Walgreens confirmed on March 2 that it will not distribute abortion pills in numerous states—including to some states where abortion is legal—after Republican attorneys general (AG) in 21 states told the company that it risked breaking federal law should it do so, Politico first reported.
Walgreens, the second-largest pharmacy chain in the United States, made the decision after receiving a letter from Republican Missouri AG Andrew Bailey on Feb. 1,
Other than Missouri, attorneys general from 19 other Republican-led states—Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia—also signed the letter.
Kansas AG Kris Kobach sent his own letter to Walgreens five days later.
Bailey’s letter specifically addressed the states’ opposition to Walgreen’s intent to participate in the growing abortion pills by mail business practice that expands abortion access nationwide.
Walgreens told Politico that it has responded to “all the officials” in writing, “assuring them that they will not dispense abortion pills either by mail or at their brick-and-mortar locations in those states,” even though the letter only took issue with the pills’ distribution through the mail.
In its response letter to each of the states, Walgreens emphasized that it is not yet dispensing the abortion pill, called mifepristone, “in any of its locations.” However, it still intends to become a “certified pharmacy” under the U.S. Food and Drug Administration’s (FDA) program and, in fact, is “working through the certification process.”
“While Walgreens has publicly expressed its intent [to become a certified pharmacy] … the company has made clear that it would do so consistent with all applicable laws and as a result would not be able to dispense Mifepristone in all locations,” Walgreens wrote.
The pharmacy chain went on to say that it will not “dispense Mifepristone within your state” or “ship Mifepristone into your state from any of our pharmacies.”
These states include several where abortion—both medicine- and procedure-induced—is legal, including Alaska, Iowa, Kansas, and Montana, Politico reported.
Pro-life groups applauded Walgreens’ response.
Students for Life spokesperson Kristi Hamrick told Politico, “This response indicates that pro-life concerns are being heard and that corporations are not rushing to take over the abortion business but are proceeding cautiously.”
Why the Letter Was Written
In January, the nation’s largest pharmacy chains, including Walgreens, announced that they planned to seek FDA-mandated certification to distribute mifepristone in its brick-and-mortar locations and through the mail after the agency updated its rules, loosening restrictions on where and how the drug could be dispensed, Bloomberg reported.
Previously, women seeking the drug could only do so in person at “certified” health care facilities, according to the FDA.
The new rules, updated on Jan. 4, removed the “in-person dispensing requirement,” allowing a patient with a prescription from a “certified prescriber” to get the drug through the mail or pick it up at a “certified pharmacy.”
An additional impetus for the letter was a 21-page opinion that the U.S. Department of Justice issued to the U.S. Postal Service in late December 2022, advising that, under federal law, the postal service can legally deliver abortion pills through the mail.
The attorneys general disagreed, arguing in the letter that the Biden administration has misrepresented federal law, saying that “federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion.'”
The attorneys general went on to explain that the Biden administration “encouraged the U.S. Postal Service to disregard this plain text,” and they threatened legal action if Walgreens moves forward with its intention to mail the drug, adding, “we reject the Biden administration’s bizarre interpretation, and we expect courts will as well. Courts do not lightly ignore the plain text of statutes.”
The letter further explained that not only does federal law prohibit using the mail to send and receive abortion drugs, but so do many state laws. Additionally, the sale of abortion pills through the mail may violate some states’ abortion laws.
Kansas AG Kobach, a Republican, sent a similar letter to Walgreens, informing the retail chain that its plan “to provide abortifacients through its mail-order pharmacy business … is illegal, and Kansas will not hesitate to enforce the law.”
Mifepristone
The FDA approved mifepristone in September 2000 for a medicine-induced termination of pregnancy through seven weeks. In 2016, the timeframe was extended to 10 weeks.
Mifepristone is a drug that blocks progesterone, a hormone needed for pregnancy to continue. It is then followed by a second drug, misoprostol, taken 24 to 48 hours later that triggers the uterus to contract and expel the fetus. Together, the drugs are known as “the abortion pill.”
According to the Guttmacher Institute, the abortion pill accounted for 54 percent of all U.S. abortions in 2022. That number jumped significantly from 39 percent in 2017.
“While the use of medication abortion has been steadily increasing since it was first approved, the COVID-19 pandemic likely accelerated the trend,” Guttmacher stated in its report.
Previous FDA protocol required the drug to be administered in person at “certified” clinics. In April 2021, restrictions were temporarily loosened due to the COVID-19 pandemic, enabling women seeking abortion to consult health care providers by telemedicine and receive the pills by mail.
“Since the start of the pandemic in early 2020, there has been increased attention on the benefits of telehealth—and abortion has very much been a part of that conversation,” Guttmacher said.
In December 2021, the FDA announced its intention to make the temporary changes permanent, and in early January 2023, the FDA announced the new, permanent rules.