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, VIDED

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------U.S. FOOD AND DRUG ADMINISTRATION, ET AL.,

Petitioners,

ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,

Respondents.

and

DANCO LABORATORIES, L.L.C.,

Petitioner,

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

WOMEN INJURED BY ABORTION

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------CATHERINE GLENN FOSTER

MARY J. BROWNING

Counsel of Record

FIRST RIGHTS GLOBAL

ALLAN E. PARKER

P.O. Box 12762

R. CLAYTON TROTTER

Columbia, SC 29211

NATHAN T. SELTZER

(301) 728-2026

catherine@firstrightsglobal.com THE JUSTICE FOUNDATION

8023 Vantage Dr., Ste. 1275

San Antonio, TX 78230

(210) 614-7157

mbrowning@

thejusticefoundation.org

Counsel for Amici Curiae

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

Interest of Amici Curiae Women Injured By

Abortion ............................................................

Summary of Argument ........................................

Argument .............................................................

Respondents Have Article III Standing to

Challenge the FDA’s Actions Because Respondents – Doctors and Associations of

Doctors – are Directly Injured Because

They Treat Women and Girls Who Are

Showing Up in ER’S By the Hundreds of

Thousands..................................................

A. The FDA Arbitrarily Ignored the

Voices of Women Hurt by Chemical

Abortion – It is Not Like “Taking a

Tylenol”................................................

B. The Balance of Harms Weighs in Favor

of Upholding the Decisions Below ........

C. It is Arbitrary and Capricious for the

FDA to Call This Drug a “Termination

of Pregnancy” and Ignore the Reality

Faced by the Women Who See “My

Baby” ......................................................

D. FDA Ignores Improper Disposal of Human Remains ......................................... 12

E. FDA Undervalues Irreparable Harm to

Women From Deceptive Marketing ...... 14

TABLE OF CONTENTS – Continued

Page

F. It is Undeniably True That Abortion

Pills Increase the Risk and Frequency

and Harm of Coerced, or Forced, Abortion ......................................................... 24

II.

The FDA’s Actions were Arbitrary and

Capricious Because the Actions Failed to

Take into Account the Harm to Women

and Minors ................................................ 28

III.

Comstock Act Violated .................................

IV.

Abortion is Not Healthcare .........................

V. FDA Failed to Consider a Safer Alternative ...

Conclusion............................................................ 31

Prayer......................................................................

APPENDIX 1

Names of Amici 2,743 Women Hurt by

Abortion ............................................................ App. 1

iii

TABLE OF AUTHORITIES

Page

CASES

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

215 (2022) .............................................. 1, 4, 6, 30, 31

Doe v. Bolton, 410 U.S. 179 (1973) (abrogated by

Dobbs v. Jackson Women’s Health Org., 597

U.S. 215 (2022)) .........................................................1

Gonzales v. Carhart, 550 U.S. 124 (2007) ......... 5, 22, 31

June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103

(2020) (abrogated by Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215 (2022)) ..............4

Planned Parenthood Minn., N.D., S.D. v. Rounds,

530 F.3d 724 (8th Cir. 2008) (en banc) ....................29

Roe v. Wade, 410 U.S. 113 (1973) (abrogated by

Dobbs v. Jackson Women’s Health Org., 597

U.S. 215 (2022)) ................................................... 1, 31

STATUTES

18 U.S.C. § 1461 ........................................ 22, 27, 28, 31

S.D. Codified Laws § 34-23A-10.1 ..............................29

OTHER AUTHORITIES

César Rodriguez, Affidavit: Mother tried forcing

pregnant daughter to have an abortion, Laredo

Morning Times (Apr. 5, 2023), https://www.

lmtonline.com/local/article/laredo-police-womantried-forcing-teen-daughter-17880448.php ............27

TABLE OF AUTHORITIES

Page

Daniela Hurtado & Courtney Fischer, Man accused

of putting abortion-inducing drug in wife’s

water takes deal, to serve 180 days in jail,

ABC13.com (Feb. 7, 2024), https://abc13.com/

houston-abortion-case-attorney-mason-herringaccused-of-forcing-induction-to-have-an/

14395435/ ................................................................25

Priscilla K. Coleman, Abortion and Mental

Health: Quantitative Synthesis and Analysis

of Research Published 1995-2009, BRIT. J.

PSYCHIATRY (2011) Sep;199(3):180-6, DOI:

10.1192/bjp.bp.110.077230 (meta-analysis of

22 studies) .................................................................1

INTEREST OF AMICI CURIAE

WOMEN INJURED BY ABORTION1

Amici 2,743 Women Injured by Abortion2 are

women who were injured by their own abortions and

their abortionists. Most of the Amici Women Injured

by Abortion suffered grievous psychological injuries,

but many suffered severe physical complications as

well. All were exposed to the risk of serious physical

injury, as well as serious psychological injuries,3 and

thus have a profound interest in protecting other

women from such injuries. All of the Amici Women

have personally experienced abortion.

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

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.

Attached as Appendix 1 is the list of the initials, first

names, or full names of the Amici Curiae Women. In order to protect their identities, some of the women have requested that we

use initials only or first name only. Protecting the identity of

women who have had abortions or seek abortions has been customary since Roe v. Wade, 410 U.S. 113 (1973) (abrogated by

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022)), and

Doe v. Bolton, 410 U.S. 179 (1973) (abrogated by Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215 (2022)), where Roe and Doe

both were pseudonyms.

See, e.g., “Women who had undergone an abortion experienced an 81% increased risk of mental health problems, and

nearly 10% of the incidence of mental health problems was shown

to be attributable to abortion.” See Priscilla K. Coleman, Abortion

and Mental Health: Quantitative Synthesis and Analysis of Research Published 1995-2009, BRIT. J. PSYCHIATRY (2011)

Sep;199(3):180-6, DOI: 10.1192/bjp.bp.110.077230 (meta-analysis

of 22 studies).

SUMMARY OF ARGUMENT

Physicians and associations of physicians – Respondents – have Article III standing to bring this action. They are the ones in direct contact with the

women and girls needing care. The emergency room

physicians are the ones to whom the FDA and the

abortion industry are passing off women and girls in

medical crisis.

This causes direct injury to the physicians providing the care, by the very nature of what is creating the

emergency – a child’s death and a physically and emotionally traumatized mother. Respondents come face to

face with this, regularly, as a result of FDA’s actions

approving the chemical-induced death of the child, and

the removal of the minimum safeguards in place prior

to 2016. The injuries to Respondents are directly related to FDA’s actions in approving the drug for market and the subsequent actions of the agency,

thereafter. Danco, as the manufacturer of the approved

chemical abortifacient, is equally culpable for this

harm. Respondents have standing to bring this action.

The injury to Respondents is directly related to FDA’s

actions, and the harm can be redressed by affirming

the District Court.

Much harm has come to women from abortion. The

FDA has chosen to look away from the harm, arbitrarily

and capriciously superfluous. Its actions of approving the

drug, then eliminating minimal safeguards (REMS)

and removing the reporting of almost all adverse

events, combined with no physician prescriber and

mail-order delivery is arbitrary and capricious. The

FDA has chosen to look away from the pain and the

harm to women and girls for which it is responsible.

This brief is an invitation to stare into the ugly truth

of abortion – to not look away.

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

ARGUMENT

Respondents Have Article III Standing to

Challenge the FDA’s Actions Because Respondents – Doctors and Associations of

Doctors – are Directly Injured Because

They Treat Women and Girls Who Are

Showing Up in ER’S By the Hundreds of

Thousands

A. The FDA Arbitrarily Ignored the Voices

of Women Hurt by Chemical Abortion –

It is Not Like “Taking a Tylenol”

Women with firsthand accounts of their own experiences of chemical abortion can present the best evidence of the harm of abortion. Many accounts of

women arriving in ER’s with serious injuries are included in the evidence in the record below. This brief

will not discuss the record, in detail, since it will be

covered by many other briefs. Amici have their own

horrific experiences.

Amici are extremely grateful to the physicians and

medical organizations who have attempted to ensure

proper medical protections for patients like them.

Amici strongly support the right of these medical

doctors and associations of doctors to represent Amici’s

rights as injured parties. Amici were injured by

abortion. If doctors in this case are not granted standing, then Amici and women like them will have no representation before the Courts.

The abortion industry wants more volume, and

more profits, with no boundaries. The abortionists and

medication manufacturer have a conflict of interest

with women seeking abortions who will be damaged by

Petitioners’ actions. Abortionists have been granted

standing to set aside protections for the health of

women. See June Med. Servs. L.L.C. v. Russo, 140 S. Ct.

2103 (2020) (abrogated by Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2028 (2022)). Equal justice requires standing to be granted to those doctors whose

interests are in reducing harm to women, as such interest is congruent with the interests of women who

will be injured by abortion.

As the Amici’s experience below shows, women are

routinely not adequately informed of the true nature of

abortion and routinely not provided any follow-up care.

The FDA and abortion industry have created a process

– chemical abortion – to avoid seeing the woman at all,

while delegating the physician’s duty and follow-up

care to non-physicians, or emergency room doctors,

such as Respondents. High volume, low- or no-doctor

contact methods of obtaining abortion-producing

drugs, by mail or common carrier, increases profits for

the sellers and increases the risk of harm and death to

women and girls.

B. The Balance of Harms Weighs in Favor

of Upholding the Decisions Below

Abortion-producing drugs result in deep pain and

injury to women as they shockingly see their dead babies in their own homes.4 The harm of abortion to

women has been known for decades.5

Even ardent abortion defender Justice Ginsburg

wrote that “for most women, abortion is painfully difficult.” Gonzales v. Carhart, 550 U.S. 124, 183 n.7 (Ginsburg, J., dissenting).

C. It is Arbitrary and Capricious for the

FDA to Call This Drug a “Termination

of Pregnancy” and Ignore the Reality

Faced by the Women Who See “My Baby”

These are women’s actual chemical abortion experiences as written in their own words.6 Warning: these

accounts describe “particularly gruesome or barbaric

Link to Expanded Statements of Women’s Abortion Pill Experience: https://www.dropbox.com/scl/fi/0dfjxtbnxnlrrsfd40ul3/

Expanded-Statements-of-Amici.docx?rlkey=hhy9cqz3ql2oijut4u5w0

05wz&dl=0.

See 4,794 Testimonies of Women Injured by Abortion Collected by Operation Outcry, a project of The Justice Foundation.

These women’s sworn affidavits or declarations made under penalty of perjury are available here: https://www.dropbox.com/

scl/fo/e9inhs1lduj4du26hod9z/h?rlkey=z4ggh2g6s8tnjh17qxyzgm

j8x&dl=0.

The excerpts of the women’s statements included in this

brief are condensed versions of more complete versions in Expanded Statements of Women’s Abortion Pill Experience, supra

note 4.

medical procedures.” See Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215, 301 (2022).7

#1 Amicus Abby Johnson: “ . . . (P)raying

that I wouldn’t die”

“ . . . I had a surgical abortion. . . . I was given

conscious sedation. . . .

. . . I started volunteering for Planned

Parenthood. Shortly after. . . . I chose a chemical abortion. . . . I was told by the clinic staff

that it would be more ‘natural’ . . . ‘like having

a heavy period’. I was given the . . . pill in the

clinic and [was] told that [it] would ‘stop the

pregnancy.’ I was told to insert 800mcg of

Misoprostol vaginally 24 hours later. Within

30 minutes. . . . I began to hemorrhage and

pass clots . . . intense cramping. I had never

experienced pain so severe. . . . I began to

vomit. . . . I was passing clots the size of lemons. I. . . . scooped my baby up . . . and . . .

wasn’t sure what to do. No one had prepared

me for that . . . It felt wrong . . . but . . . I

dropped my child in the toilet, closed my

eyes, and flushed.

I hemorrhage[d] for hours. . . . I just laid on

my bathroom floor. . . . Blood was everywhere. . . . I remember falling asleep on the

floor and praying that I wouldn’t die. I bled

and passed large clots for eight weeks. The

cramps were debilitating. . . . I went back to

volunteer at Planned Parenthood . . . my goal

Part of the women’s statements are in bold for emphasis

throughout the brief. That emphasis has been added.

. . . [was] to convince every chemical abortion

patient to have a surgical abortion. . . . I didn’t

want any woman to go through what I had

gone through. . . .”

#2 Katherine: “I thought I was going to

die”

“ . . . I hated myself ! . . . Chemical abortion

was my answer . . . a couple of pills and the

whole thing will be over. I was given a pill to

take at the clinic and sent home with pills to

place internally . . . intense cramping . . .

bleeding . . . large pieces of bloody tissue . . .

nausea . . . weakness. I thought I was going

to die there all alone. I was sure I needed

medical attention but I was so afraid of the

exposure. . . .”

https://www.silentnomoreawareness.org/

testimonies/testimony.aspx?ID=2329

#3 Amicus Kelly Lester: “I felt like I was

walking through hell.”

“I had four abortions in my life. My first was

at 15-years-old and was a surgical abortion. I

used the abortion pill for my second abortion

at 19-years-old because my first abortion was

traumatic. I thought the pill would be easier,

less traumatic on my body, and well, it was

cheaper than going the surgical route. The

baby’s father was against the idea and didn’t

put money towards it so overall, it seemed like

the better option.

But it wasn’t. It was one of the most horrific

experiences of my life. I was told by the abortion clinic that it wasn’t a big deal, that it was

easy and private. I was in the first trimester

but I don’t remember how far along, probably

near the end of those first 12 weeks as I

tended to do things at the last minute. The

clinic didn’t even do an ultrasound, just a

urine test to prove I was pregnant.

The bleeding and the pain started almost immediately and it was intense. The pain lasted

for two days and I felt like I was in full-blown

labor. I was alone, in one of my bathrooms in

my apartment. I was doing drugs just to try to

numb the pain. And in the end, I ultimately

broke my lease and moved out because I

couldn’t stand to be in the apartment any

longer and experience the trauma again every

time I used the bathroom.

Years later, after another abortion, I ended up

working for that same clinic where I had my

abortion pill abortion. I had to tell women the

same things I was told when they asked for

the abortion pill – that it was like a heavy period and not a huge deal. But I took so many

calls from women who were going through

that same, intense pain I went through years

earlier and felt duped by the clinic.

I have since left the abortion industry and my

drug-fueled life behind and now work to get

workers out of the abortion industry and testify in front of committees and organizations

telling my own story. There are some huge

missing pieces in the public fight over access

to abortion pills, pills which apparently nonpregnant women in the United States have

been stockpiling for the last 18 months.

I wouldn’t wish any of my abortion procedures

on anyone, especially the abortion pill experience. I felt like I was walking through

hell.

Women don’t deserve that.8

#4 Courtney: “I felt like I aided in the

murder of my child. . . .”

“ . . . I couldn’t change my mind . . . it would

make the staff mad. . . . I was given . . . RU486 . . . to take . . . in the clinic. They never

told me . . . [it] would . . . starve my baby to

death . . . they just said it would stop my pregnancy and keep my “embryo” from becoming a

baby. They made it seem as safe . . . as taking a Tylenol. They then gave me a second

pill (Cytotec) to take the next day.

They didn’t tell me . . . it was to induce strong

contractions to expel my baby’s corpse-. . . just

. . . it was necessary to ensure my abortion

was successful. I took the second pill . . . , expecting [what] they had told me.

. . . – I experienced very intense, painful

cramps as my body expelled my baby . . . into

I had 4 abortions. The abortion pill was the worst, but

women aren’t getting the full story. Kelly Lester is Outreach Director for And Then There Were None. Her story is featured on

https://www.littlepillsthatkill.com/.

the toilet. . . . A toilet. I wish . . . I would’ve . . .

buried it.

This abortion was . . . harder . . . than the surgical abortion. . . . I aided in the murder of my

child. . . . I was told a pill was “easier and

safer” than a surgical abortion; it’s not.”

https://www.silentnomoreawareness.org/

testimonies/testimony.aspx?ID=2256

#5 Patricia: “Everything the Doctor Told

Me Was a Lie. . . . I believed I was dying”

“ . . . the ‘abortion pill’ . . . I viewed as an ‘easy

way out.’

. . . I returned to planned parenthood and

spoke with the . . . doctor. . . . He told me . . .

there was nothing to worry about, that I

would have ‘some bleeding, and possibly clotting’ . . . complications . . . were rare, I believed him.

. . . [A]t home alone with my infant son, I took

the abortion pills. Within one hour I knew

that everything the doctor had told me was a

lie. I was bleeding so heavily, I believed I was

dying. I was passing clots the size of baseballs,

and I was in the worst physical pain of my life,

worse than childbirth. . . . I looked into the

toilet and saw my baby. It had a head, body,

and tiny arms and legs. The shame and

guilt. . . . I felt . . . as I was forced to flush my

aborted baby down the toilet, is impossible to

describe. . . .

About 3 weeks later, I woke up . . . covered in

blood, and still bleeding. I rushed to the ER

. . . my body had not passed all of my former

pregnancy. A doctor used several giant q-tips

to scrape my insides, and I had weekly visits

to my OBGYN. . . .” https://www.silentnomore

awareness.org/testimonies/testimony.aspx?

ID=4202

#6 Amicus Tracy Reynolds – A Phone Worker for

an abortion recovery program.9 “ . . . (T)here has

been an increase in calls for abortion recovery regarding the traumatic effects of . . . the ‘abortion pill’. These

calls often occur in the middle of the night from women

who have taken the ‘abortion pill’ without understanding the effects and with no medical professional’s supervision.” For example:

#7 From C.: ‘ . . . my tiny baby floating in

the toilet bowl . . . ’ ‘ . . . my husband felt . . .

[it was] too soon after our marriage to have a

baby . . . He strongly pressured me to take the

‘abortion pill’. . . . I did not receive any information . . . about medical/emotional consequences. It was the most traumatic experience

I’ve ever had, seeing my tiny baby floating in

the toilet bowl . . . followed by excessive bleeding. I still have nightmares and I will never

forget. . . . [We] are now trying to conceive but

. . . my progesterone levels were off, which . . .

could be an after effect of the abortion pill. . . .’

Amicus Tracy Reynolds works for a non-profit that provides

hope and healing for those broken through traumatic events, including abortion.

D. FDA Ignores Improper Disposal of Human Remains

#8 From Amicus Serena – She Found His Grace

(SFHG).10 SFHG runs a hotline and has other forms

of ministry which enables abortion-wounded women to

seek help. . . . “Women who take the abortion pill contact us pretty quickly because of seeing their babies

and because of the medical trauma they are too embarrassed to talk to anyone about.” Following are some of

the contacts received by SFHG.

#9 My 9-week unborn child sits in my

freezer

“I took the first pill. . . . I felt my baby

pass. . . . I bled so much that I passed out.

Nobody prepared me for the amount of blood

I lost. I ended up in the ER. I spent hours

there. . . .

I felt like I murdered my child. . . . I have so

much hate in my heart.

My 9-week unborn child sits in my freezer. I’m

trying to find the strength to bury her. . . .”

#10 I couldn’t bear to flush my baby down

the toilet . . .

“ . . . I took the pills and was told I had to wait

over 24 hours. After being in a lot of pain for

over 24 hours. I knew it didn’t work. I went to

the ER on Christmas Day to see if I could

change my mind. . . . I . . . went home. . . . I

She Found His Grace, https://www.shefoundhisgrace.org.

. . . [felt] a big clot drop, then came a tiny perfectly formed 10-week baby and I lost it.

I couldn’t bear to flush my baby down the

toilet so I got him out and washed him

off. I was frozen in guilt, shame, and regret. I

plan to bury him behind my house. I can’t

stop crying and I feel so ashamed.”

#11: I got sick with a bad case of sepsis

and almost lost my life. . . .

“ . . . I walked around for a month with my

dead babies inside of me. . . . I took another

dose of abortion pills and. . . . I was in pain

and bleeding but nothing came out. I was

walking around a whole week in pain before I

got sick with a bad case of sepsis and almost

lost my life.

I . . . started to feel uneasy, clammy, and in

pain. . . . I was across the street from the hospital and barely walked myself over for help. I

was covered in blood and stabbing pains in my

stomach. I was in the hospital for 4 days treating my infection.

[I delivered] my twins and kept them in the

. . . fridge for a month before my dad flew out

to help me bury them. . . .”

E. FDA Undervalues Irreparable Harm to

Women From Deceptive Marketing

More reports from Serena of SFHG:

#12 It didn’t seem like it was an abortion

since it was a pill. . . .

“ . . . a day I will never forgive or forget. I had

. . . been anti-abortion but in a domestic violence relationship. . . . It didn’t seem like it

was an abortion since it was a pill. I was

delusional. . . . My [boyfriend] at the time almost killed me and my dog. . . . He choked my

dog. . . . He told me that my grandma needed

to take me to Planned Parenthood. . . . I

started to bleed and went to the ER. The sac

came out and I lost my baby. . . . I flushed my

baby down the toilet. I am forever sorry. . . . I

went down a path of destruction after my

abortion. My abortion will affect me for the

rest of my life. . . .”

#13 I just died a little bit and I’m not the

same person

“I regret my abortion so much. . . . I think

about it [every day]. I did it out of fear . . . [M]y

family disapproved and were not supportive. I

. . . was pregnant at 19. . . . Taking the pill was

traumatizing when I saw my baby in the [sac].

I just died a little bit and I’m not the

same person I was.”

My boyfriend and I miss our baby and regret

taking the abortion pill. . . .”

#14 I fainted from the amount of blood

lost and had to be carried out

“ . . . I [took] the pill. Everything seemed to

[be] normal. I passed the [baby].

I never stopped bleeding. [I thought] it was

the abortion followed by my period. A few

weeks [passed] and I [started] losing a lot of

blood. And ‘another’ pops out. The blood clots

got larger. I fainted from the amount of

blood lost and had to be carried out of my

apartment by my [boyfriend] and our Roommate. I thought I was going to die. 10-hour

ER visit and lots of meds. . . . It was the scariest thing I’ve ever gone through

I regret my decision.

#15 I looked in the toilet. . . .

“I was 9 weeks and 5 days and took mine

orally. The only time I was in pain was when I

was passing the baby. The first cramps started

when I started my second pills and then

slowly [it] got better . . . after I finished

them. . . . I bled excessively. I looked in the

toilet when the baby came out and ended

up throwing up. . . . I regret looking. . . . I’ll

never get that image out of my head. . . .”

#16 I hated myself . . . things trigger

me. . . .

“My partner paid for it. . . . I was 1 month

[and] . . . 2 ½ weeks [when] I terminated. I

took the pills at the clinic, came home and instantly felt a wave of depression splash over

me. The next day I took the rest and started

bleeding instantly. Within 45 min . . . a mandarin sized clot came out. I . . . believed was

the embryo . . . from that moment I hated

myself.

. . . things trigger me. . . . What would my

child have become? The instant [feeling] of regret filled me and I cried. . . .”

#17 I’m haunted by [my baby’s] eyes. . . .

“I’ve recently had my abortion. . . . It’s painful

and brings up all sorts of emotions. . . . [I]t is

indeed traumatizing. . . . I feel guilt and sadness of what could’ve been, because I [saw]

[its] eyes before I flushed it away. . . . No one

prepared me for this. . . . [Every day] I burst

into bouts of tears because it was my

baby, but I couldn’t undo it. . . . I’m

haunted by [its] eyes. . . .”

#18 I thought I wasn’t going to make it.

“ . . . I had a medical [chemical] abortion and

it was traumatic. I got very sick, couldn’t stop

throwing up and was out of commission for

days. I was told to take another dose as I may

be sick because I didn’t get rid of everything I

was supposed to. [After] that second dose the

sickness went away but I ended up having

nonstop gushing blood [and went to] the

emergency room. By the time I arrived I was

so dizzy I just about fainted on the gurney. It

was SO SCARY. I thought I wasn’t going to

make it.”

#19 they proceeded to scrape my womb

repeatedly and with each scrape being

rougher

“I was supposed to be admitted and monitored

. . . but they decided otherwise, they gave me

an oral pill and inserted another vaginally

and I was sent home and told to wait for the

whole procedure to be completed. . . . [T]he

wors[t] pains of my life, got super sick and

the fetus ended up coming out but there were

residual products. I went back to the hospital

told the Dr.’s . . . that I felt like there was

still something in my womb. . . . [They] did an

ultrasound and . . . there was . . . and they

decided . . . they would clean my womb. . . .

[T]hose two Dr.’s gave me a pain injection because I’d feel some “mild discomfort”. . . .

[T]hey proceeded to scrape my womb

repeatedly . . . each scrape being rougher

[than] the previous, I could feel myself get

numb from the pain from my waist down to

my legs. I pleaded with them to stop . . .

they just continued to scrape and scrape

and scrape. . . . [At] some point I felt like I

was about to pass out. . . . I was screaming

and pleading with them to stop.”

#20 I was on the shower floor SCREAMING. . . .

“Mine was so bad I was on the shower floor

SCREAMING, throwing up, bleeding everywhere, the pain was unbearable and unimaginable . . . and I have had brain surgery!!! . . .

NOBODY prepared me for the HUGE amount

of blood and chunks, the intense excruciating

pain, the nausea. . . . I was in the most pain I

have ever felt, I almost wanted to die. . . . It

was the most traumatic thing I have ever experienced and I still feel a sense of being

numb. . . .”

#21 the most pain I have ever been in, in

my life

“[I] took the mifepristone. . . . They told me . . .

to wait thirty minutes, take the ibuprofen and

anti-nausea meds . . . wait another thirty

minutes and then insert the 4 misoprostol

tablets vaginally . . .

I laid there for about an hour . . . suddenly I

shot awake with a sharp cramp. . . . I was in

the most pain I have ever been in, in my life.

The cramps were nothing like I ever . . . expected. I was . . . writhing in pain with a heating pad that did . . . nothing. . . . I . . . was

screaming into my pillow . . . [O]nce I started

[bleeding] it came in floods. . . .”

#22 It’s just sitting in my bathroom. . . .

“I took my second pills . . . & this little sac

came out of me. . . . I’ve been crying ever since.

My husband is asking if I want to bury it &

it’s just sitting in my bathroom until I

make up my mind. I feel VERY overwhelmed. . . .”

#23 . . . I can’t cope and can’t live with

myself after what I have done.

“I’m 18 and . . . just had my abortion. I passed

my baby today and my heart broke. I have a

one-year-old son . . . I absolutely HATE myself

for this and I honestly feel like I can’t cope

and can’t live with myself after what I

have done.”

#24 . . . I had to catch my baby and pull it

out of my body. . . .

“ . . . only on day 5-6 of life after losing my

baby due to . . . abortion. . . . I’m . . . find[ing]

it hard to even look my little boy . . . (he’s

12months old). I have to keep [going] to the

car to sit . . . and cry. I had to catch my baby

and pull it out of my body. . . . I wrapped

my poor angel in tissue and have kept it

ever since . . . and yes I will get rid of it soon.

I’m only 18 and I’m completely and utterly

traumatized. . . . I regret my decision. . . . I

can’t live with myself any longer, I can’t cope

with it any longer and I just don’t know what

to do. Everything hurts far too much to

[bear].”

#25 . . . the baby came out full force. . . .

“I took the pills and went to take a shower. . . .

I heard 2 pops and when I stood up the baby

came out full force. I was extremely traumatized. I was 10 weeks and 6 days [pregnant].”

Excluding effects such as these in the FDA warnings

and labeling is arbitrary, capricious, and misleading,

and irreparably injures women as shown below:

#26 A.C.: . . . told me to call 911 . . . :

“As I waited . . . at . . . Walmart . . . for my hydrocodone, I felt the rush of blood. . . . I . . .

look[ed] down at my jeans and was shocked to

see. . . . I was covered in blood; from the top of

the inseam down to my knees. . . . Tears began

to flood my eyes . . . horror and embarrassment. . . . I couldn’t imagine this was . . . a

heavier than normal period, . . . my shock . . .

turn[ed] into sorrow when I . . . found the sac

with my tiny baby in it. . . . I held her for a

moment before folding up the toilet paper and setting it into the feminine products bin. . . . I picked up my cell phone to call

[the clinic], . . . a monotone, stoic voice . . . told

me to call 911 . . . they were ‘unable to help

me through the phone. . . .’ I hung up the

phone . . . and lied there in the fetal position. . . .”

“The bleeding continue[d] for days. . . .

There was also a smell . . . [that] reminded

me . . . of what I had done. No one prepared

me for this. . . . I hope they never . . . know the

horror of abortion . . . a part of me, along with

my baby, died that day . . . , I can share my

experience in hopes to bring awareness and

put an end to this disgusting practice they

call healthcare.”11

#27 From Stephanie – Phone coach for helpline12

‘ . . . the cat had eaten the baby’

“ . . . helpline is a 24-hour, 7-day a week, 365

days a year helpline

“A caller had a chemical abortion the day

prior . . . the baby [is] in front of her on the

counter and, ‘it has hands and feet and toes

and fingers and eyes and she cannot flush the

baby down the toilet. . . .’ . . . Her father told

her to call somebody . . . she called Helpline.

She . . . struggles with depression . . . [and]

cannot imagine just throwing the baby in the

trash or down the toilet. . . .”

“ . . . she was broken up and crying . . . wrapping the baby up and storing the baby in the

freezer until . . . the ground thawed [enough]

to bury the baby.

. . . [S]he began to scream . . . she felt like she

was going to faint . . . she laid her baby on the

counter while we were talking and when she

turned around the cat had eaten the baby.

She was crying hysterically. . . .”13

Quoted from A.C.’s email to counsel.

Stephanie is a volunteer phone coach for a helpline for

people who need help after abortion. Stephanie has handled close

to 600 calls.

Quoted from Amicus Stephanie’s email to counsel.

It is dangerous, arbitrary, and capricious for the

FDA to dehumanize this “infant life” per Gonzales, 550

U.S. 124, at 159, and force the woman to view the

baby’s corpse in her own home. This type of irreparable

harm heavily weighs the preliminary injunction balance in favor of enjoining the abortion producing drug,

as required by Comstock Act. 18 U.S.C. § 1461.

#28 Amicus Yolanda has been a volunteer coach

for another helpline for women hurt by abortion for a

little over a year and a half. She has taken 282 contacts, which are in the form of text messages or phone

calls.

“One of the most difficult experiences is when

callers are reaching out for medical assistance

because of complications from taking RU-486.

When she asks them if they have contacted

the company from where they received the

pills, they frequently either don’t have any information or there’s no answer. Some are in

the midst of full-blown emergencies and need

medical attention. Some are just scared. They

don’t know what to expect and are all alone.”

The following are situations Yolanda encountered:

String still attached

A woman called . . . at 1a.m. She took . . . mifepristone and – she was holding the fetus

in her hand but the “string” was still attached and she didn’t know what to do with

it.

Parents down the hall

A young girl called who took mifepristone and

was in the process of having her abortion in

her bedroom and wanted someone to talk to.

She was scared and didn’t know what to expect. I asked her if she had any support from

her parents. They were in the other room and

didn’t know what she was doing.

15-year-old niece buried her baby, dug

up, re-buried, dug up again . . . where to

bury the baby?

A woman was calling for her 15-year-old niece

who was sobbing in the background. She had

buried, dug up and reburied her aborted baby.

No one could calm her down. After the baby

was aborted, she put it in a small box and

buried it, in a high traffic area in their yard.

So she dug it up and reburied it again.

She was told to move it because there was a

problem with where she buried him the second time. This 15-year-old now has a graveyard in her backyard.

“These are just a few of the calls I’ve taken . . . the

Abortion pill has not only changed their lives but mine

as well.”14

The FDA fails to account for dead babies in toilets

and backyards. What do you do with chemical waste?

No other drug produces human remains for disposal by

lay individuals.

Quoted from Amicus Yolanda’s email to counsel.

Injuries to women are also unreported because

online or email sellers encourage women to report complications as being the result of miscarriage, not

abortion. For example, AidAccess.org,15 an online abortion pill distributor, sends an email when chemicals for

a do-it-yourself at-home abortion are shipped. The

email says:

“ . . . There are no blood tests that can show

that you have taken Misoprostol, so there will

be no way to prove that you tried to do an

abortion. . . . If you think you might have a

complication you should go to a doctor immediately. You do not have to tell the medical

staff that you tried to induce an abortion; if

you choose, you can tell them that you think

you had a spontaneous miscarriage. Doctors

have the obligation to help in all cases. . . .”

Abortion purveyors – Danco, the FDA, et al. – rely on

ER doctors being available to clean up the mess while

being lied to about causation.

F. It Is Undeniably True That Abortion

Pills Increase the Risk, Frequency, and

Harm of Coerced and Forced Abortion

The failure to have direct supervision by a licensed

medical physician, along with mail and common carrier delivery, increases the irreparable harm, including

that of pressured, coerced or forced abortions. For

Email on file with Amici attorneys. Also see AidAccess,

Homepage, https://aidaccess.org (last visited Feb. 29, 2024).

example, an attorney from Houston pleaded guilty to

assault of a pregnant woman related to his attempts to

cause his wife to abort their baby by putting an abortion-inducing drug in her water.16

Here are more examples of forced or unduly pressured abortions more fully described in Expanded

Statements of Women’s Abortion Pill Experience, supra note 4:

#29 “ . . . my boyfriend and parents insisted. . . .”

‘ . . . my boyfriend and parents insisted

. . . I was too young and I should have an abortion. I live . . . where abortion is . . . illegal,

so my boyfriend took me to New Mexico. . . . I

paid $900 for a chemical abortion. When I returned. . . . I was in severe pain and started

bleeding profusely. I was afraid to go to the

ER . . . because abortion is illegal. . . . I called

the helpline and they . . . [said] I needed to go

to the ER.’

#30 “ . . . my boyfriend strongly pressured

me. . . .”

‘ . . . my boyfriend strongly pressured me

to have an abortion. . . . [It] was too soon in

our relationship . . . He suggested . . . the

abortion pill, . . . a website . . . made it sound

Daniela Hurtado & Courtney Fischer, Man accused of putting abortion-inducing drug in wife’s water takes deal, to serve 180

days in jail, ABC13.com (Feb. 7, 2024), https://abc13.com/houstonabortion-case-attorney-mason-herring-accused-of-forcing-inductionto-have-an/14395435/.

very easy and ‘just like taking a Tylenol’. It

was the most horrific experience I’ve ever

been through . . . no information given about

what I would experience . . . and that I would

. . . expel the baby. I bled excessively and for

weeks had nightmares. . . .’17

#31 Boyfriend giving RU-486 pills because they had unprotected sex

One man was calling for his girlfriend who

had had a chemical abortion using . . . RU-486

. . . a few months before and since they had

unprotected sex, started giving her more of

the pills. . . .18

#32: “ . . . he said he would kill me and my

oldest child.”

“ . . . I was forced to have an abortion. . . .

I was pregnant and . . . he didn’t want this

baby . . . he would make sure it didn’t [survive]. He said he would kill me. . . . He

threatened if I didn’t get rid of it he would

kill me and my oldest child. . . . I would run

away . . . he said he would find us and kill us.

He would punch me in the stomach as hard as

he could to try to miscarry the baby. I finally

agreed. . . . He wouldn’t stop threatening

my life [and] my other child. [If it] was just

me, I would have run away . . . but he threatened not only my life but my one-year-old as

well.

Quoted from Amicus Tracy Reynolds’ email to counsel.

From Amicus Yolanda contact.

. . . I was alone and scared. . . . I wanted to

tell them I was being forced but I was

[too] scared [that] he would come after me.

. . . I was alone the entire process. My cramps

got so intense I found myself on the bathroom

floor. I made it to the toilet. . . . I dissociate

from it a lot. I have had 2 or 3 miscarriages

after. . . .”

Without physician supervision, and by ignoring

the Comstock Act, which prohibits the mailing of

abortion-producing drugs, 18 U.S.C. § 1461, the FDA

abortion-producing drug protocol does not adequately

screen for, or prevent unduly pressured, coerced, or

forced abortions. Of the 4,794 Operation Outcry testimonies of Women Injured by Abortion, over 2,000

women, say they were pressured by someone else into

having an abortion.19 Coerced abortion is a common

problem throughout the United States, and the FDA’s

2016 and 2021 changes make forced or coerced abortions even more likely.

One Texas mother has already been arrested for

forcing her child to take an abortion pill.20 These events

will be much more frequent if the FDA’s 2021 changes

remain operative.

See 4,794 testimonies of Women Injured by Abortion collected by Operation Outcry. https://www.dropbox.com/scl/fo/e9inh

s1lduj4du26hod9z/h?rlkey=z4ggh2g6s8tnjh17qxyzgmj8x&dl=0.

César Rodriguez, Affidavit: Mother tried forcing pregnant

daughter to have an abortion, Laredo Morning Times (Apr. 5, 2023),

https://www.lmtonline.com/local/article/laredo-police-woman-triedforcing-teen-daughter-17880448.php.

Stopping this abuse is a far greater benefit for

women and girls and prevents irreparable harm.

II.

The FDA’s 2016 and 2021 Actions were Arbitrary and Capricious Because the Actions Failed to Take into Account the Harm

to Women and Minors

Women hurt by abortion-producing drugs are routinely faced with this question: “What do I do with my

baby?” For some, the septic system has become a graveyard. For others, their backyard. Others have flushed

their babies down the toilet, and the public sewer system has become the graveyard. Some women are keeping their babies in their freezer until the ground thaws

or until they can figure out what to do. One woman left

her baby in the feminine products disposal in the

Walmart bathroom. And for another traumatized

woman, the family cat was discovered eating her baby

while she was considering what to do. See p.28 and Expanded Statements of Women’s Abortion Pill Experience, supra note 4.

III. Comstock Act Violated

There is a reason the Comstock Act was passed. It

is the only federal law directly expressing Congress’s

view on abortion pills and explicitly criminalizes the

mailing or delivery of drugs “for producing abortion.”

18 U.S.C. § 1461. An abortion-producing drug is not

medicine.

IV. Abortion is Not Healthcare

The FDA has clearly not considered the threat to

the public health of having no acceptable plan for disposing of the millions of aborted babies, not to mention

the total disregard for the humanity of the lives targeted for destruction by the drugs.

The arbitrary and capricious actions of the FDA

do not protect women and girls. The FDA action lends

the stamp of approval, the imprimatur of legitimacy, to

abortion drugs. This action, combined with the appearance of the FDA protocol being “safe” and involving the

medical community, works together to mislead women

and girls, that it is acceptable, natural, normal, even

routine. Just stay home, take some drugs that kill your

baby, and dispose of the baby’s remains yourself.

The State of South Dakota required abortionists

to tell women that “abortion will terminate the life of

a whole, separate, unique, living human being.” S.D.

Codified Laws § 34-23A-10.1(1)(b).

This truth was upheld in federal court. See

Planned Parenthood Minn., N.D., S.D. v. Rounds, 530

F.3d 724, 737-738 (8th Cir. 2008) (en banc) (the required

statutory disclosure is “truthful, non-misleading and

relevant to the patient’s decision to have an abortion”).

No other medical procedure known to the human

race kills one human being for the convenience or even

protecting the health of another human being. Abortion does. Abortion is not healthcare, nor is it a solution

to a medical problem. It is an illegitimate solution to a

social problem: what to do with an “unwanted” child.

FDA Failed to Consider A Safer Alternative

The Safe Haven laws in all 50 states are a much

safer method of eliminating the burden of parenting.

See Dobbs, 597 U.S., at 259 n.45 (referencing Safe Haven laws). It is arbitrary and capricious for the FDA to

fail to consider this alternative when weighing risks

and benefits. This Court should consider Safe Haven

laws when weighing the harms under the preliminary

injunction standard.

Safe Haven Laws in all fifty states eliminate the

burden of unwanted children without killing the child

and administering a death sentence, an execution

cocktail to the child in the womb. These laws avert all

abortion-related trauma as Amici Women Injured by

Abortion describe in horrifying detail.

Throughout the history of the United States, most

states at most times made abortion a crime. See Dobbs

Appendix A, discussing criminal abortion laws at the

passage of the 14th Amendment. If abortion were uncontroversial “healthcare” no rational state would

criminalize abortion. But States have rational “legitimate interests” in such laws. Dobbs states:

“These legitimate interests include respect

for and preservation of prenatal life at all

stages of development; the protection of maternal health and safety; the elimination of

particularly gruesome or barbaric medical

procedures; the preservation of the integrity

of the medical profession; the mitigation of fetal pain; and the prevention of discrimination

on the basis of race, sex, or disability.”

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

301 (internal citation omitted).

It is arbitrary and capricious for the FDA to ignore

the harm to women and girls taking or being given the

abortion drug. This “drug,”21 when it is effective, always results in the death of an “infant life.” This Court

has stated “ . . . it seems unexceptionable to conclude

some women come to regret their choice to abort the

infant life they once created and sustained. See Brief

for Sandra Cano et al. as Amici Curiae in No. 05-380,

pp. 22-24. Severe depression and loss of esteem can follow.” Gonzales v. Carhart 550 U.S. 124, 159 (2007).

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

CONCLUSION

Considering the FDA-approved chemical abortion

regimen any type of “healthcare” is truly a hard pill to

swallow. It is not healthcare. It is not safe. It ignores

harm to women and girls. The FDA’s actions are fruit

of the poisonous tree of Roe. Don’t look away from what

the aftermath of Roe and the FDA’s actions have done.

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

Comstock Act (codified at 18 U.S.C. § 1461).

PRAYER

This court should affirm the lower court, lift the

Fifth Circuit Stay, and find the District Court’s grant

of preliminary relief was proper.

Respectfully submitted,

MARY J. BROWNING

CATHERINE GLENN FOSTER

Counsel of Record

FIRST RIGHTS GLOBAL

P.O. Box 12762

ALLAN E. PARKER

Columbia, SC 29211

R. CLAYTON TROTTER

(301) 728-2026

NATHAN T. SELTZER

catherine@firstrightsglobal.com THE JUSTICE FOUNDATION

8023 Vantage Dr., Ste. 1275

San Antonio, TX 78230

(210) 614-7157

mbrowning@

thejusticefoundation.org

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.