ACOG Amicus Briefs

ACOG’s amicus briefs are a source of medically accurate, evidence-based information on comprehensive reproductive health care, including access to health care, obstetrics, medical ethics, contraception, and abortion. Courts across the United States, including the United States Supreme Court, have cited ACOG’s briefs as a leading medical resource.

ACOG’s amicus brief practice has grown in the past several years—in 2020 alone ACOG filed 27 supporting briefs—as have its efforts to build larger and broader coalitions of medical and public health authorities in joining this critical advocacy. In 2020, ACOG expanded its leadership in legal advocacy by serving as lead plaintiff in major litigation to ensure access to medication abortion during the COVID-19 pandemic, working with a groundbreaking coalition that brought together key voices in the reproductive justice movement and medical and academic communities.

Below are some, but not all, of ACOG’s recent advocacy efforts in the courts:

Evidence Based Reproductive Health Care

Whole Woman's Health v. Hellerstedt and June Medical Services v. Russo

ACOG's work has been cited in a number of decisions that protect our members' ability to provide abortion care to their patients without undue government interference and that preserve women's access to care. Notably, ACOG's amicus brief was cited by the majority and concurring justices of the U.S. Supreme Court in striking down Texas’s medically unnecessary requirements for abortion care providers in Whole Woman's Health v. Hellerstedt as well as in the plurality opinion in June Medical Services v. Russo (brief), striking down a Louisiana law almost identical to the one at issue in Whole Woman’s Health.

Dobbs v. Jackson Women’s Health Organization

On September 20, 2021, ACOG led a coalition of more than twenty associations of the nation’s leading physicians, nurses, and other medical care providers in submitting an amicus brief to the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, a case challenging the State of Mississippi’s unconstitutional attempt to ban nearly all abortions after fifteen weeks of pregnancy. The case will be heard later this year.

ACOG routinely leads medical community briefs filed in cases challenging restrictions on evidence-based reproductive health care in courts around the country, presenting for the courts scientifically grounded evidence that abortion is a safe medical procedure that is an essential component of comprehensive reproductive health care. ACOG’s briefs also outline for the court that the patient-physician relationship is paramount to providing safe, high quality care and that relationship should be free from legislative interference that has no basis in medical evidence. 

Protecting Access in the Time of COVID

Request to Suspend FDA In-Person Dispensing Requirement for Mifepristone

ACOG led a coalition of organizations in a step toward achieving equitable access to care for patients during the COVID-19 pandemic by asking a federal court to require the U.S. Food and Drug Administration (FDA) to suspend a harmful FDA restriction on dispensing mifepristone. The lawsuit, filed in federal court in Maryland, asked the court to suspend the in-person dispensing requirement for mifepristone, which is used for early miscarriage management as well as induced abortion. For years the medical community has opposed these dispensing requirements, which have no medical basis; however the restrictions pose an even more significant obstacle to patients’ access to care during the pandemic.

The harm of these restrictions falls disproportionately on underserved communities who are burdened by the need to travel, arrange childcare, and present to their chosen clinician, in person, for the dispensing of the medication. On July 13, 2020, the court halted enforcement of the in-person dispensing requirement. However, that injunction was only in place until January 2021, when the Supreme Court reinstated the requirement.

Following the Supreme Court’s action, ACOG and 20 other medical societies sent a letter to the Biden Administration, urging the Administration to work with FDA to issue non-enforcement guidance for the mifepristone REMS in-person dispensing requirement (and related in-person signature requirement) for the duration of the COVID-19 public health emergency. In April 2021, the FDA issued guidance that did just that, suspending the in-person dispensing requirement for mifepristone when used for pregnancy termination, until the public health emergency ends.

Case Documents

Opposing Restrictions on Medically Necessary, Time-Sensitive Care

In late March and early April of 2020, as states issued restrictions on non-medically necessary surgical and medical procedures due to the COVID-19 pandemic, several states (including Alabama, Arkansas, Ohio, Oklahoma, Texas, and Tennessee) issued orders that extended the definition of a non-medically necessary care to explicitly or implicitly include procedural and sometimes medication abortions.

Clinics and other organizations challenged these restrictions in court because of the undue burdens on access to care that these restrictions caused. ACOG filed amicus briefs in these cases (six in all) highlighting for the court that abortion is a safe, medically necessary, time-sensitive health care procedure that rarely results in complications. Furthermore, limiting access in this way, particularly during a public health crisis, would place significant burdens on patients, which would fall disproportionately on those from underserved areas and communities of color. Courts enjoined several of the restrictions. Other restrictions lapsed when the emergency orders on non-medically necessary care were lifted.

Defending the Affordable Care Act

Contraception Access Under the ACA

ACOG has filed numerous amicus briefs in support of patient access to copay free contraception under the Affordable Care Act (ACA). Most recently, ACOG, along with other medical groups, filed amicus briefs supporting challenges to federal regulations that undermine the copay-free contraception requirement by allowing certain employers to opt out of providing that coverage in their employee health plans because of religious or moral objections.

ACOG also submitted factual declarations regarding the importance of access to affordable contraceptive options to patients’ overall health and well-being. Unfortunately, in July 2020, the Supreme Court’s majority found that the rules allowing the religious and moral exception were created lawfully and that thus employers should be allowed to opt out of providing copay free coverage for contraception. Justice Ginsberg cited ACOGs’ brief multiple times in her dissent, in which she observed that according to government estimates, the decision would immediately cause between 70,500 and 126,400 women to lose access to no-cost contraceptive services.

Texas v. California

ACOG has also filed amicus briefs in defense of the ACA more broadly. In May 2020, ACOG joined the American Medical Association (AMA) and numerous other medical organizations in filing an amicus brief in Texas v. California (formerly Texas v. Azar), which challenges the constitutionality of the individual mandate under the ACA.

The medical community brief in this case argued that the ACA’s impact of health care in the United States is much larger than just the individual mandate and thus, even if the court found the individual mandate to be unconstitutional, the remainder of the sprawling, landmark statue should remain in force. In June 2021, the Supreme Court found that the plaintiff states (led by Texas) did not have standing to bring the suit rendering the issue of the constitutionality of the ACA moot and allowing the law to remain in effect.

Medical Liability

Byrom v. Johns Hopkins Bayview

In early 2020, ACOG joined the AMA in filing a brief in a Maryland state appellate court in Byrom v. Johns Hopkins Bayview. The brief illustrated for the court that if it found the hospital liable because physicians provided relevant medical information to a patient and respected that patient’s right to refuse recommended care, the court would upend longstanding principles of medical ethics and legal precedent on informed consent. In February 2021, the Maryland Court of Special Appeals overturned the verdict finding that the plaintiff had disregarded medical advice in refusing the recommended care.

Busch v. McInnis

In 2019, ACOG also joined the AMA in filing a brief in the Oregon Supreme Court in a case (Busch v. McInnis) that could stand to open the door for a re-examination of whether the state’s cap on non-economic damages is unconstitutional. At the time of the law’s passage, ACOG’s Oregon Section testified in support of this cap before the state legislature, citing its impact of medical practice in the state. Unfortunately, in July 2020, the Oregon Supreme Court found that the $500,000 statutory non-economic damages cap violates the remedy clause of the state constitution, effectively invalidating the law that ACOG’S Oregon Section supported.

Texas Health Presbyterian v. D.A.

In 2018, ACOG filed a brief in the Texas Supreme Court (Texas Health Presbyterian v. D.A.) to explain why emergency care provisions protective of physicians should apply equally to care rendered in emergent situations in the obstetric unit, regardless of whether the patient presented through the emergency department. The Court ruled in favor of the position set forth in ACOG's brief and held that care rendered exclusively in the obstetrical unit should be subject to the same emergency standard.