
United States, 2018 ............................................ 13
iv
Dave Maclean, Iceland Close to Becoming First
Country Where No Down’s Syndrome Children
Are Born, Independent (Aug. 16, 2017) ............. 18
David Beito & Linda Royster Beito, Black
Maverick: T.R.M. Howard’s Fight For Civil
Rights and Economic Power (2009) ................... 11
Donald Critchlow, Intended Consequences: Birth
Control, Abortion, and the Federal Government in
Modern America (1999) ...................................... 11
Dorothy Roberts, Killing The Black Body: Race,
Reproduction, and The Meaning
Of Liberty (1997) ................................................... 9
Emily Bazelon, The Place of Women on the Court,
N.Y. Times Magazine (July 7, 2009) .................... 8
Frank Lorimer & Frederick Osborn, Dynamics of
Population: Social and Biological Significance of
Changing Birth Rates
in the United States (1934) ................................. 24
Frederick Osborn, Characteristics and Differential
Fertility of American Population Groups,
12 SOC. FORCES 1 (1933) ..................................... 25
Frederick Osborn, Qualitative Aspects of Population
Control: Eugenics and Euthenics,
25 L. & CONTEMP. PROBS. 406 (1960) ................. 25
Jaime L. Natoli et al., Prenatal Diagnosis of Down
Syndrome: A Systematic Review of Termination
Rates (1995-2011),
32:2 PRENATAL DIAGNOSIS 142 (2012) ................ 18
James Sherley, Preborn Black Lives Matter, Too,
Wash. Times (Aug. 2, 2020) ............................... 12
James Studnicki et al., Perceiving and Addressing
the Pervasive Racial Disparity in Abortion,
v
Health Servs. Research & Managerial
Epidemiology (2020) ........................................... 12
Jeffrey Sutton, 51 Imperfect Solutions: States and
the Making of American Constitutional Law
(2018) .................................................................... 5
John D. Rockefeller III, On the Origins of the
Population Council,
3 POPULATION & DEV. REV. 493 (1977) ... 22, 23, 29
John J. Donohue & Steven D. Levitt, The Impact of
Legalized Abortion on Crime Over the Last Two
Decades (Nat’l Bureau of Econ. Rsch., Working
Paper No. 25863, 2019) ...................................... 30
John J. Donohue III & Steven D. Levitt, The
Impact of Legalized Abortion On Crime,
116 Q. J. OF ECON. 379 (2001) ............................ 30
Julian Quinones & Arijeta Lajka, “What Kind of
Society Do You Want to Live in?”: Inside the
Country Where Down Syndrome is Disappearing,
CBS News (Aug. 14, 2017) ................................. 17
Karen Gaffney Foundation, Karen’s Story ............ 20
Katherine Kortsmit et al., Ctrs. for Disease Control
& Prevention, Abortion Surveillance—United
States, 2018 (Nov. 27, 2020) ............................... 12
Margaret Sanger Papers Project, Newsletter #28,
Birth Control or Race Control? Sanger and the
Negro Project (2001) ............................................. 9
Margaret Sanger, Apostle of Birth Control Sees
Cause Gaining Here, N.Y. Times, Apr. 8, 1923. 10
Margaret Sanger, Birth Control and Racial
Betterment, BIRTH CONTROL REV., Feb. 1919 ...... 8
Margaret Sanger, Pivot of Civilization (1922) ........ 8
vi
Margaret Sanger, The Function of Sterilization,
BIRTH CONTROL REV., Oct. 1926 ........................... 5
Mark Crutcher et al., Life Dynamics, Inc., Racial
Targeting and Population Control 22 (2011) ... 13,
14
Mary Ziegler, Reinventing Eugenics: Reproductive
Choice and Law Reform After World War II,
14 Cardozo
J.L. & Gender 319 (2008) ................. 22, 23, 25, 26
Mary Ziegler, Roe’s Race: The Supreme Court,
Population Control, and Reproductive Justice, 25
YALE J.L. & FEMINISM 1 (2013) .......................... 10
Matthew Connelly, Fatal Misconception: The
Struggle to Control
World Population (2008) ........................ 22, 23, 24
Maya Manian, Coerced Sterilization of MexicanAmerican Women: The Story of Madrigal v.
Quilligan, in REPRODUC. RIGHTS & JUSTICE
STORIES 97 (Melissa Murray et al. eds., 2019) .... 9
Minutes of a Meeting of the Rockefeller Council
Executive Board (May 9, 1966) .......................... 27
Nancy Gibbs, The Pill Arrives,
CNN (Oct. 2, 2000) ............................................. 28
Paul A. Lombardo, “The American Breed”: Nazi
Eugenics and the Origins of the Pioneer Fund,
65 ALB. L. REV. 743 (2002) ................................. 24
Paul Lombardo, Disability, Eugenics, and the
Culture Wars, 2 ST. LOUIS U. J. HEALTH L. &
POL’Y 57 (2008) ................................................. 5, 9
Paul Lombardo, Three Generations, No Imbeciles:
Eugenics, The Supreme Court, and
Buck v. Bell (2008) ................................................ 7
vii
Peter Quinn, Race Cleansing In America, 54
AMERICAN HERITAGE 2 (2003) .............................. 7
Press Release, Children’s Hospital Boston, Parents
Siblings and People With Down Syndrome Report
Positive Experiences (Sept. 23, 2011) ................. 19
Research Proposal, “Problems of Bearing and
Rearing Children in High-Fertility, Low-Income,
Low Education American Families,” (1960) ...... 26
Robert O’Harrow Jr., Drug’s U.S. Marketer
Remains Elusive, The Washington Post (Oct. 11,
2000).................................................................... 28
Susan Enouen, Life Issues Inst., New Research
Shows Planned Parenthood Targets Minority
Neighborhoods,
Life Issues Connector (Oct. 2012) ...................... 13
Susan Enouen, Research Shows Planned
Parenthood Expands Targeting Minorities as it
Spurns Racist Founder,
Townhall (Sep. 23, 2020) .................................... 14
Tessa Longbons, Charlotte Lozier Inst., Abortion
Reporting: Mississippi (2018) (May 8, 2020) ..... 13
U.S. Census Bureau, Annual Estimates of the
Resident Population by Sex, Race, and Hispanic
Origin (2020)....................................................... 12
Victoria Nourse, Buck v. Bell: A Constitutional
Tragedy from a Lost World,
39 PEPP. L. REV. 101 (2011) .................................. 7
Zoe Ettinger, 13 People with Down Syndrome Who
Are Breaking Barriers in Entertainment,
Athletics, Fashion, and More,
Insider (Mar. 10, 2020) ....................................... 20
INTEREST OF AMICI CURIAE1
Amici are the National Hispanic Christian Leadership Conference and the Frederick Douglass Foundation. Amici are diverse, nonprofit faith organizations that represent or minister to significant portions of the Hispanic and African American communities. They speak on behalf of more than 70,000
Hispanic and African American churches and tens of
millions of African Americans and Hispanics across
the United States. Amici have a strong interest in
exposing the racist and eugenic history of the abortion movement, which has had catastrophic consequences on communities of color.
This Court has previously recognized Amici’s perspective on the racist roots of the modern abortion
movement. See Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 255 n.41 (2022) (citing Brief for
African American Organization et al. as Amici Curiae). In furtherance of their commitment to exposing dark history of abortion in America, and to protect vulnerable communities from genocidal social
policies, Amici have a strong interest in challenging
the FDA’s chemical abortion regimen and approval
of mifepristone. In light of Amici’s background and
experience in this sensitive area, their perspective is
unlikely to be represented by the litigants or other
parties.
1 Counsel for Amici certify that no party authored this brief
in whole or in part, and no such counsel or party contributed
money to prepare or submit this brief.
2
SUMMARY OF ARGUMENT
This Court should uphold the Fifth Circuit’s decision affirming the portions of the stay order regarding the Food and Drug Administration’s (FDA) loosening of prior protections against mifepristone’s serious side effects and its decision to allow the drug
to be dispensed by mail. As the court of appeals observed, by relaxing mifepristone’s safety restrictions, the FDA “failed to address several important concerns about whether the drug would be
safe for the women who use it,” and “it failed to
gather evidence that affirmatively showed that mifepristone could be used safely without being prescribed and dispensed in person.” All. for Hippocratic Med. v. U.S. Food & Drug Admin., 78 F.4th
210, 256 (5th Cir. 2023).
Amici submit this brief to highlight that this case
is not merely about standing. Nor is it just about
whether the FDA’s actions violated the Administrative Procedure Act (APA) or another federal law.
This case also raises the question of why a dangerous
abortifacient is owned by the Population Council, an
organization founded by eugenicists with a nefarious
history of promoting population control. As we discuss below, the answer is clear: The Population
Council’s advocacy for the easy availability of mifepristone—despite the drug’s serious health risks—
derives from the same eugenic ideology that motivated the Council’s founding. And it is the same ideology that induced this Court’s notorious decision in
Buck v. Bell, 274 U.S. 200 (1927). See Adam Cohen,
Imbeciles: The Supreme Court, American Eugenics,
and the Sterilization of Carrie Buck 13 (2016) (calling Buck a “dark legal landmark”).
3
Beyond the issues of standing and administrative
procedure, staying the approval of the mail-order
abortifacient protects the public interest by preventing the drug from being used to target minority and
disabled communities for eugenic ends. As Amici
have argued to this Court before, abortion is largely
a minority epidemic—and purposefully so. Advocates for mifepristone, including the Population
Council and Planned Parenthood, have carried on
Margaret Sanger’s legacy of eliminating or preventing unborn children based on race, sex, and disability. Put simply, mifepristone has become “a tool of
modern-day eugenics.” Box v. Planned Parenthood of
Indiana & Kentucky, Inc., 139 S. Ct. 1780, 1783
(2019) (Thomas, J., concurring). And “reproductive
freedom” and “population control” are coded signals
to advance the eugenic aim of reducing “undesirable”
populations. At a minimum, the Court should not allow the FDA to circumvent safety laws to allow a eugenic drug to destroy more innocent lives. For these
reasons, the Court should affirm the Fifth Circuit’s
decision.
ARGUMENT
I.
The
Abortion
and
Birth
Control
Movements
Are
Rooted
in
Social
Darwinism and the Elimination of
“Undesirable” People.
To understand how mifepristone has been deployed as a eugenic drug, it is necessary to recount
the history of the American abortion and birth control movements as a front for the eugenics agenda.
When the veil is drawn aside, the framing of abortion as a fundamental reproductive right is exposed
4
as a guise for the eugenics movement’s ultimate goal
of removing “undesirable” people. Indeed, presenting abortion as a matter of “my body, my choice”
simply conceals the underlying motive of widespread
abortion: shaping the composition of society through
the selective elimination of preborn persons. As seen
by the Population Council’s history and research interests, by emphasizing “reproductive freedom,” the
eugenics agenda is advanced under the guise of promoting women’s autonomy without overtly acknowledging the abortion movement’s historical connection to population control. Granted, not all abortion
advocates share these motives, but the history of the
abortion and birth control movements raises legitimate concerns about their undeniable links to the
eugenics movement.
A. The Origin of the Eugenics Movement.
Modern abortion advocacy arose out of the birth
control movement, which was “developed alongside
the American eugenics movement.” Box, 139 S. Ct.
at 1783 (Thomas, J., concurring). Coined in the
1880s by Francis Galton, a British scientist and
cousin of Charles Darwin, “eugenics” is “the science
of improving stock through all influences that tend
in however remote a degree to give to the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have.” Id. at 1784. Put simply, the goal
of the eugenics movement was to eliminate “unfit”
and “undesirable” people—those with mental and
physical disabilities as well as certain races.
By the 1920s, the eugenics movement was en vogue
among progressives, academics, and the medical
5
community. See Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck 2 (2016). “Many leading figures
of the day—Theodore Roosevelt, John D. Rockefeller, Mrs. Mary Harriman, David Starr Jordan (a biologist and the first president of Stanford University), to name some—were fervent eugenicists, putting their money, their power, their time, and their
research behind the effort.” Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American
Constitutional Law 87 (2018). As we discuss below,
John Rockefeller III founded the Population Council,
the patent holder to mifepristone.
Margaret Sanger, Planned Parenthood’s founder,
was one of the most outspoken members of the
American eugenics movement. Sanger argued that
eugenics was “the most adequate and thorough avenue to the solution of racial, political and social problems.” Margaret Sanger, The Eugenic Value of Birth
Control Propaganda, BIRTH CONTROL REV., Oct.
1921, at 5. She accordingly praised sterilization as
the “remedy” to the problem of “an increasing rate of
morons.” Margaret Sanger, The Function of Sterilization, BIRTH CONTROL REV., Oct. 1926, at 299.
In the first two decades of the twentieth century,
the eugenic movement altered the legal landscape.
Between 1907 and 1922, a dozen states passed eugenic sterilization laws. See Paul Lombardo, Disability, Eugenics, and the Culture Wars, 2 ST. LOUIS
U. J. HEALTH L. & POL’Y 57, 61 n.33 (2008) (listing 12
states that enacted involuntary sterilization statutes). And one court upheld eugenic sterilization as
a valid exercise of the state’s police power “based on
the growing belief that, due to the alarming increase
6
in the number of degenerates, criminals, feebleminded, and insane, our race is facing the greatest peril of all time.” Smith v. Wayne, 231 Mich. 409,
425 (1925).
In Buck v. Bell, 274 U.S. 200 (1927), this Court
“threw its prestige behind the eugenics movement.”
Box, 139 S. Ct. at 1786 (Thomas, J., concurring).
There the Court approved the compulsory sterilization of an allegedly “feeble minded” woman who had
been falsely adjudged “the probable potential parent
of socially inadequate offspring.” 274 U.S. at 205,
207. In a short opinion, Justice Oliver Wendell
Holmes, Jr., joined by seven other Justices, “offered
a full-throated defense of forced sterilization,” Box,
139 S. Ct. at 1786 (Thomas, J., concurring), as a
means to “prevent” society from being “swamped
with incompetence,” Buck, 274 U.S. at 207. According to this Court:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime,
or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle
that sustains compulsory vaccination is broad
enough to cover cutting the Fallopian tubes.
Three generations of imbeciles are enough.
Ibid. (citation omitted) (emphasis added).
The Buck decision had a profound impact on the
eugenics movement. See Sutton, 51 Imperfect Solutions, at 117 (“As an advertisement for eugenics,
Buck v. Bell worked.”). Within five years, 28 states
had adopted compulsory sterilization laws; and between 1907 and 1983, more than 60,000 people were
7
involuntarily sterilized. See Cohen, supra, at 299–
300, 319; see generally Peter Quinn, Race Cleansing
In America, 54 AMERICAN HERITAGE 2–3 (2003).
Never overruled, the Buck decision is also a dark
stain on this Court, which has resulted in the forced
sterilization of helpless human beings made in the
image and likeness of God. See Cohen, at 13 (observing that Buck “delivered a clarion call to Americans
to identify those among them who should not be allowed to reproduce—and to sterilize them in large
numbers”).2
B. The Eugenic Era Lives on Through the
Abortion Movement.
The eugenics movement fell out of fashion after
World War II with the fall of Nazi Germany, see Sutton, at 87, but “[t]ragically, * * * the practice continues today with modern-day abortions,” PretermCleveland v. McCloud, 994 F.3d 512, 540 (6th Cir.
2021) (Griffin, J., concurring). Indeed, “[f]rom the beginning, birth control and abortion were promoted
as means of effectuating eugenics.” Box, 139 S. Ct.
at 1787 (Thomas, J., concurring); id. at 1789
2 Cf. Paul Lombardo, Three Generations, No Imbeciles: Eu-
genics, The Supreme Court, and Buck v. Bell xiii (2008) (“The
Buck case represents one of the low points in Supreme Court
history—on a par with Plessy v. Ferguson, which announced
the now-discredited legal doctrine of ‘separate but equal,’ and
the Korematsu case, which permitted the internment of Japanese citizens during World War I.”); Victoria Nourse, Buck v.
Bell: A Constitutional Tragedy from a Lost World, 39 PEPP. L.
REV. 101, 101 (2011) (“A mere five paragraphs long, Buck v.
Bell could represent the highest ratio of injustice per word ever
signed on to by eight Supreme Court Justices, progressive and
conservative alike.”).
8
(“Support for abortion can * * * be found throughout
the literature on eugenics.”).
For example, Margaret Sanger argued that birth
control “is really the greatest and most truly eugenic
method” of “human generation,” and “its adoption as
part of the program of Eugenics would immediately
give a concrete and realistic power to that science.”
Margaret Sanger, Pivot of Civilization 189 (1922).
Sanger further argued that “eugenists and others
who are laboring for racial betterment” could not
“succeed” unless they “first clear[ed] the way for
Birth Control.” Margaret Sanger, Birth Control and
Racial Betterment, BIRTH CONTROL REV., Feb. 1919,
at 11.
Many eugenicists supported legalizing abortion,
and abortion advocates—including future Planned
Parenthood President Alan Guttmacher—endorsed
abortion for eugenic reasons. And as the late Justice
Ginsburg once observed: “[A]t the time Roe was decided, there was concern about population growth
and particularly growth in populations that we don’t
want to have too many of. So that Roe was going to
be then set up for Medicaid funding of abortion.”
Emily Bazelon, The Place of Women on the Court,
N.Y. Times Magazine (July 7, 2009).3
C. The Eugenics Movement’s Racist Roots.
Many eugenicists drew “the distinction between
the fit and the unfit * * * along racial lines.” Box, 139
S. Ct. at 1785 (Thomas, J., concurring) (citing examples). See Lombardo, supra, 2 ST. LOUIS U. J.
Available at https://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html (last visited Feb. 22, 2024).
3
9
HEALTH L. & POL’Y at 76 (noting that Margaret
Sanger was open about “voicing her contempt for the
poor, disabled and minorities). The Immigration Act
of 1924 “represented a eugenic (and racist and nativist) attempt to protect the integrity of Anglo-American stock.” Corinna Lain, Three Supreme Court
“Failures” and a Story of Supreme Court Success, 69
VANDERBILT L. REV. 1040 (2019); see also Cohen, supra, at 132–35 (discussing role of eugenicists in
passing the act). And a disproportionate number of
the sterilized individuals, particularly in the South,
were minorities. For example, in 1955, South Carolina reported that all 23 persons sterilized at the
State Hospital over the previous year were Black
women. See Dorothy Roberts, Killing The Black
Body: Race, Reproduction, and The Meaning Of Liberty 88–89 (1997). In the 1930s and 1940s, the North
Carolina Eugenics Commission sterilized nearly
8,000 “mentally deficient persons,” some 5,000 of
whom were Black. Id. (footnote omitted); see also
Maya Manian, Coerced Sterilization of MexicanAmerican Women: The Story of Madrigal v. Quilligan, in REPROD. RIGHTS & JUSTICE STORIES 97, 99
(Melissa Murray et al. eds., 2019) (describing the
forced sterilization of Mexican-American women in
California into the 1970s).
The links between abortion and racist eugenics
are manifold. To begin with, Margaret Sanger focused her eugenic goal to eliminate “the unfit” on minorities. In promoting birth control, Sanger advanced a “Negro Project,” Margaret Sanger Papers
Project, Newsletter #28, Birth Control or Race Control? Sanger and the Negro Project (2001) (Sanger
10
Newsletter).4 She gave a speech to the Ku Klux
Klan. See Margaret Sanger, An Autobiography 366
(1938). And she advocated eugenic breeding for “the
gradual suppression, elimination and eventual extinction, of defective stocks—those human weeds
which threaten the blooming of the finest flowers of
American civilization.” Opinion, Margaret Sanger,
Apostle of Birth Control Sees Cause Gaining Here,
N.Y. Times, Apr. 8, 1923, at 11.
Moreover, Sanger personally set up birth-control
clinics in minority communities, including a clinic in
Harlem in 1930. See Sanger Newsletter; see also
Mary Ziegler, Roe’s Race: The Supreme Court, Population Control, and Reproductive Justice, 25 YALE
J.L. & FEMINISM 1, 13 (2013) (noting that that in its
early advocacy for birth control, Planned
Parenthood “focused on unwanted children and
pathological parenting in poor African American
communities”). In a personal letter in 1939, Sanger
explained her plan to stop Black population growth:
The most successful educational approach to
the Negro is through a religious appeal. We
do not want word to go out that we want to
exterminate the Negro population, and the
minister is the man who can straighten out
that idea if it occurs to any of their more rebellious members.
Sanger Newsletter (citation omitted).
4 Available at http://www.nyu.edu/projects
/sanger/articles/bc_or_race_control (last visited Feb. 22, 2024).
11
Minority groups have complained for decades
that Planned Parenthood targets their communities.
For example, a minority field agent complained to
former Planned Parenthood president Alan
Guttmacher: “Birth control is just a plot just as segregation was a plot to keep blacks down. It is a plot
rather than a solution. Instead of working for us and
giving us our rights—you reduce us in numbers and
do not have to give us anything.” Donald Critchlow,
Intended Consequences: Birth Control, Abortion, and
the Federal Government in Modern America 61
(1999) (quoting a 1966 communication between a
Planned Parenthood field consultant to Alan
Guttmacher).5 African American leaders such as
Julius Lester, Dick Gregory, Daniel H. Watts, and
H. Rap Brown described abortion as “black genocide”
and called on Blacks to eschew these practices to
avoid “race suicide.” Critchlow, Intended Consequences, at 142.6
Beyond anecdotes, the actual data confirms that
abortion has devastated communities of color. According to one peer-reviewed study, “black women
have been experiencing abortions at a rate nearly
5 See also Box, 139 S. Ct. at 1790 (Thomas, J., concurring)
(noting that some Black groups considered “‘family planning’
as a euphemism for race genocide and believed that black people [were] taking the brunt of the ‘planning’ under Planned
Parenthood’s ‘ghetto approach’ to distributing its services” (citation and internal quotation marks omitted)).
6 Accord David Beito & Linda Royster Beito, Black Maverick:
T.R.M. Howard’s Fight For Civil Rights and Economic Power
215 (2009) (noting that some African American civil rights
leaders “fretted about the racist implications of abortion”).
12
four times that of white women for more than 30
years.” James Studnicki et al., Perceiving and Addressing the Pervasive Racial Disparity in Abortion,
Health Servs. Research & Managerial Epidemiology
(2020).7 Dr. James Sherley, one of the study’s authors, commented: “Abortion is the hushed killer of
Black life that has silenced millions of George Floyds
before they even took their first breath of air. Yet, in
this remarkable moment of social reform history, the
lives of Black preborn children have been forgotten.”
Opinion, James Sherley, Preborn Black Lives Matter, Too, Wash. Times (Aug. 2, 2020).8
According to the Centers for Disease Control’s
most recent data, African American women accounted for 33.6% of all reported abortions in 2018,
even though they comprise 13% of women in the
United States. Katherine Kortsmit et al., Ctrs. for
Disease Control & Prevention, Abortion Surveillance—United States, 2018 (Nov. 27, 2020); U.S.
Census Bureau, Annual Estimates of the Resident
Population by Sex, Race, and Hispanic Origin
(2020). Black women also had the highest abortion
rate (21.2 abortions per 1,000 women) and ratio (335
abortions per 1,000 live births).
Further, abortion-induced deaths of the unborn in
the African American community are 69 times
higher than HIV deaths, 31 times higher than (all
other) homicides, 3.6 times higher than cancer7 Available at https://www.ncbi.nlm.nih.gov/pmc/arti-
cles/PMC7436774/pdf/10.1177_2333392820949743.pdf (last
visited Feb. 22, 2024).
8 Available at https://www.washingtontimes.com/news/2020/aug/2/preborn-black-lives-matter-too/
(last visited Feb. 22, 2024).
13
related deaths, and 3.5 times higher than deaths
caused by heart disease. Ctrs. For Disease Control &
Prevention, Morbidity & Mortality Wkly. Rep., Abortion Surveillance—United States, 2018, at 8.
In Mississippi, 3,005 abortions were reported in
2018. Of those abortions, 72% were performed on African American women, compared to just 24% on
white women and 4% on women of other races. See
Tessa Longbons, Charlotte Lozier Inst., Abortion Reporting: Mississippi (2018) (May 8, 2020).9 Indeed,
the Charlotte Lozier Institute estimates that the African American abortion rate in Mississippi was 8.5
per 1,000 women of childbearing age—over threeand-a-half times the abortion rate of 2.3 per 1,000
for white women. Ibid.
The racial disparity in abortions is largely intentional: A study based on 2010 Census data shows
that nearly eight out of ten Planned Parenthood
abortion clinics are within walking distance of predominantly African American or Hispanic neighborhoods. Susan Enouen, Life Issues Inst., New Research Shows Planned Parenthood Targets Minority
Neighborhoods, Life Issues Connector (Oct. 2012);10
see also Mark Crutcher et al., Life Dynamics, Inc.,
Racial Targeting and Population Control 22 (2011)
(reporting that in every state, “population control
centers” are in “zip codes with higher percentages of
Available at https://lozierinstitute.org/abortion-reportingmississippi-2018/ (last visited Feb. 22, 2024).
10 Available at http://www.protectingblacklife.org/pdf/PPTargets-10-2012.pdf (last visited Feb. 22, 2024).
9
14
blacks and/or Hispanics than the state’s overall percentage”).11
More specifically, Planned Parenthood intentionally located 86% of its abortion facilities in or near
minority neighborhoods in the 25 U.S. counties with
the most abortions. See Susan Enouen, Research
Shows Planned Parenthood Expands Targeting Minorities as it Spurns Racist Founder, Townhall (Sep.
23, 2020).12 These 25 counties contain 19 percent of
the U.S. population, including 28% of the African
American population and 37% of the Hispanic/Latino population. In 12 of these counties, Blacks and
Hispanics/Latinos are more than 50% of the population. In comparison, African Americans are only
12.6% of the U.S. population, and Hispanics and Latinos are 16.3%. Planned Parenthood’s largest abortion facility in America is situated in the middle of a
Black and Hispanic neighborhood within walking
distance of a nearby school.
Given that Planned Parenthood has strategically
located abortion clinics near minority neighborhoods, the abortion industry’s attempt to deny its eugenic aims cannot withstand objective scrutiny. See
Crutcher, supra, at 4 (noting that “these patterns
are routinely considered indicative of racial targeting when it comes to other issues,” such as when civil
rights advocates criticize tobacco and alcohol
11 Available at https://issues4life.org/pdfs/racial_target-
ing_population_control.pdf (last visited Feb. 22, 2024).
12 Available at https://townhall.com/columnists/susanwillkeenouen/2020/09/23/research-shows-plannedparenthood-expands-targeting-minorities-as-it-spurns-racistfounder-n2576680 (last visited Feb. 22, 2024).
15
companies for concentrating their retail and marketing efforts disproportionately in minority neighborhoods).
In short, Margaret Sanger believed, as did her Eugenics Era colleagues, that the “unfit” and “feebleminded” were a menace to society. And in all contexts, these terms were code words for the poor,
blacks, and other minorities. Sanger clearly believed
that these “undesirable” people should not reproduce and thus advocated for their sterilization. See
generally Margaret Sanger, My Way to Peace, Address to the New History Society (Jan. 17, 1932).
Moreover, Sanger’s life purpose was to implement
eugenic population control, and targeted birth control was her way to achieve it. And as discussed below, pro-eugenic organizations like the Population
Council, the patent holder of mifepristone, continue
Sanger’s shameful legacy to this day.
D. Modern Abortion Policy Promotes the
Eradication of Preborn Children with
Down Syndrome and Other Disabilities.
Next month, millions across the globe will celebrate World Down Syndrome Day, an annual observance on March 21 started by the United Nations
in part to “ensur[e] and promot[e] the full realization
of all human rights and fundamental freedoms for
all persons with disabilities.” See G.A. RES. 66/149,
¶ 3 (Dec. 19, 2011). Yet in recent years, due to the
“abortion-on-demand” movement and advances in
prenatal screening technology, unborn children with
Down syndrome and other genetic disabilities are increasingly being destroyed, usually through the use
of mifepristone and chemical abortion. See Decl. of
16
Jason Lindo ¶ 30 (Lindo Decl.), D. Ct. Doc. 28-2, at
11.
Selective abortion is morally and ethically wrong.
Aborting children based on prenatal diagnosis of
Down syndrome is undeniably promoting eugenics.
It also sends a message to society that individuals
with Down syndrome are less valuable and less deserving of life than those without the condition. This
is a dangerous precedent to set, as it leads to a devaluation of human life and an erosion of the rights
of individuals with disabilities.13 Accordingly, the
District Court had a strong public policy interest in
issuing a preliminary injunction, thereby “preventing abortion from [further] becoming a tool of modern-day eugenics” against the disabled. Box, 139 S.
Ct. at 1783 (Thomas, J., concurring).
As discussed above, abortion is a disturbingly effective strategy to carry out discriminatory eugenics.
As Justice Thomas presciently observed, today’s
“[t]echnological advances have only heightened the
eugenic potential for abortion, as abortion can now
be used to eliminate children with unwanted characteristics, such as a particular sex or disability.”
Box, 139 S. Ct. at 1784 (Thomas, J., concurring)
13 Sadly, the American Medical Association has endorsed dis-
ability selective abortion at least since 1967. See American
Medical Association, House of Delegates Proceedings, Annual
Convention 1967 40, 50 (adopting as policy “an occasional obstetric patient * * * would warrant the instituion [sic] of therapeutic abortion * * * to prevent the birth of a severely crippled,
deformed or abnormal infant”).
17
(citing examples).14 This observation is not drawn
from a dystopian novel but from the real world. Data
from the United States and Europe show that over
92% of parents who learn through prenatal genetic
testing that their child has Down syndrome opt to
abort the baby. See Caroline Mansfield et al., European Concerted Action, Termination Rates After Prenatal Diagnosis of Down Syndrome, Spina Bifida,
Anencephaly, and Turner and Klinefelter Syndromes: A Systematic Literature Review, 19 PRENATAL DIAGNOSIS 808, 810 (1999). Indeed, Iceland and
Denmark have nearly eliminated all children with
Down syndrome through selective abortion. Since
prenatal screening was introduced in Iceland, “close
to 100 percent” of preborn children diagnosed with
Down syndrome are aborted. Julian Quinones & Arijeta Lajka, “What Kind of Society Do You Want to
Live in?”: Inside the Country Where Down Syndrome
is Disappearing, CBS News (Aug. 14, 2017) .15 The
one or two babies with Down syndrome who survive
to birth do so because, as one Icelandic doctor disturbingly observed, “we didn’t find them in our
screening.” Dave Maclean, Iceland Close to
14 Cell-free DNA testing enables genetic screening through a
simple blood draw during the first trimester. The American
College of Obstetricians and Gynecologists recommends offering cell-free testing for Down syndrome to all pregnant women
“as early as possible in pregnancy, ideally at the first obstetric
visit.” American College of Obstetricians & Gynecologists,
Practice Bulletin 162: Prenatal Diagnostic Testing for Genetic
Disorders (May 2016).
15 Available at https://www.cbsnews.com/news/down-syndrome-iceland/ (last visited Feb. 22, 2024).
18
Becoming First Country Where No Down’s Syndrome
Children Are Born, Independent (Aug. 16, 2017).16
Nor is the eugenic application of abortion in the
United States merely hypothetical: An estimated
67% of babies with Down syndrome are aborted in
our country. See Box, 139 S. Ct. at 1783, 1790
(Thomas, J., concurring). Other studies estimate
that 80% of women who learn of a Down syndrome
diagnosis before 24 weeks abort their baby. Susan
Donaldson James, Down Syndrome Births are Down
in the U.S., ABC News (Oct. 30, 2009).17 Furthermore, a review of nine hospital-based studies shows
that over 85% of babies are aborted following a prenatal diagnosis of Down syndrome. Jaime L. Natoli
et al., Prenatal Diagnosis of Down Syndrome: A Systematic Review of Termination Rates (1995-2011),
32:2 PRENATAL DIAGNOSIS 142, 147 (2012). This review also suggests that higher abortion rates following a Down syndrome diagnosis “were consistently
associated with earlier gestational age,” with one
study reporting that 93% of women at 16 weeks or
less into their pregnancy aborted their babies compared to 85% at 17 weeks or greater. Maclean, supra,
at 149.
Even more alarming, an anonymous survey of
nearly 500 physicians who had delivered prenatal
diagnoses revealed that 13% of the providers
16 Available at https://www.independent.co.uk/life-
style/health-and families/iceland-downs-syndrome-no-children-born-first-countryworld-screening-a7895996.html (last
visited Feb. 22, 2024).
17 Available at https://abcnews.go.com/Health/w_ParentingResource/down-syndrome-births-dropus-womenabort/story?id=8960803 (last visited Feb. 22, 2024).
19
emphasized the negative aspects of Down syndrome
so that patients would favor terminating the pregnancy, and 10% actively “urge” parents to terminate
the pregnancy. Brian G. Skotko, Prenatally Diagnosed Down Syndrome: Mothers Who Continued
Their Pregnancies Evaluate Their Health Care Providers, 192 AM. J. OF OBSTETRICS & GYNECOLOGY
670, 670–71 (Nov. 2004).
In short, the eugenic use of abortion in America is
not an overblown conspiracy theory promoted by
pro-life activists—it is actually happening. Affirming the stay order thus “prevent[s] abortion from becoming a tool of modern-day eugenics.” Box, 139 S.
Ct. at 1783 (Thomas, J., concurring).
Critically, individuals with Down syndrome offer
much to society and are a joy to their loved ones. A
2011 Harvard study found that “[a]mong those surveyed, nearly 99% of people with DS indicated that
they were happy with their lives, 97% liked who they
are, and 96% liked how they look. Nearly 99% of people with DS expressed love for their families, and
97% liked their brothers and sisters.” Brian G.
Skotko et al., Self-Perceptions from People with
Down Syndrome, AM. J. MED. GENETICS 2360, 2360,
2364 (Oct. 2011). Children’s Hospital Boston also
found that 99% of parents or guardians loved their
child with Down syndrome, and 79% “felt their outlook on life was more positive because of their child.”
Press Release, Children’s Hospital Boston, Parents
Siblings and People With Down Syndrome Report
Positive Experiences (Sept. 23, 2011). The same
study found that 94% of siblings 12 years and older
reported that they were proud of their brother or
20
sister with Down syndrome, and 88% said that they
were a better person because of their sibling. See id.
Despite their limitations, children with Down syndrome can achieve great things. Take Karen
Gaffney, for example. Gaffney has Down syndrome,
yet she earned a two-year Associates of Science degree from Portland Community College, successfully
swam the English Channel as part of a six-person
relay team and swam nine miles straight across
Lake Tahoe in 59-degree water to raise money for
the National Down Syndrome Congress. See Karen
Gaffney Foundation, Karen’s Story (last accessed
Feb. 19, 2024).18 On top of that, Gaffney leads a nonprofit foundation dedicated to advocating for those
with Down syndrome. Her message is simple: “Down
Syndrome Is a Life Meant to Be Saved!” Id.
Other children with Down syndrome have gone on
to perform at Carnegie Hall, launch a fashion label,
and open their own restaurant. Zoe Ettinger, 13 People with Down Syndrome Who Are Breaking Barriers
in Entertainment, Athletics, Fashion, and More, Insider (Mar. 10, 2020).19 In short, people with Down
syndrome have contributed to society in meaningful
ways. By advocating for permissive abortion laws
and access to mifepristone as the means by which
most children are aborted early in pregnancy, Petitioners are in effect seeking to eradicate people who
have the potential to enrich our communities and
foster compassion for vulnerable communities.
18 Available at https://karengaffneyfoundation.org/karens-
story (last visited Feb. 22, 2024).
19 Available at https://www.insider.com/people-with-downsyndrome-breaking-barriers (last visited Feb. 22, 2024).
21
In sum, the decisions below offset the nefarious eugenicist agenda that targets children with Down
syndrome by limiting the ways such children can be
aborted. At a minimum, this order aligns with federal policy protecting people with disabilities. See
generally Americans with Disabilities Act of 1990,
Pub. L. No. 101-336, 104 Stat. 327; Individuals with
Disabilities Education Improvement Act of 2004,
Pub. L. No 108-446, 118 Stat. 2647. By contrast, Petitioners’ position—which necessarily advocates for
the widespread availability of mifepristone for the
purpose of selective abortions—promotes disability
discrimination and threatens to eradicate a group of
individuals with unique abilities and experiences.
II.
The Population Council, the Patent
Holder
for
Mifepristone,
has
Longstanding Ties to Eugenics.
Imagine, if you will, an organization that was
founded by an elite cabal of eugenicists to reduce the
global population. As part of its plot, this organization acquired the patent for a cheap and effective
drug that can easily abort millions of unborn lives.
Now “medication abortions” account for the majority
of all abortions in the United States. Such a story
seems lifted straight out of a pulp apocalyptic
thriller, but sadly it is true: The holder of the patent
to mifepristone, the Population Council, has deep
ties to the eugenics movement.
An overview of the Population Council’s history
sheds light on how the eugenic crusade to eradicate
undesirable populations through abortion and birth
control continues through this century—under the
guise of “reproductive health” and “family planning.”
22
Cf. Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14
CARDOZO J.L. & GENDER 319, 331 (2008) (noting how
the Population Council’s “evolution offers a powerful
example of how pro-eugenic groups redefined themselves and their programs in order to ensure their
political survival”).
A. The Origin of the Population Council.
The Population Council “was formed partly by
leaders of the eugenic legal reform movement who
intended to create a new kind of organization in response to post-war politics: an organization that
would prevent overall population growth and preserve the ‘quality’ of the population.” Ziegler, 14
CARDOZO J.L. & GENDER at 331 (quoting John D.
Rockefeller III, On the Origins of the Population
Council, 3 POPULATION & DEV. REV. 493, 493 (1977)).
The Council’s inception can be traced back to “a
conference on population problems” convened by
John D. Rockefeller III in June 1952 in Williamsburg, Virginia. Rockefeller, 3 POPULATION & DEV. R.
at 494–96. Over the course of three days, thirty individuals—including population activists, the director of Planned Parenthood Federation of America,
and various prominent figures associated with eugenics—discussed the need to promote the reduction
of the global population. See Matthew Connelly, Fatal Misconception: The Struggle to Control World
Population 156 (2008). The conference participants
universally expressed concern about “the prospect of
rapid population growth” and the need for “optimum
population.” Rockefeller, 3 POPULATION & DEV. R. at
494, 496. Some speakers advocated as “necessary”
23
the reduction of the “rate of population growth.” Id.
at 494. Others noted with approval the “rapid drop
in fertility resulting from the urbanization of the
American negro population.” Id. at 495. Also discussed was the “problem of ‘quality’”: that “[m]odern
civilization had reduced the operation of natural selection by saving more ‘weak’ lives and enabling
them to reproduce.” Id. at 496.
The consensus from the conference was that priority should be given “to the reduction of fertility.”
Rockefeller, 3 POPULATION & DEV. R. at 496. “Many
types of action were suggested which might aid in
the reduction of fertility,” including “birth control”
and “more convenient methods.” Ibid. (emphasis
added). To further the aims of the conference, Rockefeller officially established the Population Council
by providing a personal grant of $100,000—nearly
$1.2 million in today’s dollars—and assuming the
role of its inaugural president. See Connelly, Fatal
Misconception at 155–159.
B. The Population Council’s Eugenic Roots.
A “significant number” of the Population Council’s
founding members “maintained their ties with the
eugenic movement.” Ziegler, 14 CARDOZO J.L. & GENDER at 331. “Not surprisingly, these members continued to endorse eugenic goals, but they now characterized those goals as matters of population control.” Id. For example, Rockefeller’s successor as
president was Frederick Osborn, secretary of the
American Eugenics Society and signatory to
Sanger’s “Citizens Committee for Planned
Parenthood.” Carole Novielli, The Population Council, Which Brought the Abortion Pill to the U.S., Has
24
a Shocking History That’s Nothing to Celebrate,
LiveAction (Nov. 14, 2017).20 Under Osborn’s leadership, the Population Council made regular grants to
the American Eugenics Society. See Connelly, Fatal
Misconception at 160.
Like many eugenicists of his era, “Osborn did not
hesitate to endorse compulsory eugenic sterilization
of the mentally ill or restrictions on immigration,
and to voice caution against miscegenation.” Paul A.
Lombardo, “The American Breed”: Nazi Eugenics
and the Origins of the Pioneer Fund, 65 ALB. L. REV.
743, 801 (2002). Osborn had previously written that
“[i]t is evident that the social conditions which affect
reproduction might be modified in a number of ways,
so that the dynamic influences of population change
would be more in line with conscious social objectives.” Frank Lorimer & Frederick Osborn, Dynamics of Population: Social and Biological Significance
of Changing Birth Rates in the United States 345–
348 (1934). Osborn continued: “Eventually, if our
dream of human progress is to be realized, rational
social action must replace the operation of blind
forces in this as in other fields.” Ibid. This passage
underscores Osborn’s belief that reproduction can be
intentionally altered to further social engineering.
He suggests that by modifying these conditions,
which invariably include perceptions about birth
control, the dynamic influences on population
change can be directed towards planned
20 Available at https://www.liveaction.org/news/population-
council-founded-eugenicists-promoting-abortion-turns-65/
(last visited Feb. 22, 2024).
25
demographic outcomes—the fundamental goal of eugenics.
Following Osborn’s presidency at the Population
Council was another leader from the American Eugenics Society, Frank Notestein. Along with Osborn,
Notestein was a pioneer in the study of “differential
fertility,” the belief that unfit, poor, and unintelligent people were more fertile than fit people. See,
e.g., Frederick Osborn, Characteristics and Differential Fertility of American Population Groups, 12 SOC.
FORCES 1, 4 (1933). In the late 1950s, Notestein, Osborn, and other Council members revived the theory
of differential fertility to promote the Council’s eugenic goals. They argued that if everyone agreed on
the need for population control, then the focus
should be on limiting the growth of highly fertile individuals—that is, the unfit or undesirable. According to Osborn, these people were “the socially inadequate—those families who are perennially on relief
rolls, the constant problem of the social worker.”
Frederick Osborn, Qualitative Aspects of Population
Control: Eugenics and Euthenics, 25 L. & CONTEMP.
PROBS. 406, 423 (1960). In other words, the Population Council’s resident eugenicists believed that “if
an overall reduction in world and domestic population growth inevitably improved the quality of population, those interested in eugenics could achieve the
same goals by studying and campaigning for less
controversial population control reforms.” Ziegler,
14 CARDOZO J.L. & GENDER at 335.
Unsurprisingly, as the Population Council sought
to reduce reproduction rates among “high fertility
groups,” its “research interests and policy proposals
displayed a more overt racial bias.” Ziegler, 14
26
CARDOZO J.L. & GENDER at 335. For instance, during
the early 1960s, the Council began supporting research aimed at lowering growth rates in both urban
and rural African American communities. See id. As
Professor Ziegler observed, the shift in research focus reflected two emerging perspectives within the
Council: “First, the new research suggested that it
would be desirable to reduce the size of the AfricanAmerican population.” Id. “Second, the research focus demonstrated that a growing number of Council
members believed that the ‘socially inadequate’ were
rarely white.” Ibid.
The Population Council’s eugenic aim to reduce the
population of minorities is further evident in the
Council’s close sponsorship of the work of Donald
Bogue, a demographer and member of the University of Chicago’s Population Research and Training
Center. See Research Proposal, “Problems of Bearing and Rearing Children in High-Fertility, Low-Income, Low Education American Families,” (1960)
(Research Proposal) in The Rockefeller Archive,
Rockefeller University, Population Council Papers,
Box 46, Folder 653. Bogue argued that minorities
“continued to make wrong choices with respect to
family planning because they were incompetent, unmotivated, or influenced by their own or their family’s culture.” Ziegler, 14 CARDOZO J.L. & GENDER at
336–37. That being so, Bogue called for “a program
that used all measures short of force in order to assure that members of high fertility groups made the
right choices.” Id. After 1960, Bogue received most
of his funding from the Population Council, see Research Proposal, and by the mid-1960s, the Council’s
Executive Board followed his recommendations in
27
prioritizing funding contraceptive programs in minority communities, see Minutes of a Meeting of the
Rockefeller Council Executive Board (May 9, 1966)
in The Rockefeller Archive, Rockefeller University,
Population Council Papers, Box 56, Folder 903.
In 1969, Bernard Berelson, the Population Council’s fourth president, wrote an article called “Beyond Family Planning” in the Council’s Studies in
Family Planning journal. Berelson sought to review
various proposals that address the “problem” of population growth, and he discussed “programs or policies more or less responsibly suggested,” such as
adding “fertility control agents” to urban water supplies, temporary sterilization of young women using
“time-capsule contraceptives,” and mandatory sterilization for men with three or more children. Bernard Berelson, Beyond Family Planning, 38 STUD.
FAM. PLAN. 1–3 (Feb. 1969). Chillingly, Berelson observed that it is “worth noting” that “more extreme
or controversial proposals tend to legitimate more
moderate advances, by shifting the boundaries of
discourse.” Id. at 12 (emphasis added). As we have
seen since its founding, the Population Council has
“shift[ed] the boundaries of discourse,” id., from the
openly eugenic aims of its founding members such
as Frederick Osborn and Frank Notestein to other
guises, such as “population control” and “reproductive choice.”
C. The Population Council’s Acquisition of
Mifepristone.
After decades of funding population control studies
and programs, the Population Council finally found
a most effective avenue to achieve its eugenic aims:
28
the RU-486 chemical abortifacient pill, commonly
known as mifepristone. The abortifacient was developed by the French company Roussel-Uclaf, which
sought to sell the rights to an American firm. Fearing a political backlash and because of safety concerns, no American company was willing to buy the
pill. So in May 1994, Roussel-Uclaf donated the patent rights to RU-486 to the Population Council. See
Nancy Gibbs, The Pill Arrives, CNN (Oct. 2, 2000);21
see also FDA Pet. App. 113a; C.A. App. 107. Seeing
that a cheap and widespread abortifacient drug
would further its mission, the Population Council
conducted clinical trials, secured FDA approval in
2000, and identified a manufacturer. See id.
During the FDA approval process, the Population
Council transferred the rights to produce and distribute RU-486 to Petitioner Danco Laboratories, a
“secretive and obscure” entity formed in 1995 in the
Cayman Islands, in return for undisclosed royalties.
Robert O’Harrow Jr., Drug’s U.S. Marketer Remains
Elusive, The Washington Post (Oct. 11, 2000).22 FDA
Pet. App. 6a; C.A. App. 115. Danco then contracted
with the Chinese firm Hua Lian Pharmaceutical Co.
to manufacture the compounds for RU-486. This arrangement was reportedly facilitated by the
21 Available at https://www.cnn.com/ALLPOLI-
TICS/time/2000/10/09/pill.html (last visited Feb. 22, 2024).
22 Available at https://www.washingtonpost.com/archive/politics/2000/10/12/drugs-us-marketer-remains-elusive/8b7b732b-0f23-4c96-9051-714cd3d9f6f8/ (last visited Feb.
22, 2024).
29
Rockefeller Foundation. Abortion Pill Maker Revealed, CBS News (Oct. 13, 2000).23
In the final analysis, the Population Council has a
long history of providing funding, research, and advocacy to legitimize and expand access to abortion as
a means to reduce minority birth rates and preserve
the “quality” of the population. Rockefeller, supra, 3
POPULATION & DEV. REV. at 493. Allowing the unlawful distribution of mifepristone by mail would enable the Population Council’s ongoing experiments
on reducing birth rates and eliminating “undesirable” persons.
III. The Federal Government’s Own “Expert”
in this Case Chillingly Echoes the
Eugenicist Aims of Widespread Abortion.
Amici have discussed at length how the abortion
industry is rooted in eugenic aims to reduce the population under the guise of “reproductive freedom.”
Amici do not base their concerns on mere hypotheticals or conspiratorial theories. To find support for
Amici’s claims, the Court need not look further than
this litigation, to a declaration submitted by the
FDA from Dr. Jason Lindo, an economics professor
at Texas A&M University whose research interests
include the economic effects of abortion policies. See
Lindo Decl., D. Ct. Doc. 28-2, at 2.
In his declaration, Lindo makes speculative claims
about the outcomes of not having chemical abortions, particularly focusing on the expected challenges for children born to those unable to obtain
23 Available at https://www.cbsnews.com/news/abortion-pill-
maker-revealed/ (last visited Feb. 22, 2024).
30
abortions. He direly declares, under oath, that children who are not aborted may face difficulties in
school, have “more behavioral and social issues,”
lower education levels, poorer health, and “an increased likelihood of criminal involvement.” Lindo
Decl. ¶ 20, D. Ct. Doc. 28-2, at 7. Lindo strongly suggests that, based on these expectations, abortion is
preferable to allowing the child to live. Put simply,
the FDA—a federal agency—submitted a supporting
declaration that claims that children should be
aborted because they are more likely to be unfit for
school, for adulthood, and for society.
As discussed above, Dr. Lindo’s perspective is not
new: It is rooted in the eugenics movement and consistent with contemporary scholarship. See, e.g.,
John J. Donohue & Steven D. Levitt, The Impact of
Legalized Abortion On Crime, 116 Q. J. OF ECON. 379
(2001) (arguing that “legalized abortion has contributed significantly to recent crime reductions”); John
J. Donohue & Steven D. Levitt, The Impact of Legalized Abortion on Crime Over the Last Two Decades
(Nat’l Bureau of Econ. Rsch., Working Paper No.
25863, 2019) (estimating that “crime fell roughly
20% between 1997 and 2014 due to legalized abortion” and that the “cumulative impact of legalized
abortion on crime is roughly 45%”).
Again, it is hard not to observe the racist undertones of such theories, given that the abortion rate
is higher among black and Hispanic women. In any
event, potential difficulties in a child’s future should
not justify aborting that child. Yet Dr. Lindo’s declaration reflects that prevailing sentiment among socalled experts that mifepristone may be used as “a
disturbingly effective tool for implementing the
31
discriminatory preferences that undergird eugenics.” Box, supra, 139 S. Ct. at 1790 (Thomas, J., concurring) (citing examples).
CONCLUSION
The Court should affirm the Fifth Circuit’s order
and remand for further proceedings.
Respectfully submitted.
ANITA L. STAVER
HORATIO G. MIHET
DANIEL J. SCHMID
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
MATHEW D. STAVER
Counsel of Record
LIBERTY COUNSEL
109 Second Street NE
Washington, D.C. 20002
(202) 289-1776
court@lc.org
Counsel for Amici
FEBRUARY 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.