by Kelcie Moseley-Morris, Ohio Capital Journal
October 16, 2023

A group of more than 600 Democratic legislators from 49 states have signed an amicus brief to the U.S. Supreme Court urging the justices to overturn an appellate court decision that would roll back access to mifepristone, one of two drugs used to safely terminate early pregnancies and treat miscarriages.

The amicus brief, also called a “friend of the court” brief, was organized by State Innovation Exchange’s Reproductive Freedom Leadership Council and assembled over the past week, said Jennifer Driver, the group’s senior director of reproductive rights. Driver said State Innovation Exchange, also known as SiX, provides tools and resources for state legislators to advocate for progressive public policies after being elected to office.

Driver said SiX did ask Republican legislators to sign on as well, but didn’t manage to garner any bipartisan support.

Every state, with the exception of Mississippi, had Democratic legislators who signed their names to the brief, with the highest number of participants from Illinois, followed by North Carolina, New York and Colorado. Driver said 13 state representatives from Arkansas also signed on.

“This statement should say that across the country, in almost every state, there are legislators that are saying their ability to protect their community should not be interfered with,” Driver said. “Even in ruby red states, there are legislators who are still fighting for abortion access, and they understand the ramifications of what happened in Dobbs and what could happen in this case.”

Upholding 5th Circuit would mean reinstating prior restrictions on pill  

The Supreme Court has not yet accepted the Alliance for Hippocratic Medicine’s case against the U.S. Food and Drug Administration, but the court already involved itself in April by temporarily blocking the 5th Circuit Court of Appeals’ decision. If the high court declines to hear the case or upholds the appellate court’s ruling, the FDA’s rules that allowed expanded access of mifepristone would be struck down.

That would include the ability for providers to prescribe the medication via telehealth or send the medication in the mail, and it would decrease the time limit from 10 weeks of pregnancy to seven weeks. The results of most pregnancy tests are not reliable until after an individual has already missed a period at four weeks of pregnancy.

It would also require patients to see providers at three separate clinic appointments in person, which would be especially difficult for those traveling from one of the 14 states with abortion bans to access care.

The Alliance for Hippocratic Medicine is a group of four anti-abortion organizations and four doctors that formed in 2022 and incorporated in Amarillo, Texas. U.S. District Judge Matthew Kacsmaryk, who is in Amarillo, made the initial ruling that would have revoked mifepristone’s approval in its entirety, leading some to conclude the plaintiffs chose to incorporate there for a favorable outcome in Kacsmaryk’s court.

The plaintiffs are represented by the Alliance Defending Freedom, a religious conservative group that recruits and trains attorneys to litigate cultural issue cases, including abortion, anti-LGBTQ legislation and what they consider violations of Christian religious freedom. The same organization was also involved in the U.S. Supreme Court’s Dobbs decision overturning the constitutional right to an abortion. The attorneys have argued the FDA illegally approved mifepristone in 2000, and have repeatedly contended that the drug is unsafe and responsible for many deaths — a claim that is not backed by credible sources. According to the FDA, 28 deaths out of an estimated 5.6 million people in 23 years have been associated with mifepristone’s regimen for terminating a pregnancy, which is a markedly lower rate than many common FDA-approved drugs, like Tylenol and Viagra. And as the FDA notes, that small number includes fatal cases “regardless of causal attribution to mifepristone,” including people who died from homicide, suicide, and pulmonary emphysema.

Legislators in Minnesota, North Carolina take the lead on brief 

In the Dobbs decision, authored by Justice Samuel Alito and issued in June 2022, the justices in favor of overturning Roe v. Wade said the regulation of abortion should be left to the states, “in accordance with the views of its citizens,” just as it was prior to the Roe ruling in 1973.

“It is time to heed the [U.S.] Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.

That’s one of the reasons why the legislators decided to submit the brief, said Minnesota Democratic state Sen. Erin Maye Quade, one of two lawmakers leading the effort. While the legislators who signed on aren’t saying they agree with the Dobbs decision or the Supreme Court’s interpretation of the law, the justices’ own logic for the decision demonstrates that federal courts should not come between state laws on the issue of abortion.

“This [case] gives them an opportunity to decide whether abortion is really going to be up to states or not,” Maye Quade told States Newsroom on Tuesday.

The representatives and senators also argue that elected officials rely on the FDA’s authority to approve medications on the market, and allowing the 5th Circuit’s ruling to stand would undermine that authority. In a state like Minnesota, which is almost entirely surrounded by states with abortion bans, access to mifepristone is vital, Maye Quade said. Following Texas’ implementation of its abortion ban prior to the Dobbs ruling in 2022, Minnesota started to see an increase in patients seeking care. Maye Quade said there was a 20% increase in the state in 2022, and in 2023, the numbers continue to increase.

The other lawmaker leading the case is Rep. Julie von Haefen, a Democrat in North Carolina’s General Assembly. The legislature in North Carolina passed Senate Bill 20 earlier this year, banning abortions after 12 weeks of pregnancy and requiring patients to receive counseling at least 72 hours before the termination is scheduled to take place. A report issued Wednesday by the Guttmacher Institute showed between June and July, when the law went into effect, abortions decreased by 31%. North Carolina was an access point for many people in surrounding states, von Haefen said, and that drop was jarring.

“We just believe that the Supreme Court made this decision in Dobbs, and they have to step in and say, ‘No more, we have to leave these decisions to state legislators,’” von Haefen said.

According to the U.S. Supreme Court’s docket, attorneys for the plaintiffs are scheduled to file their brief in opposition to the court taking the case by Nov. 9.

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