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ERLC files amicus brief in Supreme Court abortion drug case

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NASHVILLE (BP) – The Ethics & Religious Liberty Commission has filed an amicus brief in an upcoming Supreme Court case which will rule on the availability of mifepristone, a drug commonly used in medication abortions.

The case, Food and Drug Administration v. Alliance for Hippocratic Medicine, will be the first time the Supreme Court has weighed in on the issue of abortion since the historic overturning of Roe v. Wade in 2022.

The High Court will review an August 2023 decision made by the Fifth Circuit Court of Appeals in New Orleans that placed limitations on the availability and usage of mifepristone. The ruling of the appeals court would end the availability of the drug by mail, allow the drug to be used only through the seventh week of pregnancy (rather than the previous limitation of 10 weeks) and require the drug to be administered in the presence of a physician.

This ruling, put on hold by the Supreme Court until its decision is handed down, would reverse changes the FDA made in 2016 and 2021 that eased conditions for obtaining the drug.

Originally approved by the FDA in 2000, mifepristone is reportedly used for more than half of all abortions in the United States. The drug is made by New-York based Danco Laboratories and is used in combination with a second drug, misoprostol, in medication abortions.

After the overturning of Roe v. Wade, many pro-life advocates turned their attention to the issue of medication abortion. Advocates filed a challenge to mifepristone in November 2022. In April 2023, a federal judge in Texas suspended the FDA’s original approval of the drug and its later changes to conditions for accessing the drug which made it more widely available.

The Department of Justice appealed this decision to the Fifth Circuit, leading to the decision from last August. Although the appeals court ruled to uphold access limitations for the drug, it did not rule in favor of revoking the FDA’s initial approval of it, saying efforts for reversal came too late.

In September 2023, both the Biden administration and Danco appealed to the Supreme Court to review and reverse the Fifth Circuit’s ruling. Danco is involved in a separate case, Danco Laboratories v. Alliance for Hippocratic Medicine, which also focuses on mifepristone. Alliance for Hippocratic Medicine is a medical pro-life advocacy group.

In December, the High Court agreed to review both appeals, later announcing oral arguments will be heard on March 26. The two cases will be heard together.

Since this announcement, doctors, pro-life advocacy groups, more than 20 states and more than 100 members of Congress have filed amicus briefs in the FDA case.

The ERLC filed an amicus brief on Feb. 29 alongside two fellow pro-life organizations, Human Coalition and National Association of Evangelicals.

Hannah Daniel, policy director for the ERLC, said the brief focuses on both the tremendous loss of life mifepristone has caused and its traumatic effect on the women who have used it.

“As Southern Baptists, we know that abortion takes the life of a precious child made in the image of God,” Daniel said.

“Chemical abortion not only takes that life but also leaves physical and emotional scars on thousands of women who take these harmful drugs. The brief that we have filed before the Supreme Court tells the stories of those women who were sold lies and faced the horrific realities of chemical abortion. Through these powerful stories, we are urging the Court to uphold the Fifth Circuit’s ruling and reinstate vital safety precautions that will radically limit the usage of mifepristone.”

The brief is broken down into four different points of argument:

  1. Medication abortion causes significant physical harm to women.
  2. Abortion psychologically damages women.
  3. Unfettered access to mifepristone will likely increase reproductive coercion and crimes against pregnant women.
  4. All human life is valuable and must be protected from the dangers of mifepristone.

The document condemns the FDA’s approach to mifepristone over the years, and the negative effects it has caused.

“The FDA’s removal of the in-person dispensing requirement has already led to increased harm to women,” the brief states. “The FDA data shows that 12.5% of the total deaths reported to the FDA since mifepristone was approved in 2000 were recorded during the last 6 months of 2022. During this period, women were not required to visit an abortion provider to obtain a medication abortion.

“What’s more, amici believe in the inherent dignity and worth of all human beings—including women and unborn children. Amici also affirm that every human is made in the image of God and must be protected from harm. The FDA has placed the incalculably valuable lives of women and their children in harm’s way in the pursuit of political favor. Its decision cannot stand.

“The FDA’s removal of important safeguards for mothers harms the physical and mental well-being of women and ends human lives.”

The brief also includes the aforementioned personal testimonies of women who have experienced the negative effects of mifepristone first-hand. It concludes with a stern word against the FDA’s approval of the drug and its potential future.

“The FDA failed millions of women and their unborn children when it eliminated necessary safeguards for mifepristone at the insistence of the abortion industry. Even with safeguards in place, medication abortion caused severe damage to the physical and mental health of women, while ending the lives of children. Women and their unborn children alone will bear the costs of the FDA’s irresponsible deregulation of medication abortion.”