A month after the two largest pharmacy chains in the United States announced their efforts to become certified to dispense abortion pills by mail, in accordance with a new Food and Drug Administration rule, the Republican attorneys general of 20 states on Wednesday warned the companies that providing the medications by mail in their states could result in legal action against them.
In a letter co-signed by 19 attorneys general from states that have banned or attempted to ban abortion since the U.S. Supreme Court overturned Roe v. Wade last year, Attorney General Andrew Bailey of Missouri wrote to officials at Walgreens and CVS and suggested that they could face litigation if they follow new regulatory guidelines introduced by the FDA in early January.
The agency announced last month that retail drugstores can dispense mifepristone and misoprostol — drugs used for medication abortions, which accounted for 51% of abortions in 2020 according to the Centers for Disease Control and Prevention. The rule reversed strict regulations that for decades required patients to obtain mifepristone only at health clinics, which medical experts have long said were unnecessarily limited people’s access to the pills and were rooted in politics rather than science.
Both pharmacies said soon after the rule was changed that they were beginning the process of becoming certified to send abortion pills to patients who have a prescription for them from a healthcare provider, in states where abortion care is legal.
The attorneys general who signed Bailey’s letter on Wednesday claimed the companies will be in violation “not only of federal law, but also of the laws of the various states” if they follow the FDA guidance.
Two states — Indiana and Texas — have imposed bans on medication abortions starting at a certain point in pregnancy, while 18 states require patients to be in the physical presence of a prescribing clinician to obtain mifepristone and misoprostol — restrictions that run afoul of the new federal regulations.
A manufacturer of mifepristone filed a lawsuit late last month to overturn West Virginia’s abortion ban, arguing that the FDA’s approval of the drug preempts the state’s law.
The Biden administration also issued a legal opinion last month saying the U.S. Postal Service can mail abortion pills to states with abortion bans or severe restrictions, if the sender does not intend to break the law.
Of the 20 states whose attorneys general signed the letter sent Wednesday to CVS and Walgreens, 10 — Alaska, Florida, Georgia, Indiana, Iowa, Montana, North Dakota, Ohio, South Carolina, and Utah — still permit abortion care. Several of the states have attempted to ban the procedure but the proposals have been blocked.
Despite this, the attorneys general suggested that sending abortion pills to patients in their states will violate their laws.
“These state laws reflect not only our commitment to protecting the lives and dignity of children, but also of women,” wrote Bailey. “We emphasize that it is our responsibility as state attorneys general to uphold the law and protect the health, safety, and well-being of women and unborn children in our states.”
The right-wing attorneys general “are in the wrong here,” said women’s rights group UltraViolet.
The letter comes just over a week after South Dakota’s Republican governor, Kristi Noem, joined state Attorney General Marty Jackley in threatening the state’s pharmacists with felony charges if they distribute abortion pills.
If the pharmacies cave to the demands of the Republicans, said author and advocate Jessica Valenti, people in the 20 states in question “will no longer have access to one of the most common forms of miscarriage treatment.”
“If abortion medication isn’t available — if pharmacies literally don’t carry it, or only have limited quantities available — we will see unprecedented suffering,” she said.