Other LanguagesOLYMPIA — Attorney General Bob Ferguson released the following statement today after the U.S. Supreme Court released its decision in Food & Drug Administration v. Alliance for Hippocratic Medicine, a case challenging the FDA’s approval of the abortion medication mifepristone:
“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. 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. In our case in federal court in the Eastern District of Washington, we argue that even the current restrictions on mifepristone are unnecessary and unlawful. Our case already successfully nullified for Washingtonians the radical lower-court ruling in Texas that led to today’s Supreme Court decision. Attacks on reproductive freedom will continue, but we will continue to fight for the right to access mifepristone in Washington.”
Background on challenges regarding mifepristone
In April of 2023, a federal judge in Texas overturned the FDA’s approval of mifepristone. On the same day, a federal judge in Spokane agreed with Ferguson and barred the FDA from doing anything to reduce the availability of the medication abortion drug mifepristone in Washington, 16 other states and the District of Columbia. In Texas, a group of doctors had sued to block the original approval of mifepristone. In Washington, Ferguson led the coalition of states in a lawsuit to expand access to the drug.
Nearly 60% of the abortions in Washington state are medication abortions.
Of the more than 20,000 drugs approved by the FDA, only 60 — including mifepristone — have extra restrictions known as a Risk Evaluation & Mitigation Strategy, or REMS. Mandatory REMS restrictions, known as Elements to Assure Safe Use (ETASU), are supposed to be reserved for inherently dangerous drugs, including opioids like fentanyl, and high-dose sedatives used by psychiatric patients, among others.
The FDA-approved regimen for medication abortion involves a dose of mifepristone, followed by a second drug, misoprostol. To prescribe mifepristone, health care providers must be specially certified by the drug distributor. To receive the prescription, patients and providers must sign an agreement that certifies the patient has decided to take the drugs to end their pregnancy — regardless of whether they are seeking an abortion or are being treated for a miscarriage, which is another common use for mifepristone. A copy of this agreement must be included in the patient’s medical records. To dispense mifepristone, pharmacies must also be specially certified with the drug distributor before they can fill a prescription — a requirement that does not apply to any other drug.
Ferguson’s preliminary injunction remained in place as the Texas case worked its way up to the U.S. Supreme Court. Before that case reached the justices, a federal appeals court overturned some of the Texas judge’s ruling, but ordered the FDA to re-impose the more burdensome REMS restrictions that were in place prior to 2016. Though it left mifepristone’s approval in place, that ruling severely restricted access to mifepristone in states not covered by Ferguson’s preliminary injunction.
Ferguson joined other states to file briefs with the Supreme Court urging it to hear the appeal of lower court rulings, and arguing against restricting mifepristone when it accepted the case.
Ferguson’s preliminary injunction has remained in place, and proceedings in the Washington court have continued, while the Texas case was pending in the Supreme Court.
Solicitor General Noah Purcell, First Assistant Attorney General Kristin Beneski, Wing Luke Civil Rights Division Chief Colleen Melody, Deputy Solicitor General Tera Heintz and Assistant Attorneys General Lauryn Fraas and Andrew Hughes, Paralegal Jennah Williams and Legal Assistant Jessica Buswell are handling Washington’s case.
Ferguson has also produced a “know your rights” brochure and a specific form for Washingtonians to file complaints about violations to their reproductive rights. The brochure, available on the Attorney General’s website, is a guide to Washington state law’s protections for abortion and contraception access.
Anyone with complaints or concerns about violations of reproductive rights under state law is encouraged to file a complaint with the Attorney General’s Office.
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