Law Professor: Texas abortion rulings could cause ‘chaos’

Apr 24, 2023, 8:38 AM | Updated: 9:59 am


FILE - This Sept. 22, 2010 file photo shows bottles of abortion pills at a clinic in Des Moines, Iowa. The Food and Drug Administration on Thursday, Dec. 16, 2021 loosened some restrictions on the pill mifepristone, allowing it to be dispensed by more pharmacies. (AP Photo/Charlie Neibergall, file)

(AP Photo/Charlie Neibergall, file)

The United States is awaiting the next move as courts across the country hear and decide what to do about access to the drug used in the most common method of abortion.

Friday’s U.S. Supreme Court decision preserved access to mifepristone, at least until other courts deal with the matter. But what kind of fallout could happen here in Washington state?

Doctors performing gender-affirming treatment, abortions on minors protected in WA

On the surface, Seattle University Family Law Professor Dierdre Bowen says our state’s access to the drug remains unchanged.

“Essentially, the status quo of the availability of mifepristone right now remains available because Washington state is a state where abortion is allowed,” Bowen said.

But it does not mean an end to a federal court case already underway here in Washington.

Earlier this year, Washington Attorney General Bob Ferguson and Oregon Attorney General Ellen Rosenblum, as well as attorneys general from 15 other jurisdictions, filed a brief in U.S. District Court for the Eastern District of Washington.

The states argue that mifepristone has been proven to be safe and effective and is critical to protecting the health, safety, and rights of their residents to have safe access to essential reproductive health care.

“That litigation will still proceed,” says Bowen. “The Supreme Court decision does not impact that litigation on mifepristone.”

But things get more complicated next month when the 5th Circuit Court of Appeals in New Orleans takes up the Texas judge’s ruling from April 7.

In that decision, he asserted the FDA’s original approval of mifepristone 23 years ago–and all the changes to that approval ever since were flawed.

Professor Bowen says if the circuit judge agrees with the Texas ruling, everything is up in the air here.

“What ends up happening there is we are back to the chaos of the original ruling between the Northern District of Texas and the Eastern District of Washington, where there are competing and contradictory rulings,” Bowen said.

“Whatever happens in Texas,” Bowen continued, “even if they affirm the Northern District of Texas, the case will go to the (U.S.) Supreme Court.”

For now, though, everything remains as it is. And, no matter what happens in other states, abortion is still legal in Washington, and state supplies of mifepristone already on hand may be used for abortions.

And what’s next? Bowen says the 5th Circuit Court takes up the Texas decision until May 17.

So far, no trial date has been set for the Eastern District of Washington’s challenge to FDA restrictions on the medication.

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Law Professor: Texas abortion rulings could cause ‘chaos’