A coalition of 20 Republican attorneys general warned CVS and Walgreens that they could face legal consequences if they sell abortion pills.
While retail pharmacies are allowed to offer abortion pills under Food and Drug Administration (FDA) regulations, the attorneys general told the bigger chains in a letter that selling the drug mifepristone, which is used for medical abortions, is "unsafe and illegal."
"As Attorney General, it is my responsibility to enforce the laws as written, and that includes enforcing the very laws that protect Missouri's women and unborn children," Missouri Attorney General Andrew Bailey said in a statement.
"My Office is doing everything in its power to inform these companies of the law, with the promise that we will use every tool at our disposal to uphold the law if broken," he added.
The statement also makes the unfounded claims that "abortion pills impose far higher risks of complications compared to surgical abortions" and that "abortion pills, especially when distributed by mail, make coerced abortions much easier."
The FDA approved mifepristone more than 20 years ago as a safe and effective way to terminate early pregnancy. The FDA also confirmed that the pill is safer than surgical abortion and childbirth through scientific and real-world evidence. It is now the most widely used form of abortion in the U.S.
The letters to CVS and Walgreens quote federal law and state that "the text could not be clearer: 'every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.' And anyone who 'knowingly takes any such thing from the mails for the purpose of circulating' is guilty of a federal crime."
Walgreens spokesperson Fraser Engerman confirmed that their stores "are not dispensing mifepristone at this time" in a statement to Axios.
"We intend to become a certified pharmacy under the [FDA] program, however we fully understand that we may not be able to dispense mifepristone in all locations if we are certified under the program," Engerman added.
CVS has not yet commented on the matter, but both chains have said that they are applying to become certified with the FDA to dispense the prescription pill in states where it is legally possible to do so.
The warning letter from the attorneys general cites the Comstock Act, an 1873 law that made it illegal to send what was deemed to be pornographic publications through the mail. The law also included language that prohibits the mailing of "any article or thing designed or intended for the prevention of conception or procuring of an abortion."
However, the Department of Justice in January wrote that the Comstock Act does not prohibit the mailing of abortion pills "where the sender lacks the intent that the recipient of the drugs will use them unlawfully."
The attorneys general argued against what they called the DOJ's "bizarre" interpretation in the letter, writing that "the text, not the Biden administration's view, is what governs," and that the "consequences for accepting the Biden administration's reading could come far sooner," threatening civil litigation.
The letters to CVS and Walgreens were signed by the attorneys general of Missouri, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.
At least 19 states have severely restricted or outright banned the use of telemedicine to obtain abortion pills, instead requiring that patients come to a medical facility in person.
There are currently two open lawsuits in North Carolina and West Virginia arguing that states cannot regulate or restrict FDA-approved drugs. GenBioPro, one of the pill's manufacturers, has sued to overturn West Virginia's abortion ban, potentially setting a precedent that FDA policy preempts state law.
However, anti-abortion physicians have also filed a lawsuit against the FDA in Texas federal court, in order to completely pull mifepristone from the market. They cast doubt on the agency's approval process in 2000 for the pill, and questioned the rule changes that have been made since. They cite a recent FDA regulation that allows the drug to be mailed or dispensed by retail pharmacies and say there used to be greater layers of restrictions.
"They've loosened the requirements again, and again, and again," Denise Harle, senior counsel with Alliance Defending Freedom, the group suing the FDA, told NPR. "So now, mifepristone is being given to women who have never even seen a physician in person."
In response, the FDA said that the lawsuit is "extraordinary and unprecedented" and would harm the agency's power in the future. They noted in their defense that it would be highly unusual for the FDA to pull a drug from the market after more than two decades of widespread safe and effective use.
Jenny Ma, senior counsel with the Center for Reproductive Rights, told NPR that the outcome of the suit could cause a "nationwide ban on medication abortion" with an even greater impact than the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision last year, which overturned decades of abortion rights precedent.
"That decision left the decision about abortion up to the states," Ma explained, "but this would be one court in Texas deciding whether or not medication abortion could be allowed across this country, even in states that have protected abortion since the Dobbs decision."
The anti-abortion group is raising questions about the FDA's approval process in 2000 and some of the rule changes that have been made since then. They note that under President Biden, the FDA now allows mifepristone to be mailed or dispensed by retail pharmacies, while it used to be subject to more layers of restriction.
The decision is left to a Trump-appointed federal judge in Texas, Matthew Kacsmaryk, who has a longstanding relationship with religious right-wing groups, including working as an attorney with a conservative Texan Christian legal group.
"It's no accident that the complaint was filed in Amarillo," Elizabeth Sepper, a University of Texas at Austin law professor told NPR. "The way the district courts in Texas dole out cases makes it so that there are a few places where you pretty much know which judge you're going to get. So they know they have a very sympathetic ear."
If appeals are made for the case, it would go to the U.S. Court of Appeals for the Fifth Circuit, a conservative jurisdiction, and then potentially to the U.S. Supreme Court. And it's not just red states at risk for losing access to abortion, says Ma. If Kacsmaryk sides with the anti-abortion group, mifepristone would be completely pulled from the market nationwide, at least temporarily. The FDA could start another approval process, but that could take years.
"After Dobbs, it almost seemed like there were two Americas – where abortion access was allowed in some states and not in others," Ma told the outlet. "This would amount to a nationwide ban on medication abortion, and patients who seek this care would not be able to get this care from any pharmacy, or any prescriber or any provider."
