Supreme Court abortion pill ruling not likely to impact Washington

Though the unanimous ruling allows the drug mifepristone to stay on the market, Washington will continue its case to broaden access to the medication.

Bottles of abortion pills mifepristone, left, and misoprostol, right

Bottles of the abortion medications mifepristone and misoprostol at a clinic in Des Moines, Iowa, Sept. 22, 2010. (AP Photo/Charlie Neibergall)

After the Supreme Court rejected a challenge to the abortion drug mifepristone Thursday, the pill, one of two used in medication abortions and miscarriage management, remains available in states where abortion is legal, including Washington.

Pressure from advocates in Washington — including a lawsuit from Attorney General Bob Ferguson — played a role in shaping access to the drug ahead of the decision, which local leaders have cheered as a victory. But advocates say future challenges to mifepristone’s availability are likely.

“This radical challenge to the use of mifepristone failed. But it is not the first attack on reproductive freedom, and it won’t be the last,” said Ferguson in a Thursday statement on the ruling in Food & Drug Administration v. Alliance for Hippocratic Medicine, in which anti-abortion activists had tried to reverse the FDA’s 2000 approval of mifepristone, for use in abortions. 

“Mifepristone is scientifically proven to be safe and effective after more than 20 years of use in the United States. Our fight for reproductive freedom must continue,” Ferguson said.

After a lower-court ruling in Texas sent the mifepristone case on its trajectory to the Supreme Court, Ferguson’s office introduced a separate lawsuit in federal court in the Eastern District of Washington. Ferguson and his staff sued the FDA to keep additional restrictions on the drug from going into effect, and made the case that existing limitations on the pill — some of the most restrictive in the country, and only applied to 60 drugs — are “unnecessary and unlawful.”

Ahead of the Supreme Court decision, a judge’s ruling in the Washington case clarified that mifepristone would remain legal and accessible in Washington, where nearly 60% of abortions are medication abortions using mifepristone and a second drug, misoprostol. Ferguson’s office also joined a coalition of other states in filing briefs pushing for the Supreme Court to hear an appeal to the Texas judge’s decision and against restrictions on mifepristone.

While Northwest reproductive rights advocates and elected officials framed the ruling as a victory Thursday, they also raised the possibility that mifepristone will continue to be a target without the backstop of Roe v. Wade, the landmark case that was overturned in 2022 by the Supreme Court. 

“While we are of course relieved to see this result, the truth is that we should’ve never gotten to this point,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest Hawai‘i, Alaska, Indiana, Kentucky, in a statement. “From the beginning, this was a politically-motivated case that completely disregards years of evidence that Mifepristone is safe and effective. Maintaining access to this FDA-approved medication was the bare minimum.”

U.S. Sen. Patty Murray, who spearheaded an effort among Congressional Democrats to file an amicus brief pushing for a stay of the initial Texas ruling last April, said in a statement that she expected more challenges to abortion pills to follow: “For now, mifepristone remains accessible where abortion is legal, but Americans need to understand that the nationwide threat to medication abortion has not gone away—far from it.”

There is validity to these concerns. The Supreme Court decision is clear that the anti-abortion activists behind the Alliance for Hippocratic Medicine “lack standing to challenge the FDA’s actions,” as Justice Brett Kavanaugh wrote in the court’s unanimous opinion. Kavanaugh explained that the plaintiffs involved had no direct experience with mifepristone and transparently wanted the FDA to limit access to the drug for others, and “a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”

Because three other states — Idaho, Kansas and Missouri — signed onto the case at the lower court in Texas, it’s possible the issue could be brought again before a state or federal court. Additionally, state-level legislative efforts to interfere with access to abortion pills specifically are underway in Louisiana and Arkansas. If successful, they’ll likely be replicated elsewhere.

“The ideological extremism by the plaintiffs in this case, who were represented by a designated hate group, should never have made it this far to begin with,” said Murray of this dynamic. “But make no mistake: this fight is not over.”

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