New amicus curiae brief before the United States Supreme Court
Women Enabled International (WEI), the Disability Rights Education and Defense Fund (DREDF), and Allen & Overy LLP filed an amicus brief on behalf of twelve disability rights organizations and scholars in the United States Supreme Court, advocating for a return to the use of updated regulations for mifepristone, a drug used to carry out medication abortion, that improved access to safe abortion. The brief highlights the disproportionate impact that medically unnecessary restrictions on medication abortion have on people with disabilities.
About the case
Medication abortion is the most commonly used method of abortion in the United States, accounting for more than half of all abortions. Mifepristone is part of a two-drug regimen for medication abortion and was first approved by the U.S. Food and Drug Administration (FDA) in 2000. Since its approval, the drug has established a well-documented safety record, as demonstrated by hundreds of high-quality studies and its real-world use by more than five million people.
This lawsuit—filed by anti-abortion advocates against the FDA and the manufacturer of mifepristone, Danco Laboratories, in November 2022—challenges the FDA’s initial approval of mifepristone as well as its more recent actions to increase access to the drug. The Fifth Circuit, a U.S. Court of Appeals, did not block the FDA’s 2000 initial authorization of mifepristone in its ruling, it reinstated burdensome restrictions on the drug from before 2016. These restrictions included: ending the ability of certified nurse practitioners and physician assistants to prescribe mifepristone; reinstating in-person dispensing requirements for prescriptions; and stopping a new pharmacy certification process, which enabled retail pharmacies to dispense mifepristone directly to patients.
In December 2023, the United States Supreme Court announced that they would hear the case on appeal from the Fifth Circuit’s decision. The Supreme Court will be determining if the FDA’s 2016 and 2021 changes to mifepristone regulation should be reinstated.
If the Supreme Court does not reverse the Fifth Circuit’s decision, access to the most common medication abortion regimen used in the U.S. would be limited across the country—even in those states where abortion rights are protected.
About the amicus curiae brief
An amicus curiae (“friend of the court,” in Latin) is a person or organization with a strong interest in the issues brought up in a case to which they are not a party. The amicus curiae may submit a written brief stating its interpretation of the law or arguments relating to the facts under consideration by the Court.
WEI, DREDF, and Allen & Overy LLP have filed an amicus brief with twelve other disability rights organizations and scholars including:
- The American Association of People with Disabilities
- The Autistic Self Advocacy Network
- Autistic Women & Nonbinary Network
- The Bazelon Center for Mental Health Law
- Civil Rights Education and Enforcement Center
- Disability Rights Advocates
- Disability Rights New York
- The National Council on Independent Living
- Katherine Pérez, Director of the Coelho Center for Disability Law, Policy, and Innovation, and Visiting Professor of Law at Loyola Law School*
- Professor Ruth Colker, Distinguished University Professor and the Heck Faust Memorial Chair in Constitutional Law at the Moritz College of Law, Ohio State University*
- Professor Robyn M. Powell, Associate Professor of Law at the University of Oklahoma College of Law*
- Tony Coelho, former U.S. Congressman
* Participating in their individual capacity, not as representatives of their institutions. Institutions are listed for affiliation purposes only.
The amicus brief outlines how reinstating outdated restrictions on medication abortion disproportionately burdens pregnant people with disabilities, who face more barriers to accessing care. The amicus brief urges the United States Supreme Court to reverse the Fifth Circuit’s decision which rolled back the clock on medication abortion access.
WEI, DREDF, and Allen & Overy’s amicus brief argues the following key points:
- Restricted access to mifepristone creates a healthcare crisis that disproportionately harms people with disabilities. People with disabilities are more at risk for severe maternal morbidities and maternal mortality during their pregnancies than non-disabled people and pregnancy can worsen disability-related health outcomes.
- Unnecessary restrictions to mifepristone exacerbate the harms that people with disabilities already encounter in terms of physical barriers to accessing abortion care (such as inaccessible medical clinics and non-existent adaptive equipment). Telehealth abortion appointments and mailed prescriptions give people with disabilities the option to access care without the delays of navigating inaccessible facilities.
- Without expanded options for medication abortion care, people with disabilities will continue to experience transportation and logistical barriers to reproductive health care that raise privacy, abuse, and coercion concerns. Inaccessible travel options and logistical barriers like transportation reliance on third parties place people with disabilities at risk for reproductive coercion and compromise their medical privacy.
- Regulation of mifepristone that is not supported by medical research further harms people with disabilities who already face disproportionate financial barriers and medical system discrimination.
The amicus brief can be viewed here.