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

Supreme Court briefNov 15, 2023

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No. 23-395

In the Supreme Court of the United States

__________

ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,

Petitioners,

v.

FOOD AND DRUG ADMINISTRATION, ET AL.,

Respondents.

__________

ON CONDITIONAL CROSS-PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________

BRIEF AMICI CURIAE OF 109 MEMBERS

OF CONGRESS IN SUPPORT OF

CROSS-PETITIONERS AND CONDITIONAL

CROSS-PETITION

__________

STEVEN H. ADEN

Counsel of Record

CAROLYN MCDONNELL

DANIELLE PIMENTEL

AMERICANS UNITED FOR LIFE

1150 Connecticut Ave., N.W.,

Suite 500

Washington, D.C. 20036

Steven.Aden@aul.org

Tel: (202) 741-4917

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

STATEMENT OF INTEREST OF AMICI

CURIAE ................................................................ 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 4

I. The FDA Exceeded its Subpart H Authority

by Approving Mifepristone.............................. 4

A. The FDA Misclassified Pregnancy as a

“Life-Threatening Illness” ......................... 6

B. Chemical Abortions Do Not Provide a

“Meaningful Therapeutic Benefit” Over

Surgical Abortions ................................... 10

II. The FDA’s Approval of Mifepristone

Subverted Patient Health and Safety

Safeguards Within Federal Laws ................. 13

A. The FDA’s Failure to Adhere to the

FDCA’s Drug Approval Process Has

Created Significant Health and Safety

Risks to Women and Girls ....................... 15

B. The

FDA

Endangers

Pregnant

Adolescents Seeking Chemical Abortion

ii

Drugs by Subverting the Pediatric Study

Requirement ............................................. 21

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

APPENDIX TABLE OF CONTENTS ...................... ia

LIST OF AMICI CURIAE ........................................ 1a

U.S. Senate.......................................................... 1a

U.S. House of Representatives ........................... 2a

iii

TABLE OF AUTHORITIES

Cases

All. for Hippocratic Med. v. U.S. Food & Drug

Admin.,

78 F.4th 210 (5th Cir. 2023) ...........3, 5, 6, 7, 10

All. for Hippocratic Med. v. U.S. Food & Drug

Admin.,

No. 2:22-CV-223-Z (N.D. Tex. Apr. 7,

2023)......................................................... 21, 22

Burlington Truck Lines, Inc. v. United States,

371 U.S. 156 (1962) ....................................... 14

Dep’t of Homeland Sec. v. Regents of the Univ.

of Cal.,

140 S. Ct. 1891 (2020) ................................... 14

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ............................. 10, 23

H.L. v. Matheson,

450 U.S. 398 (1981) ....................................... 23

Heckler v. Chaney,

470 U.S. 821 (1985) ....................................... 21

Mistretta v. United States,

488 U.S. 361 (1989) ......................................... 1

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ............................. 14, 19, 22

iv

Skinner v. Mid-America Pipeline Co.,

490 U.S. 212 (1989) ......................................... 1

Wisconsin v. Yoder,

406 U.S. 205 (1972) ....................................... 23

Statutes

21 U.S.C. § 355.......................................... 3, 15, 16

21 U.S.C. § 355-1 .................................................. 5

21 U.S.C. § 355c ........................................ 3, 21, 26

21 U.S.C. § 393...................................................... 1

5 U.S.C. § 706.............................................. 1, 3, 15

Regulations

21 C.F.R. § 314.500 ................................. 2, 4, 6, 10

21 C.F.R. § 314.520 ............................................... 4

Investigational New Drug, Antibiotic, and

Biological Drug Product Regulations;

Procedures for Drugs Intended to Treat

Life-Threatening and Severely Debilitating

Illnesses, 53 Fed. Reg. 41,516 (Oct. 21,

1988) (to be codified at 21 C.F.R. pts. 312,

314)................................................................... 9

Investigational New Drug, Antibiotic, and

Biological Drug Product Regulations;

Treatment Use and Sale, 52 Fed. Reg.

v

19,466 (May 22, 1987) (to be codified at 21

C.F.R. pt. 312).................................................. 8

New Drug, Antibiotic, and Biological Drug

Product Regulations; Accelerated Approval,

57 Fed. Reg. 58,942 (Dec. 11, 1992) (to be

codified at 21 C.F.R. pts. 314, 601) ................. 8

Legislation and Legislative History

Agriculture, Rural Development, Food and

Drug Administration, and Related Agencies

Appropriations for 2001: Part 2 of Hearings

Before the Subcomm. of the Comm. on

Appropriations, 106th Cong. (2000).............. 19

Child Interstate Abortion Notification Act:

Hearing on H.R. 2299 Before the Subcomm.

on the Const. of the H. Comm. on the

Judiciary, 112th Cong. (2012) ................ 23, 24

Staff of Subcomm. on Crim. Just., Drug Pol’y &

Hum. Res. of the H. Comm. on Gov’t

Reform, 109th Cong., The FDA and RU-486:

Lowering the Standard for Women’s Health

(Subcomm.

Print

2006)...................... 2, 6, 7, 11, 12, 15, 16, 25, 26

The Assault on Reproductive Rights in a PostDobbs America: Hearing before the S.

Comm. on the Jud., 118th Cong. (2023)

(written testimony of Monique Chireau

Wubbenhorst, Senior Rsch. Assoc., de

Nicola Ctr. for Ethics & Culture).................. 12

vi

Other Authorities

AAPLOG Statement: Clarification of Abortion

Restrictions, Am. Ass’n of Pro-Life

Obstetricians & Gynecologists (July 14,

2022), https://aaplog.org/aaplog-statementclarification-of-abortion-restrictions/ .............. 9

Ams. United for Life, Unsafe: America’s

Abortion Industry Endangers Women (2021

ed.) .................................................................. 12

Aviva L. Katz et al., Informed Consent in

Decision-Making in Pediatric Practice,

Pediatrics, Aug. 2016, at e1 .......................... 23

Christina A. Circucci et al., Mifepristone

Adverse Events Identified by Planned

Parenthood in 2009 and 2010 Compared to

Those in the FDA Adverse Event Reporting

System and Those Obtained Through the

Freedom of Information Act, Health Servs.

Rsch. & Managerial Epidemiology, Dec. 21,

2021, at 1 ....................................................... 17

Clarke D. Forsythe & Donna Harrison, State

Regulation of Chemical Abortion After

Dobbs, 16 Liberty U. L. Rev. 377 (2022)2, 25,

26

David C. Reardon & Christopher Craver,

Effects of Pregnancy Loss on Subsequent

Postpartum Mental Health: A Prospective

vii

Longitudinal Cohort Study, Int’l J. Env’t

Rsch. & Pub. Health, Feb. 23, 2021, at 1 ..... 20

F.

Gary Cunningham et al., Williams

Obstetrics (18th ed. 1989)................................ 7

Illness, Merriam-Webster’s Med. Dictionary

https://unabridged.merriamwebster.com/medical/illness (last visited

Nov. 6, 2023) .................................................... 6

James Studnicki et al., A Longitudinal Cohort

Study of Emergency Room Utilization

Following Mifepristone Chemical and

Surgical Abortions, 1999–2015, Health

Servs. Rsch. & Managerial Epidemiology,

Nov. 9, 2021, at 1 ........................................... 18

Kathryn R. Grauerholz et al., Uncovering

Prolonged Grief Reactions Subsequent to a

Reproductive Loss: Implications for the

Primary Care Provider, Frontiers Psych.,

May 12, 2021, at 1 ......................................... 20

Lars Noah, A Miscarriage in the Drug Approval

Process?: Mifepristone Embroils the FDA in

Abortion Politics, 36 Wake Forest L. Rev.

571 (2001) .................................................... 5, 9

Letter from Cindy Hyde-Smith, Senator, U.S.

Cong., et al., to Robert Califf, Comm’r, U.S.

Food & Drug Admin. (Jan. 26, 2023),

https://www.hydesmith.senate.gov/sites/def

ault/files/2023-

viii

01/012623%20Bicameral%20Letter%20to%

20FDA%20re%20Abortion%20Drugs.pdf ..... 14

Letter from James Lankford, Senator, U.S.

Cong., et al., to Merrick B. Garland, Att’y

Gen., U.S. Dep’t of Just. (Jan. 25, 2023),

https://www.lankford.senate.gov/imo/media

/doc/dojletterabortionmail.pdf ....................... 13

Louis Jacob et al., Association Between Induced

Abortion, Spontaneous Abortion, and

Infertility Respectively and the Risk of

Psychiatric Disorders in 57,770 Women

Followed in Gynecological Practices in

Germany, 251 J. Affective Disorders 107

(2019) ............................................................. 20

Maarit J. Mentula et al., Immediate Adverse

Events After Second Trimester Medical

Termination of Pregnancy: Results of a

Nationwide Registry Study, 26 Hum.

Reprod. 927 (2011)......................................... 13

Maarit

Niinimaki

et

al.,

Immediate

Complications After Medical Compared

with Surgical Termination of Pregnancy,

114 Obstetrics & Gynecology 795

(2009) ............................................................ 12

Mifepristone U.S. Post-Marketing Adverse

Events Summary Through 12/31/2022,

U.S. Food & Drug Admin. 1 (Dec. 31, 2022),

https://www.fda.gov/media/164331/downloa

d...................................................................... 17

ix

Nadia Akseer et al., Characteristics and Birth

Outcomes

of

Pregnant

Adolescents

Compared to Older Women: An Analysis of

Individual Level Data from 140,000

Mothers from 20 RCTs, eClinicalMed., Feb.

26, 2022, at 1 ................................................. 24

Nathalie Fleming et al., Adolescent Pregnancy

Guidelines, 37 J. Obstetrics & Gynaecology

Can. 740 (2015)........................................ 24, 25

Pregnancy,

Merriam-Webster’s

Med.

Dictionary,

https://unabridged.merriamwebster.com/medical/pregnancy

(last

visited Nov. 6, 2023) ........................................ 6

Pregnancy,

Taber’s

Med.

Dictionary,

https://www.tabers.com/tabersonline/view/

TabersDictionary/756370/all/pregnancy?q=pregna

ncy (last visited Nov. 6, 2023) ......................... 7

Pregnant, Merriam-Webster’s Med. Dictionary,

https://unabridged.merriamwebster.com/medical/pregnant (last visited

Nov. 6, 2023) .................................................... 7

Pro. Ethics Comm., Am. Ass’n of Pro-Life

Obstetricians & Gynecologists, Hippocratic

Objection to Killing Human Beings in

Medical Practice, Comm. Op. No. 1, at 8

(May 8, 2017) ................................................. 10

x

Questions and Answers on Mifepristone for

Medical Termination of Pregnancy Through

Ten Weeks Gestation, U.S. Food & Drug

Admin.

(Sept.

1,

2023),

https://www.fda.gov/drugs/postmarketdrug-safety-information-patients-andproviders/questions-and-answersmifepristone-medical-terminationpregnancy-through-ten-weeks-gestation ........ 2

Ralph

P.

Miech,

Pathophysiology

of

Mifepristone-Induced Septic Shock Due to

Clostridium

Sordellii,

39

Annals

Pharmacotherapy 1483 (2005) ...................... 26

Rsch. Comm., Am. Ass’n of Pro-Life

Obstetricians & Gynecologists, Concluding

Pregnancy Ethically, Prac. Guideline No. 10

(Aug. 2022) ..................................................... 10

Rsch. Comm., Am. Ass’n Pro-Life Obstetricians

& Gynecologists, Medication Abortion, Prac.

Guideline No. 8 (Feb. 2020) .................... 16, 17

1

STATEMENT OF INTEREST OF

AMICI CURIAE 1

Amici are 109 Members of the United States

Congress, 17 Senators and 92 Members of the House

of Representatives, representing 32 States. A

complete list of Amici is found in the Appendix to this

brief. Congress authorizes power to the U.S. Food and

Drug Administration (“FDA”) to approve drugs and

regulate their safety and efficacy. 21 U.S.C. § 393.

Congress directs administrative agencies to act

within the scope of their authorized powers. 5 U.S.C.

§ 706; see Skinner v. Mid-America Pipeline Co., 490

U.S. 212, 218 (1989) (citing Mistretta v. United States,

488 U.S. 361, 379 (1989)) (There is a “longstanding

principle that so long as Congress provides an

administrative agency with standards guiding its

actions such that a court could ‘ascertain whether the

will of Congress has been obeyed,’ no delegation of

legislative authority trenching on the principle of

separation of powers has occurred.”).

As pro-life elected representatives, Amici are

committed to protecting women and girls from the

harms of the abortion industry. By approving and

then deregulating chemical abortion drugs, the FDA

contravened its own regulations, and failed to follow

Congress’ statutorily prescribed drug approval

1 No party’s counsel authored any part of this brief. No person

other than Amici Curiae and their counsel contributed any

money intended to fund the preparation or submission of this

brief. Cross-Petitioners and Cross-Respondents received timely

notice to the filing of this brief.

2

process to the detriment of patient welfare. The FDA’s

lawless actions ultimately have endangered women

and girls seeking chemical abortions.

SUMMARY OF ARGUMENT

The FDA approved mifepristone, an abortioninducing drug, in 2000. The “chemical abortion pill”

(also known as a “medical abortion”) is a regimen of

two

drugs,

mifepristone

and

misoprostol. 2

“[M]ifepristone (brand name, Mifeprex), is an

antiprogesterone, which starves the pregnancy. The

second, misoprostol (brand name, Cytotec), a

prostaglandin, causes the uterus to contract, which

mechanically expels the fetus and placenta.” Clarke

D. Forsythe & Donna Harrison, State Regulation of

Chemical Abortion After Dobbs, 16 Liberty U. L. Rev.

377, 377 (2022).

There were “approval irregularities” in the FDA’s

consideration of mifepristone. Staff of Subcomm. on

Crim. Just., Drug Pol’y & Hum. Res. of the H. Comm.

on Gov’t Reform, 109th Cong., The FDA and RU-486:

Lowering the Standard for Women’s Health 15

(Subcomm. Print 2006). Relying improperly upon its

Subpart H authority, the FDA misclassified

pregnancy as a “life-threatening illness.” See 21

C.F.R. § 314.500. Pregnancy is not an illness, let alone

Questions and Answers on Mifepristone for Medical

Termination of Pregnancy Through Ten Weeks Gestation, U.S.

Food

&

Drug

Admin.

(Sept.

1,

2023),

https://www.fda.gov/drugs/postmarket-drug-safety-informationpatients-and-providers/questions-and-answers-mifepristonemedical-termination-pregnancy-through-ten-weeks-gestation.

2

3

a life-threatening one. Likewise, chemical abortions

do not provide a “meaningful therapeutic benefit”

over surgical abortions, especially considering

chemical abortions pose greater health risks than

surgical abortions. In approving mifepristone, the

FDA also acted arbitrarily and capriciously in

violation of the Administrative Procedure Act

(“APA”). See 5 U.S.C. § 706(2)(A). The FDA subverted

its obligations under the Food, Drug, and Cosmetic

Act (“FDCA”) to ensure new drugs are safe and

effective, see 21 U.S.C. § 355, and failed to assess the

safety and effectiveness of the drugs for pediatric use,

as well as the proper dosing and administration for

these young patients under the Pediatric Research

Equity Act (“PREA”). See 21 U.S.C. § 355c.

The Fifth Circuit held it was untimely for the

Cross-Petitioners to challenge the FDA’s 2000

approval of mifepristone and did not have standing to

challenge the 2019 generic drug approval, but

correctly upheld a stay of the FDA’s 2016 and 2021

actions that deregulated mifepristone. All. for

Hippocratic Med. v. U.S. Food & Drug Admin., 78

F.4th 210, 222–223 (5th Cir. 2023). Amici support the

Fifth Circuit’s reinstatement of common-sense

patient safeguards, which include in-person

dispensing of mifepristone as well as an in-person

follow-up examination to ensure a woman has not

suffered complications or retained fetal tissue.

Accordingly, Amici support Cross-Petitioners’

opposition to the FDA and Danco’s petitions for a writ

of certiorari, which have asked this Court to

4

reconsider patient safeguards that protect women

and girls seeking chemical abortion drugs.

Amici agree with Cross-Petitioners that they have

a timely challenge to the FDA’s unlawful approval of

mifepristone in this case. See Conditional Cross-Pet.

Writ Cert. 16–23. Amici write separately to contribute

a federal policy perspective as to why the FDA, in

approving mifepristone, (I) went beyond the scope of

its Subpart H authority, and (II) acted in violation of

the APA, FDCA, and PREA. Since the FDA’s lawless

approval of mifepristone subverts patient safeguards

and contravenes federal laws, Amici urge the Court to

grant Alliance for Hippocratic Medicine’s conditional

cross-petition if the Court grants the Food & Drug

Administration and/or Danco’s petitions for a writ of

certiorari.

ARGUMENT

I. The FDA Exceeded its Subpart H Authority by

Approving Mifepristone.

The FDA may apply Subpart H’s accelerated

approval process “to certain new drug products that

have been studied for their safety and effectiveness in

treating serious or life-threatening illnesses and that

provide meaningful therapeutic benefit to patients

over existing treatments.” 21 C.F.R. § 314.500. In

certain circumstances for drugs approved under

Subpart H, the “FDA will require such postmarketing

restrictions as are needed to assure safe use of the

drug product.” 21 C.F.R. § 314.520. Congress codified

5

Subpart H’s post-marketing restrictions into the

FDCA in 2007 as Risk Evaluation and Mitigation

Strategies (“REMS”). 21 U.S.C. § 355-1(a)(1)–(2).

The FDA used Subpart H to accelerate the

approval process for the chemical abortion drug. As

Professor Lars Noah detailed:

The Clinton administration went to great

lengths to bring mifepristone into the United

States. From pressuring the hesitant

manufacturer to apply for approval, and

utilizing a specialized review procedure

normally reserved for life-saving drugs, to

imposing unusual restrictions on distribution,

and promising to keep the identity of the

manufacturer a secret, the FDA’s approval

process deviated from the norm in several

respects.

Lars Noah, A Miscarriage in the Drug Approval

Process?: Mifepristone Embroils the FDA in Abortion

Politics, 36 Wake Forest L. Rev. 571, 576 (2001). The

FDA indicated in its approval letter to the Population

Council in 2000 that the “FDA has determined that

the termination of an unwanted pregnancy is a

serious condition within the scope of Subpart H. The

meaningful therapeutic benefit over existing surgical

abortion is the avoidance of a surgical procedure.” All.

for Hippocratic Med., 78 F.4th at 224. Yet, the FDA

exceeded the scope of Subpart H’s authority with this

reasoning. Amici highlight that (A) pregnancy is not

an “illness,” nor “life-threatening” in normal

6

circumstances; and (B) chemical abortions do not

provide meaningful therapeutic benefit over surgical

abortions.

A. The FDA Misclassified Pregnancy as a “LifeThreatening Illness.”

Subpart H applies to drugs the FDA has “studied

for their safety and effectiveness in treating serious

or life-threatening illnesses.” 21 C.F.R. § 314.500. Yet,

in efforts to approve mifepristone, the FDA rewrote

this language, indicating the “termination of an

unwanted pregnancy is a serious condition within the

scope of Subpart H.” All. for Hippocratic Med., 78

F.4th at 224 (emphasis added). Even with these

“[l]inguistic

gymnastics . . . pregnancy

or

the

termination of pregnancy is not a ‘serious or lifethreatening illness,’ and therefore does not fall within

the defined reach of subpart H; the term ‘serious

condition’ is not found in the Subpart H rule.” Staff of

Subcomm. on Crim. Just., supra, at 20.

Fundamentally, “pregnancy itself is not an

illness.” Id. An illness is “an unhealthy condition of

body or mind.” Illness, Merriam-Webster’s Med.

Dictionary

https://unabridged.merriamwebster.com/medical/illness (last visited Nov. 6,

2023). Pregnancy is “the condition of being

pregnant,” 3 which, in turn, means “[a body] contain[s]

a developing embryo, fetus, or unborn offspring.”

Pregnancy,

Merriam-Webster’s

Med.

Dictionary,

https://unabridged.merriam-webster.com/medical/pregnancy

(last visited Nov. 6, 2023).

3

7

Pregnant, Merriam-Webster’s Med. Dictionary,

https://unabridged.merriamwebster.com/medical/pregnant (last visited Nov. 6,

2023); see also Pregnancy, Taber’s Med. Dictionary,

https://www.tabers.com/tabersonline/view/TabersDictionary/756370/all/pregnancy?q=pregnancy (last

visited Nov. 6, 2023) (defining pregnancy as “[t]he

condition of having a developing embryo or fetus in

the body after successful conception”).“Pregnancy is

not a bad or unhealthy condition of the body—it’s a

natural consequence of a healthy and functioning

reproductive system.” All. for Hippocratic Med., 78

F.4th at 263 (Ho, J., concurring in part and dissenting

in part). Indeed, as the field of obstetrics recognizes,

“ordinarily pregnancy is a normal physiological

state . . . .” F. Gary Cunningham et al., Williams

Obstetrics 12 (18th ed. 1989).

Pregnancy is not an illness, let alone a “lifethreatening illness,” which is what Subpart H

requires. Although “[t]here are situations in which

serious or life-threatening complications may

arise, . . . these are atypical events.” Staff of

Subcomm. on Crim. Just., supra, at 20. The

“pregnancy can sometimes result in illness. But that

does not make the pregnancy itself an illness.” All. for

Hippocratic Med., 78 F.4th at 263 (Ho., J., concurring

in part and dissenting in part) (emphasis in original)

(citation omitted).

When the FDA initially promulgated Subpart H, it

indicated the agency “discussed the meaning of the

terms ‘serious’ and ‘life-threatening’ in its final rules

8

on

‘treatment

IND’s

[investigational

new

drugs]’ . . . and ‘subpart E’ procedures . . . . The use of

these terms in this rule is the same as FDA defined

and used the terms in those rulemakings.” New Drug,

Antibiotic, and Biological Drug Product Regulations;

Accelerated Approval, 57 Fed. Reg. 58,942, 58,945

(Dec. 11, 1992) (to be codified at 21 C.F.R. pts. 314,

601). In turn, the treatment INDs rule “defined an

immediately life-threatening disease in the

regulation as being a stage of a disease in which there

is a reasonable likelihood that death will occur within

a matter of months or in which premature death is

likely without early treatment.” Investigational New

Drug, Antibiotic, and Biological Drug Product

Regulations; Treatment Use and Sale, 52 Fed. Reg.

19,466, 19,467 (May 22, 1987) (to be codified at 21

C.F.R. pt. 312). The INDs rule listed examples, such

as “[a]dvanced cases of AIDs . . . [a]dvanced

congestive heart failure . . . [and m]ost advanced

metastatic refractory cancers.” Id. For its part, the

Subpart E rule indicated:

A “life-threatening” disease is defined as one in

which the likelihood of death is high unless the

course of the disease is interrupted (e.g.,

progression from asymptomatic HIV infection

to symptomatic HIV infection, or further

progression to a later stage of AIDS; metastatic

cancer; amyotrophic lateral sclerosis). This use

of the term “life-threatening” plainly includes

any disease whose progression is likely to lead

to death, especially in a short period of time

(e.g., 6 months to 1 year).

9

Investigational New Drug, Antibiotic, and Biological

Drug Product Regulations; Procedures for Drugs

Intended to Treat Life-Threatening and Severely

Debilitating Illnesses, 53 Fed. Reg. 41,516, 41,518–

41,519 (Oct. 21, 1988) (to be codified at 21 C.F.R. pts.

312, 314). Pregnancy, which is a normal and healthy

physiological condition, cannot plausibly be compared

to such life-threatening diseases.

Drugs used to treat these life-threatening illnesses

contrast with mifepristone, which is intended for

elective abortions. In the words of “William Hubbard,

who served as the FDA’s Associate Commissioner for

Policy

throughout

the

Clinton

administration, . . . [who] remark[ed] shortly before

joining the agency: ‘RU-486 is intended for

convenien[t] use by healthy young women rather than

as a therapy for an incapacitating or life-threatening

disease.’” Noah, supra, at 582. This means the FDA

approved mifepristone for elective abortion. An

“elective abortion is defined as those drugs or

procedures used with the primary intent to end the

life of the human being in the womb.” AAPLOG

Statement: Clarification of Abortion Restrictions, Am.

Ass’n of Pro-Life Obstetricians & Gynecologists (July

14,

2022),

https://aaplog.org/aaplog-statementclarification-of-abortion-restrictions/. It is not

medically required. “‘Elective’ . . . refers to inductions

done in the absence of some condition of the mother

or the fetus which requires separation of the two to

protect the life of one or the other (or both).” Rsch.

Comm., Am. Ass’n of Pro-Life Obstetricians &

Gynecologists, Concluding Pregnancy Ethically, Prac.

10

Guideline No. 10, at 5 (Aug. 2022). This means that

“by definition, there is no medical indication for

elective induced abortion, since it cures no medical

disease. . . . Pregnancy is not a disease, and the

killing of human beings in utero is not medical care.”

Pro. Ethics Comm., Am. Ass’n of Pro-Life

Obstetricians & Gynecologists, Hippocratic Objection

to Killing Human Beings in Medical Practice, Comm.

Op. No. 1, at 8 (May 8, 2017) (emphasis omitted). In

other words, medical professionals perform elective

induced abortions for non-medical reasons, which

does not meet Subpart H’s requirement that the drug

treat “life-threatening illnesses.” Accordingly, the

FDA exceeded its Subpart H authority in approving

mifepristone.

B. Chemical Abortions Do Not Provide a

“Meaningful Therapeutic Benefit” Over

Surgical Abortions.

For the FDA to approve a drug under Subpart H,

the drug must “provide meaningful therapeutic

benefit to patients over existing treatments.” 21

C.F.R. § 314.500. Here, the FDA contends “[t]he

meaningful therapeutic benefit over existing surgical

abortion is the avoidance of a surgical procedure.” All.

for Hippocratic Med., 78 F.4th at 224. “Clearly, this

mistakes a definition for a syllogism” by saying a

chemical abortion is better than a surgical abortion

because, by definition, it does not involve surgery.

Dobbs v. Jackson Women’s Health Org., 142 S. Ct.

2228, 2268 (2022) (cleaned up). “[E]ven though some

women may prefer [mifepristone] abortions over

11

surgical abortions, that fact does not establish the

existence of a therapeutic benefit in and of itself.”

Staff of Subcomm. on Crim. Just., supra, at 22.

Regardless of this logical fallacy, the FDA failed to

demonstrate—contrary to its Subpart H obligations—

that chemical abortion provides a meaningful

therapeutic benefit over existing treatments.

As Cross-Petitioners highlight, “[m]ifepristone is

not ‘therapeutic.’” Conditional Cross-Pet. Writ Cert.

27. The U.S. House Committee on Government

Reform (now known as the Committee on Oversight

and Accountability)’s Subcommittee on Criminal

Justice, Drug Policy and Human Resources

recognized, “[mifepristone] was not approved for a

medical indication intended for only the treatment of

patients who were intolerant of surgical abortion. It

was approved to treat the general population of

women seeking first-trimester abortions.” Staff of

Subcomm. on Crim. Just., supra, at 22.

The FDA likewise failed to satisfy its Subpart H

obligation because “it appears that no concurrentlycontrolled trials comparing medical and surgical

abortion were required by FDA, because the Agency

already knew that medical abortion—i.e., abortion by

[mifepristone]—is unambiguously inferior to surgical

abortion with respect to safety and effectiveness.” Id.

Comparatively, chemical abortions have greater risks

12

than surgical abortions. 4 In a study of 42,619 Finnish

women receiving chemical abortions up to nine weeks

gestational age, for example, the overall adverse

events were almost fourfold higher in chemical

(20.0%) versus surgical abortions (5.6%). Maarit

Niinimaki et al., Immediate Complications After

Medical Compared with Surgical Termination of

Pregnancy, 114 Obstetrics & Gynecology 795, 795

(2009). Women hemorrhaged more commonly after

chemical abortion (15.6% compared with 2.1%). Id.

They also had incomplete abortions more often in

chemical abortions (6.7% versus 1.6%). Id. The rate of

surgical (re)evacuation was higher after chemical

abortions (5.9%) than surgical abortions (1.8%). Id.

Likewise, “surgery is an integral part of the

[mifepristone] abortion process, because a substantial

proportion of women require [dilation and curettage

abortions] after beginning the mifepristone regimen.

Therefore, women who have [mifepristone] abortions

must be able to tolerate the surgical procedure.” Staff

of Subcomm. on Crim. Just., supra, at 22. A study

examining first and second trimester chemical

abortions of 18,248 Finnish women highlighted

4 To be clear, whether chemical or surgical, abortion poses grave

safety concerns. “Abortion not only poses risks to the mother, it

is always lethal to an unborn child.” The Assault on Reproductive

Rights in a Post-Dobbs America: Hearing before the S. Comm. on

the Jud., 118th Cong. 2 (2023) (written testimony of Monique

Chireau Wubbenhorst, Senior Rsch. Assoc., de Nicola Ctr. for

Ethics & Culture). The abortion industry’s pervasive failure to

adhere to health and safety standards only exacerbates these

risks to women’s health. See Ams. United for Life, Unsafe:

America’s Abortion Industry Endangers Women (2021 ed.).

13

medical professionals may use surgery to complete a

failed chemical abortion. Maarit J. Mentula et al.,

Immediate Adverse Events After Second Trimester

Medical Termination of Pregnancy: Results of a

Nationwide Registry Study, 26 Hum. Reprod. 927, 927

(2011). Women undergoing first and second trimester

chemical abortions needed surgical evacuation in

9.9% of cases. Id. at 929. Women specifically

undergoing second trimester chemical abortions

needed surgical evacuation in 39% of cases. Id. at 931.

In sum, chemical abortions do not provide

“meaningful therapeutic benefits” to women and girls

over surgical abortions, and in fact pose higher health

and safety risks. The FDA improperly used its

Subpart H authority to approve chemical abortion

drugs.

II. The FDA’s Approval of Mifepristone Subverted

Patient Health and Safety Safeguards Within

Federal Laws.

Amici agree with Cross-Petitioners that the FDA’s

actions have contravened the APA and FDCA.

Conditional Cross-Pet. Writ Cert. 28–31. 5 Amici add

5 Amici also note the FDA’s 2021 actions, which eliminated inperson dispensing of chemical abortion drugs, contradicted the

“plain text and clear meaning of the [Comstock Act].” Letter from

James Lankford, Senator, U.S. Cong., et al., to Merrick B.

Garland, Att’y Gen., U.S. Dep’t of Just. 1 (Jan. 25, 2023),

https://www.lankford.senate.gov/imo/media/doc/dojletterabortio

nmail.pdf. Members of Congress recently expressed their

opposition to the FDA’s 2021 actions, recognizing the dangers

14

that the FDA’s actions also have subverted PREA,

discussed below. “‘[A]n agency literally has no power

to act . . . unless and until Congress confers power

upon it.’ When an agency exercises power beyond the

bounds of its authority, it acts unlawfully.” Dep’t of

Homeland Sec. v. Regents of the Univ. of Cal., 140 S.

Ct. 1891, 1921 (2020) (Thomas, J., concurring in the

judgment in part and dissenting in part) (alterations

in original) (citations omitted). The FDA must adhere

to the APA’s “arbitrary and capricious” standard,

which means “the agency must examine the relevant

data and articulate a satisfactory explanation for its

action including a ‘rational connection between the

facts found and the choice made.’” Motor Vehicle Mfrs.

Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (citing Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

The FDA acted arbitrarily and capriciously in

approving mifepristone. As the U.S. House

Committee on Government Reform’s Subcommittee

on Criminal Justice, Drug Policy and Human

Resources recognized:

The integrity of the FDA in the approval and

monitoring of RU-486 has been substandard

and necessitates the withdrawal of this

mail-order chemical abortions pose to women and girls. Letter

from Cindy Hyde-Smith, Senator, U.S. Cong., et al., to Robert

Califf, Comm’r, U.S. Food & Drug Admin. (Jan. 26, 2023),

https://www.hydesmith.senate.gov/sites/default/files/202301/012623%20Bicameral%20Letter%20to%20FDA%20re%20Ab

ortion%20Drugs.pdf.

15

dangerous and fatal product before more

women suffer the known and anticipated

consequences or fatalities. RU-486 is a

hazardous drug for women, its unusual

approval demonstrates a lower standard of

care for women, and its withdrawal from the

market is justified and necessary to protect the

public’s health.

Staff of Subcomm. on Crim. Just., supra, at 40. In

approving mifepristone, the FDA did not act “in

accordance” with patient safeguards within the FDCA

and PREA, and approved mifepristone in excess of its

statutory authority. See 5 U.S.C. § 706(2)(A).

A. The FDA’s Failure to Adhere to the FDCA’s

Drug Approval

Process Has Created

Significant Health and Safety Risks to Women

and Girls.

Congress places safeguards within the FDCA to

ensure new drugs are safe and efficacious for patients.

21 U.S.C. § 355. As Cross-Petitioners note, the FDA

failed to include critical patient safeguards in its

approval of chemical abortion drugs, even though the

FDA approved mifepristone by relying upon studies

that used those safeguards. Conditional Cross-Pet.

Writ Cert. 30. Namely, the clinical trials required

medical professionals to perform “an ultrasound to

confirm gestational age and to exclude an ectopic

pregnancy,” as well as monitor the woman for a period

of three to five hours after she took misoprostol. Id.

Removing these conditions of use, even after relying

16

upon them in the approval of mifepristone, is contrary

to the FDCA’s requirements. See 21 U.S.C. § 355(d).

By subverting these patient safeguards, the

ultimate victims of the FDA’s lawless actions have

been women and girls seeking these drugs.

Unfortunately, “the medical community knew what

American women would soon learn by experience,”

that chemical abortion drugs pose significant risks.

Staff of Subcomm. on Crim. Just., supra, at 13.

“[M]ifepristone interferes with the body’s immune

response . . . is more inconvenient than surgical

abortion . . . is more painful . . . is less effective . . . is

associated with more adverse events . . . [and] causes

more frequent and more severe hemorrhage than its

surgical counterpart.” Id. at 13–14.

Fundamentally, chemical abortion drugs pose

serious health and safety risks to women and girls.

There is an “assumption that [a chemical abortion] is

more natural, private and safer than a surgical

procedure, but physicians and patients alike may be

unaware that it takes much longer, involves far more

bleeding and pain, and complications occur four times

more frequently from medical as compared to surgical

abortions.” Rsch. Comm., Am. Ass’n Pro-Life

Obstetricians & Gynecologists, Medication Abortion,

Prac. Guideline No. 8, at 3 (Feb. 2020). After taking

chemical abortion drugs, [t]he average woman bleeds

for 9–16 days and eight percent will bleed longer than

a month.” Id. Unfortunately, “[t]he side effects of

cramping, vaginal bleeding, hemorrhage, nausea,

weakness, fever/chills, vomiting, headache, diarrhea,

17

and dizziness occur in almost all women.” Id. As the

gestational age increases, so too will the complication

rates for women taking chemical abortion drugs. Id.

Since 2016, the FDA has only required adverse

events reporting for deaths resulting from chemical

abortion drugs; reporting is otherwise voluntary. 6

Even so, the FDA has received FAERS Mifeprex

reports through December 31, 2022 documenting 32

deaths (regardless of causality), 4,218 adverse events,

1,049 hospitalizations (excluding deaths), 604 blood

loss incidents requiring transfusions, 418 infections,

and 75 severe infections. Mifepristone U.S. PostMarketing Adverse Events Summary Through

12/31/2022, U.S. Food & Drug Admin. 1, 1–2 (Dec.

31,

2022),

https://www.fda.gov/media/164331/download.

A 2021 peer-reviewed study showed alarming

results: chemical-abortion related emergency room

visits (i.e., visits medically coded as chemical abortion

complications) per 1,000 abortions “went from 8.5 to

51.7, an increase of 507%” over thirteen years. James

Studnicki et al., A Longitudinal Cohort Study of

Emergency Room Utilization Following Mifepristone

As one study concludes, “FAERS [the FDA Adverse Event

Reporting System] is inadequate to evaluate the safety of

mifepristone” due to reporting discrepancies, and the fact that

the FDA no longer mandates reporting of non-lethal adverse

events. Christina A. Circucci et al., Mifepristone Adverse Events

Identified by Planned Parenthood in 2009 and 2010 Compared

to Those in the FDA Adverse Event Reporting System and Those

Obtained Through the Freedom of Information Act, Health

Servs. Rsch. & Managerial Epidemiology, Dec. 21, 2021, at 1, 4.

6

18

Chemical and Surgical Abortions, 1999–2015, Health

Servs. Rsch. & Managerial Epidemiology, Nov. 9,

2021, at 1, 5. By 2015, the rate of emergency room

visits within 30 days for any cause (i.e., any

emergency room visit regardless of how it was

medically coded) per 1000 chemical abortions was

354.8. Id. at 4–5. This means 35.48% of women ended

up in the emergency room within thirty days of taking

chemical abortion drugs. Id. The study found that

“[emergency room] visits following mifepristone

abortion grew from 3.6% of all postabortion visits in

2002 to 33.9% of all postabortion visits in 2015.” Id. at

8. During the same period, chemical abortions

“increased from 4.4% of total abortions in 2002 to

34.1% in 2015.” Id.

The actual number of adverse events is likely

much higher due to emergency room miscoding. As

compared to miscoding of surgical abortion-related

treatment, 2015 data showed emergency rooms were

four times as likely to miscode chemical abortionrelated treatment as miscarriage-related treatment.

Id. at 3. Between 2013 and 2015, emergency rooms

miscoded up to 60.9% of chemical abortion-related

visits as miscarriage-related visits. Id. at 4. This

means that U.S. data are severely incomplete, and

studies have understated the risks chemical abortion

drugs pose to women and girls, which include

hemorrhaging and infection due to retained

pregnancy tissue.

One concerning aspect of the initial drug approval

is that the FDA “entirely failed to consider an

19

important aspect of the problem,” State Farm, 463

U.S. at 43, namely, the evidence of the drugs’

psychological or long-term physical effects. As FDA

Commissioner Jane Henney testified before Congress

in February 2000 regarding the FDA’s review of

chemical abortion drugs:

The primary clinical trials conducted by the

sponsor to support the safety and efficacy of

mifepristone—RU-486—were discussed before

the Reproductive Health Advisory Committee

in July 1996. These clinical studies did not

include an evaluation of the psychological

effects of the drug in women or an evaluation of

the long-term medical consequences of the drug

in women. FDA is unaware of any published

studies on the psychological effects or the longterm medical consequences of mifepristone in

women. 7

Abortion poses mental health risks for women and

girls. “Pregnancy loss (natural or induced) is

associated with an increased risk of mental health

problems.” David C. Reardon & Christopher Craver,

Effects of Pregnancy Loss on Subsequent Postpartum

Mental Health: A Prospective Longitudinal Cohort

Study, Int’l J. Env’t Rsch. & Pub. Health, Feb. 23,

Agriculture, Rural Development, Food and Drug

Administration, and Related Agencies Appropriations for 2001:

Part 2 of Hearings Before the Subcomm. of the Comm. on

Appropriations, 106th Cong. (2000) (emphasis added). The

testimony

is

available

at

https://www.govinfo.gov/content/pkg/CHRG106hhrg63888/html/CHRG-106hhrg63888.htm.

7

20

2021, at 1, 1. “Research on mental health subsequent

to early pregnancy loss as a result of elective induced

abortions has historically been polarized, but recent

research indicates an increased correlation to the

genesis or exacerbation of substance abuse and

affective disorders including suicidal ideation.”

Kathryn R. Grauerholz et al., Uncovering Prolonged

Grief Reactions Subsequent to a Reproductive Loss:

Implications for the Primary Care Provider, Frontiers

Psych., May 12, 2021, at 1, 2. Scholarship shows “that

the emotional reaction or grief experience related to

miscarriage and abortion can be prolonged, afflict

mental health, and/or impact intimate or parental

relationships.” Id. Similarly, “[s]everal recent

international studies have demonstrated that

repetitive early pregnancy loss, including both

miscarriage and induced abortions, is associated with

increased levels of distress, depression, anxiety, and

reduced quality of life scores in social and mental

health categories.” Id.; see, e.g., Louis Jacob et al.,

Association Between Induced Abortion, Spontaneous

Abortion, and Infertility Respectively and the Risk of

Psychiatric Disorders in 57,770 Women Followed in

Gynecological Practices in Germany, 251 J. Affective

Disorders 107, 111 (2019) (finding “a positive

relationship between induced abortion . . . and

psychiatric disorders in gynecological practices in

Germany”).

In sum, the FDA failed to follow FDCA patient

safety requirements, which is to the detriment of the

health and safety of women and girls seeking

chemical abortion drugs.

21

B. The FDA Endangers Pregnant Adolescents

Seeking Chemical Abortion Drugs by

Subverting the Pediatric Study Requirement.

Under PREA, assessments of new drugs must

include studies showing the safety and effectiveness

of the drug for pediatric use, as well as the proper

dosing and administration for adolescent patients. 21

U.S.C. § 355c(a)(2)(A). 8 The FDA can waive the

pediatric study “[i]f the course of the disease and the

effects of the drug are sufficiently similar in adults

and pediatric patients . . . .” Id. at § 355c(a)(2)(B)(i).

Again,

Congress did not set agencies free to disregard

legislative direction in the statutory scheme

that the agency administers. Congress may

limit an agency’s exercise of enforcement power

if it wishes, either by setting substantive

priorities, or by otherwise circumscribing an

agency’s power to discriminate among issues or

cases it will pursue.

Heckler v. Chaney, 470 U.S. 821, 833 (1985).

Accordingly, the FDA must adhere to PREA before

approving or deregulating drugs for adolescent

patients because they face unique challenges when

experiencing pregnancy.

For background on the FDA’s pediatric rule and Congress’

codification of the regulation into PREA, see All. for Hippocratic

Med. v. U.S. Food & Drug Admin., No. 2:22-CV-223-Z, slip op. at

51 n.49 (N.D. Tex. Apr. 7, 2023); Compl. ¶¶ 89௅96, Dist. Ct. ECF

No. 1 at 26–28.

8

22

The FDA subverted PREA and exceeded the scope

of its authorized power. In the initial drug approval of

chemical abortion drugs in 2000, the FDA waived the

pediatric study, incorrectly stating “there is no

biological reason to expect menstruating females

under age 18 to have a different physiological outcome

with the regimen.” Compl. Ex. 24, Dist. Ct. ECF No.

1-25 at 8; All. for Hippocratic Med. v. U.S. Food &

Drug Admin., No. 2:22-CV-223-Z, slip op. at 51 (N.D.

Tex. Apr. 7, 2023) (during the 2000 approval, “[n]or

was the drug tested for under-18 girls undergoing

reproductive development”). 9 This contention “is so

implausible that it could not be ascribed to a

difference in view or the product of agency expertise,”

State Farm, 463 U.S. at 43, and endangers girls

seeking chemical abortion drugs. 10

Adolescent patients seeking chemical abortions

face unique challenges that place them in dissimilar

conditions to adult women. Thus, it is imperative that

the FDA fulfills its statutory duty to ensure the drugs,

dosages, and administration are safe and effective for

girls seeking chemical abortion drugs.

Adolescents do not have fully developed decisionmaking capabilities. As the Supreme Court

acknowledged in H.L. v. Matheson, “[t]he medical,

9 References to “Dist. Ct. ECF” are to the District Court docket,

No. 2:22-cv-223-Z (N.D. Tex.). All ECF page numbers reference

the blue ECF headers.

10 The FDA likewise failed to meet its PREA obligations during

the 2016 Major REMS changes. See Compl. ¶¶ 206–216, Dist. Ct.

ECF No. 1 at 57–60.

23

emotional, and psychological consequences of an

abortion are serious and can be lasting; this is

particularly so when the patient is immature.” 450

U.S. 398, 411 (1981) overruled on other grounds by

Dobbs, 142 S. Ct. 2228. Generally, “[a]ppropriate

decisional capacity and legal empowerment are the

determinants of decision-making authority in

medicine.” Aviva L. Katz et al., Informed Consent in

Decision-Making in Pediatric Practice, Pediatrics,

Aug. 2016, at e1, e2. Nevertheless, “[a] reliance on

individual liberties and autonomy in the pediatric

patient is not realistic or legally accepted, so parents

or other surrogates provide ‘informed permission’ for

diagnosis and treatment, with the assent of the child

as developmentally appropriate.” Id. Consequently,

parental guidance is instrumental for an adolescent

patient’s informed consent. 11 Parental involvement

helps an adolescent patient select a competent

healthcare professional who prioritizes her health.

Child Interstate Abortion Notification Act: Hearing on

H.R. 2299 Before the Subcomm. on the Const. of the H.

Comm. on the Judiciary, 112th Cong. 19 (2012)

(statement of Teresa Stanton Collett, Professor of

Law, University of St. Thomas School of Law).

Parents may “provide additional medical history and

The FDA’s approval and deregulation of chemical abortion

drugs also blatantly ignores parents’ constitutional rights to the

care and upbringing of their minor pregnant daughters. See

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and

culture of Western civilization reflect a strong tradition of

parental concern for the nurture and upbringing of their

children. This primary role of the parents in the upbringing of

their children is now established beyond debate as an enduring

American tradition.”).

11

24

information [regarding their minor daughter] to

abortion providers prior to [the] performance of the

abortion,” safeguard that an adolescent girl

understands the medical risks of the procedure, and

give her advice during the informed consent process.

Id. at 26–27. Moreover, parental involvement

“ensures that the parents have the ability to monitor

for post-abortion complications.” Id. at 19.

Adolescents have high risk pregnancies and often

delay prenatal care. “Adolescence is a critical period

marking phenomenal changes including rapid

physical, psychosocial, sexual and cognitive

maturation, and nutrient needs of adolescents are

higher than at any other stage in the lifecycle.” Nadia

Akseer et al., Characteristics and Birth Outcomes of

Pregnant Adolescents Compared to Older Women: An

Analysis of Individual Level Data from 140,000

Mothers from 20 RCTs, eClinicalMed., Feb. 26, 2022,

at 1, 3. During pregnancy, “adolescent girls are a

particularly vulnerable group since the demands of

regular growth and development are augmented by

the heightened nutritional requirements of

supporting a fetus.” Id. Due to adolescent patients’

developing bodies, they have a “biological

predisposition for high-risk pregnancies.” Id. at 12.

The high-risk nature of adolescent pregnancy is

compounded by the fact that pregnant adolescent

patients often delay care. Nathalie Fleming et al.,

Adolescent Pregnancy Guidelines, 37 J. Obstetrics &

Gynaecology Can. 740, 743 (2015). There are multiple

reasons adolescent patients delay care, including:

25

lack of knowledge about the importance of

prenatal care and lack of understanding of the

consequences of its absence; history as a victim

of violence, desire to hide pregnancy, fear of

potential

apprehension

of

the

baby,

contemplation of abortion services; concerns

about lack of privacy or judgemental attitudes

from health care providers or adults; and

financial barriers.

Id. Unfortunately, “[l]ack of, or delayed, adolescent

prenatal care is associated with adverse maternal,

obstetrical, and neonatal outcomes.” Id.

The FDA approved and deregulated chemical

abortion drugs without knowing the drugs’ impact on

adolescent development, especially their effects on

girls’ immune systems. See Staff of Subcomm. on

Crim. Just., supra, at 12 (recognizing medical

concerns about mifepristone’s immune system

inhibition); Compl. ¶ 216, Dist. Ct. ECF No. 1 at 60

(During the 2016 Major REMS changes, “[t]he FDA

did not require any studies on the long-term effects of

chemical abortion drugs in pediatric populations with

developing reproductive systems.”). Mifepristone, an

anti-progestin, interferes with the immune system

“by binding with a woman’s progesterone receptors on

the nuclear membranes of cells in the uterus, ovary,

brain, breast, and immune system.” Forsythe, supra,

at 388. Since mifepristone has blocked uterine

progesterone receptors, “the mother’s cells in the

placenta stop functioning, which eventually leads to

the death of the embryo through, in essence,

26

starvation,” and at a certain point, the mother loses

her unborn child. Id. at 388–389. However,

mifepristone has another effect upon the body: “the

blockade of glucocorticoid receptors also induces an

unexpected immune blockade, suppressing the

immune system, which can result in increased

susceptibility to overwhelming infection” throughout

the body. Id. at 389; see also Ralph P. Miech,

Pathophysiology of Mifepristone-Induced Septic

Shock Due to Clostridium Sordellii, 39 Annals

Pharmacotherapy 1483, 1483 (2005) (“[I]t appears

that the mechanisms of mifepristone action favor the

development of infection that leads to septic shock

and intensifies the actions of multiple inflammatory

cytokines, resulting in fulminant, lethal septic

shock.”).

Thus, adolescent patients seeking chemical

abortion drugs face unique challenges compared to

their adult counterparts. The FDA had no authority

to waive the pediatric study in the initial 2000 drug

approval, and did not ensure the chemical abortion

drugs, dosages, and administration are safe and

effective for adolescent patients. See 21 U.S.C. § 355c.

Accordingly, the FDA acted outside the scope of its

authorized power under PREA and risked the health

and safety of adolescent patients.

In sum, “the political motivations for bringing

[mifepristone] to the U.S. market overwhelmed

considerations of women’s health and safety.” Staff of

Subcomm. on Crim. Just., supra, at 9. The FDA

27

subverted patient safeguards when it violated the

APA, FDCA, and PREA’s requirements.

CONCLUSION

If the Court grants the FDA and/or Danco’s

petitions for a writ of certiorari, then Amici urge the

Court to grant Alliance for Hippocratic Medicine’s

conditional cross-petition. The FDA unlawfully

approved mifepristone as a “life-threatening illness”

under Subpart H, and subverted patient safeguards

within federal laws. The FDA’s actions have

endangered women and girls seeking these dangerous

drugs.

Respectfully submitted,

STEVEN H. ADEN

Counsel of Record

CAROLYN MCDONNELL

DANIELLE PIMENTEL

AMERICANS UNITED FOR LIFE

1150 Connecticut Ave., N.W.

Suite 500

Washington, DC 20036

Steven.Aden@aul.org

Telephone: (202) 741-4917

Counsel for Amici Curiae

November 15, 2023

APPENDIX

ia

APPENDIX TABLE OF CONTENTS

APPENDIX TABLE OF CONTENTS ...................... ia

LIST OF AMICI CURIAE ........................................ 1a

U.S. Senate.......................................................... 1a

U.S. House of Representatives ........................... 2a

1a

LIST OF AMICI CURIAE

U.S. Senate

Lead Senator: Cindy Hyde-Smith (MS)

John Barrasso (WY)

John Hoeven (ND)

Mike Braun (IN)

James Lankford (OK)

Katie Britt (AL)

Roger Marshall (KS)

Ted Budd (NC)

Markwayne Mullin (OK)

Bill Cassidy (LA)

James Risch (ID)

Kevin Cramer (ND)

Marco Rubio (FL)

Mike Crapo (ID)

Rick Scott (FL)

Steve Daines (MT)

Roger Wicker (MS)

2a

U.S. House of Representatives

Lead Representative: August Pfluger (TX–11)

Robert Aderholt (AL–04)

Mark Alford (MO–04)

Rick Allen (GA–12)

Jodey Arrington (TX–19)

Brian Babin (TX–36)

Michael Burgess, M.D.

(TX–26)

Eric Burlison (MO–07)

Kat Cammack (FL–03)

Jerry Carl (AL–01)

Don Bacon (NE–02)

Earl L. “Buddy” Carter

(GA–01)

James Baird (IN–04)

Ben Cline (VA–06)

Troy Balderson (OH–12)

Michael Cloud (TX–27)

Jim Banks (IN–03)

Andrew S. Clyde (GA–09)

Aaron Bean (FL–04)

Mike Collins (GA–10)

Cliff Bentz (OR–02)

Dan Crenshaw (TX–02)

Andy Biggs (AZ–05)

Warren Davidson

(OH–08)

Gus Bilirakis (FL–12)

Lauren Boebert (CO–03)

Mike Bost (IL–12)

Josh Brecheen (OK–02)

Tim Burchett (TN–02)

Jeff Duncan (SC–03)

Dr. Neal Dunn (FL–02)

Jake Ellzey (TX–06)

Ron Estes (KS–04)

3a

Mike Ezell (MS–04)

Ashley Hinson (IA–02)

Scott Fitzgerald (WI–05)

Erin Houchin (IN–09)

Virginia Foxx (NC–05)

Richard Hudson (NC–09)

Russ Fulcher (ID–01)

Bill Johnson (OH–06)

Bob Good (VA–05)

Jim Jordan (OH–04)

Lance Gooden (TX–05)

Mike Kelly (PA–16)

Paul A. Gosar, D.D.S.

(AZ–09)

Trent Kelly (MS–01)

Garrett Graves (LA–06)

Mark Green (TN–07)

Marjorie Taylor Greene

(GA–14)

Michael Guest (MS–03)

Harriet Hageman (WY)

Andy Harris, M.D.

(MD–01)

Doug Lamborn (CO–05)

Jake LaTurner (KS–02)

Debbie Lesko (AZ–08)

Barry Loudermilk

(GA–11)

Lisa McClain (MI–09)

Dr. Richard McCormick

(GA–06)

Carol Miller (WV–01)

Diana Harshbarger

(TN–01)

Mary Miller (IL–15)

Kevin Hern (OK–01)

John Moolenaar (MI–02)

Clay Higgins (LA–03)

Alex X. Mooney (WV–02)

4a

Barry Moore (AL–02)

Nathaniel Moran (TX–01)

Ralph Norman (SC–05)

Andrew Ogles (TN–05)

Gary Palmer (AL–06)

Bill Posey (FL–08)

Mike Rogers (AL–03)

John Rose (TN–06)

Christopher H. Smith

(NJ–04)

Claudia Tenney (NY–24)

Glenn “GT” Thompson

(PA–15)

William Timmons, IV

(SC–04)

Beth Van Duyne (TX–24)

Tim Walberg (MI–05)

David Rouzer (NC–07)

Randy Weber, Sr.

(TX–14)

John H. Rutherford

(FL–05)

Daniel Webster (FL–11)

Austin Scott (GA–08)

Brad R. Wenstrup,

D.P.M. (OH–02)

Keith Self (TX–03)

Pete Sessions (TX–17)

Adrian Smith (NE–03)

Roger Williams (TX–25)

Joe Wilson (SC–02)

Rudy Yakym (IN–02)

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