Debevoise Files Amicus Brief Asking Supreme Court to Preserve Broad Access to Mifepristone

30 January 2024

Debevoise & Plimpton LLP has filed an amicus curiae brief in the Supreme Court of the United States on behalf of the nation’s leading medical societies in an effort to protect access to mifepristone, a drug commonly used in medication abortion and miscarriage care. After the District Court’s preliminary order overriding the Food and Drug Administration’s (“FDA”) decisions to approve mifepristone and to relax certain limitations on its use, the Fifth Circuit heard the case and affirmed the District Court’s order in part – which would allow mifepristone to remain on the market, but would reinstate certain medically unnecessary restrictions on the prescription of mifepristone that the FDA had begun to remove in 2016. In December 2023, the Supreme Court granted certiorari and took up the case. Oral argument is set for March 26, 2024.

The medical societies’ amicus brief supports the FDA’s request to reverse the Fifth Circuit’s decision and preserve full access to mifepristone under the terms currently approved by the FDA. It underscores that mifepristone is an essential part of reproductive healthcare, that it is safe and effective, and that additional restrictions surrounding its use are neither medically necessary nor scientifically sound. As the brief states, “over decades of research and hundreds of studies, the findings are stark and consistent: mifepristone is exceptionally safe and it is rare for patients to experience even minor complications from medication abortion.” The brief makes clear that FDA’s decision to remove certain restrictions on mifepristone was firmly rooted in scientific evidence, and the current protocols offer an equivalent level of safety with the benefit of increased access.

Limiting the availability of and access to mifepristone impedes access to quality reproductive health care and will only exacerbate the risks already associated with pregnancy and childbirth. “Empirical evidence shows that women are at least 14 times more likely to die during childbirth than during any abortion procedure and are at an increased risk of experiencing hemorrhage, infection, and injury to other organs during pregnancy and childbirth.” The consequences will be most severe for populations who are already poorly served by the maternal health system, including people of color as well as low-income and rural patients.

The brief was filed on behalf of American College of Obstetricians and Gynecologists; American Medical Association; Society for Maternal-Fetal Medicine; American Academy of Family Physicians; American Academy of Pediatrics; American College of Physicians; American College of Preventative Medicine; American Gynecological and Obstetrical Society; American Society for Reproductive Medicine; American Thoracic Society; North American Society for Pediatric Adolescent Gynecology; Society for Adolescent Health and Medicine; Society of General Internal Medicine; Society of Gynecologic Oncology; Society of OB/GYN Hospitalists; and Society for Academic Specialists in General Obstetrics and Gynecology.

The Debevoise team is led by litigation partner Shannon Rose Selden and associates Adam Aukland-Peck and Megan McGuiggan, and includes associates Isabelle Canaan, Hillary Hubley, Zoe Jacoby, Nicole Marton, and Ned Terrace, along with law clerks Alexandra McDevitt and Kaitlyn McGill.