Northwest advocates – and Washington Attorney General Bob Ferguson – say the Texas case that prompted the recent Supreme Court decision should never have made it that far in the first place.
“The idea that a handpicked judge in Texas could issue such a radical decision eliminating reproductive freedom for individuals across the entire country, including states like Washington where abortion is safe and legal, is outrageous,” said Ferguson on Friday. “But that’s the world we live in, and that’s why we’re relieved by the Supreme Court’s decision.”
The decision came in response to emergency requests from the Biden administration and a manufacturer of the drug that access to the pills be maintained while the Fifth U.S. Circuit Court of Appeals hears arguments in a case challenging the FDA’s original approval of the drug. Oral arguments are scheduled for May 17 in the Texas case, but it is expected to make it to the Supreme Court eventually, along with a case from Washington seeking instead to broaden access to mifepristone.
In response to the Supreme Court’s decision last Friday, Planned Parenthood announced it would continue to dispense mifepristone in Washington.
“For over 20 years, mifepristone has helped expand access to abortion care, allowing patients to make their own private medical decisions. We are thrilled to continue providing mifepristone to our patients,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky in a news release.
While some cheered Friday’s news as a triumph, Planned Parenthood’s Mack Smith said the decision was not a victory; it merely demonstrated how unpredictable the Court has become since last summer’s Dobbs decision overturning Roe v. Wade. “These views are so extreme that we’re viewing people abiding by the law as a win now, and we can’t accept that from our court system, and definitely can’t be accepting that from our lawmakers across the country,” she said.
The news also sowed confusion, she said, with media accounts implying that all access to medication abortion would be lost. “What is important for Washingtonians to know about this case is that medication abortion remains safe and legal, and really, regardless of the outcome, medication abortion will remain an option for Washingtonians,” she said.
That’s because even without mifepristone, another abortion drug can be used effectively on its own: misoprostol, the drug used in most medication abortions. Providers in Washington have said they’ll turn to this option if access to mifepristone is restricted further.
Boxes of the drug mifepristone. (Department of Health)
But the Supreme Court decision affirms ongoing access to the drug for now, as a three-judge panel reviews the Fifth Circuit case. At the same time, a second lawsuit could expand access to mifepristone in Washington, the District of Columbia and 16 other states. That lawsuit is moving forward, said Attorney General Ferguson on Friday.
While some media accounts described the Supreme Court’s decision as retaining “broad” or “unfettered” access to mifepristone, the drug has never been widely available. Under a restriction known as a risk evaluation and mitigation strategy, the FDA has curtailed access to the drug through a series of requirements more typically applied to medications with indisputably deadly track records, like synthetic opioids.
This is the basis for Washington’s lawsuit, which argues there has never been a clear reason for these restrictions, and that they should be lifted. “Our case is arguing that these restrictions that the FDA has placed on mifepristone are illegal, that they’re arbitrary, and they need to be eliminated,” Ferguson said.
The judge in that case has ordered the FDA not to impose any additional restrictions on the drug in Washington and the other plaintiff states. “The case now proceeds to what we call the merits of the case, where the judge will ultimately decide whether or not those restrictions should be eliminated,” Ferguson said.
He believes it is likely that between the Washington lawsuit and Fifth Circuit case, mifepristone’s future could end up being determined by the Supreme Court.
“Once this group of anti-abortion activists handpicked this judge in Texas and filed their lawsuit, that started a chain of events that allowed for the possibility that the U.S. Supreme Court would ultimately weigh in on access to mifepristone,” Ferguson said. “So our case didn’t really change that.” Still, he added, in the Washington lawsuit, “we think that we’re going to prevail on increasing access to mifepristone, which is especially important in a post-Dobbs world.”
U.S. District Judge Matthew Kacsmaryk, who tried to impose a nationwide ban on mifepristone with his ruling in Texas, says the FDA had improperly approved the drug 23 years ago.
Smith said the trajectory of the Texas lawsuit was reflective of ongoing efforts to blunt access to abortion more broadly.
“This is a pretty clear attempt to pass a de facto national abortion ban, despite the fact that some of these same lawmakers are trying to claim that this is a states’ issue,” she said. The Supreme Court’s Dobbs ruling included that point of view: that abortion rights should be decided by individual states.
While mifepristone remains accessible in states like Washington and Oregon, elected officials elsewhere have pushed for the opposite outcome. In March, 20 Republican state attorneys general, including Alaska’s Treg Taylor, sent a letter warning CVS, Walgreens, and other pharmacies that the companies could face legal penalties for dispensing the drug.
Still, said, Smith, “medication abortion remains an option for patients in the state of Washington, and as long as we have any say in it, that will remain the case … we’re not going to be sitting back and breathing a sigh of relief and saying that this fight is over because we know that it is far from it, and we’re ready for that.”
Ahead of the Texas ruling that led to the Supreme Court’s decision, Washington secured a stockpile of mifepristone — 30,000 doses, or an estimated three years’ supply of the drug. The pills were purchased through the state Department of Corrections, which has a pharmacy license, and arrived in Washington on March 31. A bill authorizing their distribution passed both chambers of the state Legislature earlier this month and was delivered to Gov. Jay Inslee on April 24.
Proactive policies like this are part of an ongoing strategy in states like Washington, as abortion-hostile legislatures elsewhere impose a glut of bans and restrictions — a dynamic encapsulated in the ongoing efforts to restrict mifepristone despite its safety record and efficacy.
“We’re at a point in our country where the future of reproductive freedom is at stake,” said Ferguson. “That’s not hyperbole. That’s just a fact.”
