Pharmacies face lawsuits and protests if they dispense abortion pills
Abigail Adcox
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The country’s largest pharmaceutical chains are facing pushback over their intention to dispense a key abortion medication in some states as dozens of Republican state officials threaten legal action and anti-abortion groups protest outside brick-and-mortar locations.
Anti-abortion group Students for Life of America and faith-based 40 Days for Life have organized protests outside of local Walgreens and CVS locations in recent weeks in response to the companies’ plans to seek approval to dispense mifepristone, which is used with misoprostol to induce abortion. Over two dozen Republican attorneys general have said the pharmacies could face legal consequences if they dispense abortion medication by mail in their states.
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“[Pharmacies] are taking affirmative steps to become an abortion business, which they have not been up to this point,” said Katie Glenn Daniel, state policy director for Susan B. Anthony Pro-Life America. “We think they’re realizing that right now, as they find out how they’re going to have to change their businesses to obtain certification and how much liability they expose themselves to really unnecessarily by making these business changes.”
Students for Life of America organized a demonstration outside Walgreens headquarters in Illinois over its intent to dispense the abortion medication last month. 40 Days for Life has also held similar protests outside CVS and Walgreens locations in several states.
The Republican attorneys general of Missouri, Indiana, Iowa, Kentucky, South Carolina, Texas, Utah, West Virginia, and other states sent messages to CVS and Walgreens in recent months warning the companies could be in violation of state laws restricting abortions and federal laws if they dispense the abortion medication in their states.
It follows the Food and Drug Administration clearing the way to allow certified retail pharmacies to dispense abortion medication to women with a prescription from a qualified health provider earlier this year. Previously, the FDA had only allowed abortion medication to be prescribed and dispensed by clinics, medical offices, hospitals, or under the supervision of a certified health provider.
“They want to make sure that both of these pharmacy chains, who I’m quite certain never felt they would be at the crux of such a national debate over the issue of access to abortion pills, that these organizations know precisely what the law is,” said Sarah Parshall Perry, a senior legal fellow at the conservative think tank the Heritage Foundation.
The attorneys general have argued that federal law prohibits sending or receiving abortion medication by mail, referring to the Comstock Act, an 1873 law that initially restricted people from mailing anything related to contraception or abortion. In 1971, the contraception clause in the law was removed, and the abortion aspects of the law have been unenforced during the almost five decades Roe v. Wade was in place. Last June, the Supreme Court overturned the landmark decision, saying there is no constitutional right to an abortion.
“Abortion pills have to get into a state somewhere, and they have to get out of a state somewhere,” said Perry. “Use of the mail by either the manufacturer or the distributor, the shipper, the recipient, the pharmacy, all of these are very clearly against the U.S. criminal code. So that is the overarching consideration for all of this. But then in addition, this particular group of Republican attorneys general recognize that within their states, there are also state restrictions on abortions.”
The Biden administration has pushed back on assertions that the federal law prohibits shipping abortion medication to states that have restrictions on terminating a pregnancy. The Department of Justice Office of Legal Counsel argued in a legal analysis that the Comstock Act would only apply if a sender’s intent in mailing abortion medication were to commit an illegal act.
“The mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully,” the Department of Justice wrote.
Walgreens has heeded pressure from anti-abortion groups and attorneys general not to dispense the abortion medication in some states, announcing this month that they do not intend to seek certification to dispense the medication in several states where abortions and the drug remain legal, including Alaska, Iowa, Kansas, and Montana.
“We have responded to the state attorneys general letter to Walgreens dated February 1 by indicating we will not dispense Mifepristone in their respective states,” a Walgreens spokesperson told the Washington Examiner in a statement earlier this month. “We are not distributing Mifepristone at this time. We intend to be a certified pharmacy and will distribute Mifepristone only in those jurisdictions where it is legal and operationally feasible.”
Other pharmaceutical chains, including CVS and Rite Aid, have said they intend to seek certification to dispense the abortion medication where it is legally permitted but have not clarified which states. At least 15 states have laws that restrict access to abortion medication, such as requiring that a patient visit a physician in person, according to the Guttmacher Institute. Last week, Wyoming became the first state to explicitly ban the use of abortion medication after Gov. Mark Gordon (R) signed a bill prohibiting any physician or person from prescribing or distributing abortion medication with few exceptions.
Democratic lawmakers led by Sens. Patty Murray (D-WA) and Debbie Stabenow (D-MI) have urged Walgreens, Albertsons, Costco, Kroger, Walmart, CVS, and Rite Aid to clarify their plans toward providing abortion medication.
Heat from anti-abortion groups and GOP attorneys general over pharmaceutical chains’ plans to dispense the abortion medication comes as a federal lawsuit out of Texas seeks to revoke the FDA’s approval of mifepristone. U.S. District Judge Matthew Kacsmaryk, assigned to the case, held a court hearing last week where he appeared receptive to claims that the drug wasn’t vetted properly when it was approved in 2000. The FDA and several health organizations have strongly disputed these claims.
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Kacsmaryk said he intends to issue an “order and opinion as soon as possible,” which, depending on the ruling, could impact access to the abortion medication nationwide.