ACLJ Fights Against Abortion Drug in Federal Appeals Court

GenBioPro, the company that manufactures the generic version of the abortion drug mifepristone, is challenging West Virginia’s restrictions on abortion. The ACLJ has filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit defending West Virginia’s laws.

With the fall of Roe v. Wade in the Dobbs case, abortion advocates can no longer rely upon a supposed federal constitutional right to abortion when challenging restrictions on abortion in court. Instead, they now resort to creative alternative arguments, such as the claim that a particular state’s abortion laws simply are no longer in effect or that federal statutes governing emergency room care somehow protect abortion.

GenBioPro’s lawsuit presents another creative argument: federal preemption. The argument is that since the federal Food and Drug Administration (FDA) has approved the abortion drug mifepristone, states cannot interfere with its use because federal law takes precedence over – preempts – state and local law. But as we respond in our amicus brief:

GenBioPro’s contention is patently absurd. That fentanyl is FDA-approved for pain relief, for example, does not mean a state is preempted from outlawing homicide because – or when – the killing was effectuated by use of fentanyl. See Man Convicted of Killing Roseville Teen after Fentanyl Overdose Death, ABC10 (July 7, 2023). . . . That the FDA might approve a drug does not mean a state cannot forbid its use to harm others.

Meanwhile, the American College of Obstetricians and Gynecologists (ACOG) filed its own amicus brief, seeking to bolster GenBioPro’s challenge. We tore into ACOG’s filing, making several key points.

First, we point out that ACOG is no neutral expert but rather a pro-abortion advocacy group:

What ACOG remarkably fails to mention is that it holds a strong advocacy position on abortion, namely, ACOG “is committed to protecting and increasing access to abortion."

Indeed, ACOG previously modified an official statement on abortion in response to a Clinton White House request. As one commentator noted (and we quoted), a Clinton staffer “doctored” a draft ACOG statement, and ACOG adopted the “spin.” The Supreme Court later invoked the politically inserted phrasing. Said the commentator: “All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor.”

Oh, by the way, the White House aide was future Supreme Court Justice Elena Kagan.

Next, we counter ACOG’s assertion that drugs are “exceedingly safe.” As we note, “Pregnancy loss is a dreaded complication.” Medical authorities routinely “warn pregnant women which drugs to avoid during pregnancy.” But “[t]he whole point of abortion pills, however, is to cause that adverse event.” Thus, “except when the drug does not work, every single woman who takes mifepristone undergoes an adverse event: pregnancy loss.”

We then refute ACOG’s invocation of the irresponsible claim that “[t]he risk of death associated with childbirth is approximately 14 times higher than that with abortion.” As the ACLJ has repeatedly demonstrated, “this claim – that continuing pregnancy is more deadly than abortion – is unsupported and false.” (For a detailed exposition of this point – which every pro-life advocate should be familiar with – read our Dobbs amicus brief on behalf of the Elliot Institute.)

But that’s not all. As we continue:

It is bad enough that ACOG repeats the debunked mantra that abortion is safer than childbirth. But ACOG does not stop there. In its tirade against pregnancy, ACOG cites a list of five “dangerous” conditions facing pregnant women. ACOG Amicus at 11-13. Yet each of the five conditions manifests itself after the 70-day (10-week) window for taking mifepristone has already closed. . . . It makes no sense to tout mifepristone as a remedy to complications that do not become apparent until after the time for taking mifepristone has already passed.

Finally, we respond to ACOG’s fear-mongering about the dangers of pregnancy and childbirth.

According to the CDC, the maternal mortality rate for 2021 was 32.9 deaths per 100,000 live births. Donna L. Hoyert, Maternal Mortality Rates in the United States, 2021, CDC (last reviewed Mar. 16, 2023). This figure inflates the death rate, as noted [earlier in this brief]. But even taking the CDC’s number as a given, that translates to odds of roughly 1 in 3040. That is lower than the risks of dying from choking on food (1 in 2659), drowning (1 in 1006), and dying in a motor vehicle crash (1 in 93). Odds of Dying, National Safety Council (2021 data). ACOG does not raise a similar alarm about eating, swimming, or riding in a car, each of which is more likely to cause death than pregnancy and childbirth.

It is highly ironic that ACOG, the most prominent professional organization for physicians who handle pregnancy and childbirth, should paint pregnancy and childbirth as hazards for which abortion is needed as a remedy. Fortunately, there are alternative professional groups, such as the American Association of Pro-life Obstetricians and Gynecologists (AAPLOG), which do not buy into ACOG’s abortion advocacy. And there is the ACLJ, which is ready to call ACOG on its false claims.

GenBioPro’s lawsuit failed in the federal district court in West Virginia, which is why GenBioPro has appealed to the federal Fourth Circuit. We hope our ACLJ amicus brief helps the federal appeals court to see that the district court got it right and that the Fourth Circuit should affirm the rejection of GenBioPro’s lawsuit.