Washington, Bob Ferguson lead lawsuit against Biden administration demanding increased access to abortion drug

Eastern Washington will be one of the settings for a legal showdown that will determine the future of access to a drug used to cause an abortion within the first 10 weeks of pregnancy.

Attorney General Bob Ferguson, along with officials in 10 other states, filed a complaint Thursday against the Biden administration, demanding that it abandon certain restrictions to prescribe one of two drugs taken to cause an abortion. The complaint argues that mifepristone, a drug that blocks a hormone necessary in carrying a pregnancy to term, is treated discriminatorily by the Food and Drug Administration, which continues to require women to have it prescribed by certain medical professionals along with completing forms that could fall into the hands of people targeting abortion providers with violence.

“The federal government has known for years that mifepristone is safe and effective,” Ferguson said in a statement announcing the filing Friday. “In the wake of the Supreme Court’s radical decision overturning Roe v. Wade, the FDA is now exposing doctors, pharmacists and patients to unnecessary risk. The FDA’s excessive restrictions on this important drug have no basis in medical science.”

The filing came just ahead of an anticipated ruling by a federal judge in Texas on a request to ban the drug. In that case, several physicians and anti-abortion organizations are suing the FDA, arguing it exceeded its authority in approving hormone-blocking drugs and “disregarded the substantial evidence that chemical abortion drugs cause more complications than even surgical abortions.”

The Washington Attorney General’s Office has filed a brief in that case supporting the FDA’s decision to permit mifepristone’s use for medical abortions. Ferguson’s office argues there’s “ample evidence that the drug is safer than Tylenol.”

“The reason this is so important right now is that there’s a crisis of access to abortion care in this country,” Kristin Beneski, first assistant attorney general in Washington, said in an interview Friday.

Mifepristone has been in use since 2000, often in combination with misoprostol, though mifepristone had been more heavily regulated. Doctors had to prescribe the drug in a clinical setting, and prescriptions had to be made in person while completing prescriber agreement forms.

The FDA lifted that in-person requirement during the COVID-19 pandemic, and made that decision permanent Jan. 3. However, the agency still requires certain clinicians to write the script with consent forms under what’s known as a risk evaluation and mitigation strategy.

Washington’s lawsuit, one of several filed in the wake of the Supreme Court’s decision last year overturning the right to an abortion, seeks to drop the more stringent requirements entirely. It also demonstrates the different paths individual states are taking after the federal right to an abortion was eliminated. Earlier this week, the drug store chain Walgreens announced it would not be providing mifepristone at its locations in Kansas after a threat of legal action from that state’s attorney general.

The Washington complaint argues the drug is safe, and that mifepristone should not be regulated on par with “fentanyl and other opioids, certain risky cancer drugs, and high-dose sedatives used for patients with psychosis.”

The risk evaluation strategy has only been employed for 60 drugs of the more than 20,000 the FDA has approved for use in the United States, the complaint argues. The Attorney General’s Office said 60% of the abortions carried out in Washington state are done so with prescriptions, rather than surgically.

“This case is about whether it is improper and discriminatory for FDA to relegate mifepristone – a medication that has been used over 5 million times with very low rates of complications, very high rates of efficacy, and which is critical to the reproductive rights of the Plaintiff States’ residents, as well as visitors who travel to the Plaintiff States to seek abortion care – to the very limited class of dangerous drugs that are subject to (the risk strategy),” the complaint says.

The complaint was filed in Eastern Washington because of its location between the West Side, where abortion services are more plentiful, and Idaho, which has a state ban on most abortions that went into place after the Supreme Court ruling.

“We think the harm caused by these restrictions is more pronounced in Eastern Washington, for a number of reasons,” Beneski said. She cited the lack of rural providers who are authorized by the FDA to prescribe the drug under the more stringent standards, fewer clinics providing abortion care in this part of the state and the influx of residents from Idaho and other states where abortion has been made illegal.

The attorney’s office has asked for a preliminary injunction preventing mifepristone from being taken off the market or anything else that could “cause the drug to become less available.” The case has been assigned to U.S. District Court Chief Judge Stanley Bastian, with a hearing scheduled for late March in Yakima.

The other states involved in the lawsuit are Oregon, Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont.