ACLU to SCOTUS: Lower Courts Used “Junk Science” to Block Abortion Medication

An amicus brief — or “friend of the court” petition — submitted to the U.S. Supreme Court by the American Civil Liberties Union (ACLU) urges justices of the High Court to reject lower court orders that have sought to severely curtail access to abortion medication known as mifepristone.

The drug is used in a majority of abortions across the country, and is currently approved for up to 10 weeks of pregnancy. Deregulation of its use during the COVID-19 pandemic (and following the Court’s overturn of Roe v. Wade in June 2022) allowed for the drug to be more widely available, permitting doctors to prescribe it through telemedicine and letting it be sent to patients through the mail.

However, actions by a far right federal judge in Texas, as well as affirmation of parts of that judgment from a conservative appellate court, now threaten access to the drug for those who want or need it. Both opinions, the ACLU writes in its brief to the Supreme Court, were based on “junk science.”

“The lower courts uncritically relied at every stage on patently unreliable witnesses and studies,” the organization, joined by the Center for Reproductive Rights and the Lawyering project, said in its submission to the Court.

The ACLU noted, for example, that federal district Judge Matthew Kacsmaryk — the hand-picked jurist chosen by anti-abortion activists who initially ordered a block of mifepristone last year due to dubious claims that the Food and Drug Administration (FDA) rushed its approval back in 2000 — cited in his decision a “study” that purported to show that use of the drug resulted in negative mental health impacts. However, the research he cited was not scientifically sound. Indeed, it was based on 98 anonymous blog posts to an anti-abortion website, not any logical study that relied on the scientific method.

Other actions by Kacsmaryk and the Fifth Circuit Court of Appeals that ruled on an appeal of his decision “uncritically relied at every stage on patently unreliable witnesses,” the ACLU wrote.

The Fifth Circuit Court, widely acknowledged as the most conservative circuit court in the country, did not agree with Kacsmaryk that mifepristone should be blocked from use completely. However, it did order that the drug be restricted using rules that existed in 2016 — a move that would greatly limit its availability by reducing its use from 10 weeks to 7 weeks, disallowing telemedicine prescription methods and barring providers from sending the drug through the mail.

Yet that court’s decision, like Kacsmaryk’s, “cited Respondents’ witnesses’ untested declarations and outlier studies to justify standing, establish irreparable harm, and second-guess FDA’s scientific judgment,” the ACLU wrote, adding that both courts “did so without any adversarial testing or any even minimally discerning review of their studies.”

The judges on the Fifth Circuit Court, for instance, cited the work of Ingrid Skop 17 times in their ruling. Skop is a senior fellow and director of medical affairs at the Charlotte-based Lozier Institute, an anti-abortion “research” center that publishes “alarmist narratives” regarding the procedure and “spreads lies about research” to advocate “for deceptive anti-abortion centers,” an analysis from Equity Forward, a reproductive rights group, has noted.

“Dr. Skop admitted in 2020 that she is ‘not a really good researcher,’ and that she routinely ‘lift[s]’ language from other authors without attribution, claiming she ‘didn’t realize that, you know, using wording from a paper that you agreed with qualified as plagiarism,'” the ACLU wrote in a press release, citing some of the wording from its legal brief to the Supreme Court.

The Fifth Circuit Court also relied on testimony from Donna Harrison, whose “previous testimony in other courts has been proven as ‘inaccurate and incomplete,’ ‘generally at odds with solid medical evidence,’ ‘exaggerated or distorted,’ and ‘shaped primarily by the position she is advocating at the moment,'” the ACLU said.

Another individual the Fifth Circuit relied on in making its judgment was Mario Dickerson — a man who isn’t a medical expert at all but rather has an advanced study degree in theology.

“The evidence upon which the lower courts relied cannot survive even passing scrutiny. … [The lower courts] committed clear error when they displaced FDA’s judgment based on junk science,” the ACLU further alleged in its amicus brief, adding that:

The courts’ findings about alleged physical and psychological harm from medication abortion and the inadequacy of FDA’s adverse-event data have no valid scientific basis, as would have been evident from any meaningful examination of the underlying evidence. These studies—like the witnesses who authored and trumpeted them—fall far short of justifying the lower courts’ decisions to substitute their own judgments for FDA’s scientific assessment.

Julia Kaye, senior staff attorney at the ACLU Reproductive Freedom Project and the amicus brief author, elaborated on how far right courts used dubious studies and witness accounts to purposefully ignore that mifepristone is safe for use.

“This is a case in which a group of extremists who want to see abortion banned nationwide are using junk science to try to achieve that goal — and, so far, finding receptive ears from the judges they hand-selected to hear their case,” Kaye said in a press release.

“The Texas courts were apparently so eager to reinstate barriers to mifepristone that they swallowed hook, line, and sinker the debunked claims and laughably flawed research put forward by a bunch of discredited anti-abortion zealots,” Kaye added.