OLYMPIA—On Thursday, June 13, the U.S. Supreme Court unanimously rejected the state of Texas’ challenge to change mifepristone’s legal status which would have restricted access to the abortion pill for millions of women. This is the court’s first major abortion-related ruling since overturning Roe v. Wade in 2022. 

“This case was never about science,” Representative Suzan DelBene (WA-01) released in a statement. “It was yet another effort by anti-abortion extremists – with the encouragement of House Republicans and the former president – to chip away at reproductive health care. Today’s decision is a win for Americans in all states who would have seen their rights infringed on if the Supreme Court had taken away access to this safe, effective medication.”

Washington Governor Jay Inslee ordered the Department of Corrections—who own a pharmaceutical license—to purchase a three-year supply of leading birth control medications including 30,000 doses of the generic mifepristone costing approximately $1.28 million, or about $42.50 a pill, back in March.

Today's Supreme Court's decision about mifepristone was based on a legal technicality, and future court cases are still possible. While access to this medication remains in place today, its future is far from certain. https://t.co/ce3qCyltWa

— Governor Jay Inslee (@GovInslee) June 13, 2024

The most common form of birth control in the country is a two-pill combination of mifepristone and misoprostal, both of which have been proven to be effective and safe, according to the Associated Press, and were approved by the FDA over 20 years ago. This two-pill combination can terminate a pregnancy up to seven weeks.

Anti-abortion groups have been beset on illegalizing the drug since it entered the market in 2000, first with a citizen petition in 2002 that was effectively rejected by the FDA the very same day it approved mifepristone to be used up to 10 weeks of pregnancy in 2016.

In 2019 the FDA approved generic versions of mifepristone allowing retailers to sell the drug, it be sent via mail, and sold through telehealth.

In 2022 Anti-abortion medical group, Hippocratic Medicine, filed a lawsuit in District Court in arguing that the drug’s approval was improper and should be reversed. The case was heard by U.S. District Court Judge Matthew Kacsmaryk, a former religious liberty lawyer who litigated against abortion and contraception access before being appointed to the bench by former President Donald Trump.

The Fifth Circuit of Appeals, in response to Judge Kacsmaryk’s challenge to the U.S. Department of Justice, ruled that mifepristone would remain on the market but revert to pre-2016 regulations during the court proceedings. However, the U.S. Supreme Court stepped in to say nothing about mifepristone would be changed during court proceedings.

On Thursday, U.S. Supreme Court Judge Brett Kavanaugh ruled that the plaintiffs of the lawsuit were not affected by the mifepristone’s accessibility on the market and therefore cannot simply sue because they might “desire to have the drug less available for others,” the Texas Tribune reported Thursday.

Additionally, Judge Kavanaugh ruled that doctors should not be able to change federal public health policies.

On June 24, 2022, the Supreme Court overturned the 50-year-old landmark Roe v. Wade decision, 6-3, that established a right of personal privacy protected by the Due Process Clause which include the right of a woman to determine whether to bear a child. Access to an abortion became a state issue, with some states implementing “trigger laws.”

About the Roe v. Wade decision

Roe v. Wade was a landmark decision in the Supreme Court when the court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction, striking down many state and federal laws, in 1973.

The decision involved the case of Norma McCorvey, better known by her pseudonym “Jane Roe” who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas where abortion was illegal. Her attorneys Sarah Weddington and Linda Coffee filed a lawsuit on her behalf in U.S. federal court against her local district attorney Henry Wade, alleging that Texas abortion laws were unconstitutional.

A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in McCorvey’s favor and Texas appealed to the U.S. Supreme Court.

In January of 1973, the Supreme Court issued a 7-2 decision ruling in McCorvey’s favor ruling that the Due Process Clause on the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose to have an abortion.

Roe v. Wade’s legal rulings were modified by the Supreme Court decision of Casey v. Planned Parenthood in 1992, holding that a woman’s right to choose an abortion is protected by the constitution but abandoning Roe’s trimester restrictions before fetus viability.

Abortion, Washington state and Initiative 120

On November 5, 1991, Washington voters approved initiative 120 (50.4% to 49.96%) declaring that a woman has a right to choose physician performed abortion prior to fetal viability (24 to 25 weeks into pregnancy).

The initiative made it Washington State public policy that:

• Every individual has the fundamental right to choose or refuse birth control;
• Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by this act;
• Except as specifically permitted by this act, the state shall not deny or interfere with a woman’s fundamental right to choose or refuse to have an abortion; and
• The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.

Based on current Washington law, the overturning of Roe v. Wade will have no immediate effect or impact. However, if the decision is overturned, a woman’s right to choose would not be protected by the U.S. Constitution, the state legislature in Washington would have the ability at any time to expand or prohibit the termination of a pregnancy.

Any action by the legislature would need to be signed by Governor Inslee, who holds veto power. In Washington, governors can veto entire bills and entire sections of legislation. A veto by the governor can be overturned with two-thirds vote by the legislature.