Under a new FDA rule, retail pharmacies are now allowed to offer abortion medication. However, 20 Republican attorneys general (AGs) have warned that mailing abortion medication in their states is both "unsafe and illegal."

Retail pharmacies to offer abortion medication

Last month, FDA finalized a rule that would allow retail pharmacies, including large chains and mail-order companies, to offer mifepristone, a medication that blocks a hormone necessary for pregnancies to develop and the first drug in a two-part medication abortion regimen. Previously, the drug could only be dispensed by clinics, medical offices, hospitals, or under the supervision of a certified health provider.

During the pandemic, FDA expanded access to the drug by allowing providers to prescribe it through telehealth and allowing certified mail-order pharmacies to send it to patients. In December 2021, the agency moved to make this change permanent.

Under the new rule, retail pharmacies would be able to offer abortion medication after going through a certification process. Patients will still need to obtain a prescription from a certified health provider and complete a consent form, but any pharmacy that becomes certified will be able to offer the drug.

After the announcement, both Walgreens and CVS said they will begin offering abortion medication after going through the necessary legal requirements.

"We are working through the registration, necessary training of our pharmacists, as well as evaluating our pharmacy network in terms of where we normally dispense products that have extra FDA requirements and will dispense these consistent with federal and state laws," a spokesperson for Walgreens said. Similarly, a spokesperson for CVS said the company plans to seek certification to dispense mifepristone "where legally permissible."

Separately, the Department of Justice (DOJ) cleared the U.S. Postal Service to deliver abortion medication to states that have strict abortion laws. DOJ also offered limited assurances that a federal law on the issue will not be used to criminally prosecute people who mail the medication.

"There are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law," said Christopher Schroeder, chief of DOJ’s Office of Legal Counsel. "Therefore, 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."

State AGs push back on expanded access plan

On Wednesday, 20 Republican state AGs sent a letter to both Walgreens and CVS, telling them that their plans to distribute abortion medication by mail are "both unsafe and illegal." The letters were signed by the AGs 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.

In the letter, the AGs argued that federal law prohibits anyone from sending or receiving a drug that will "be used or applied for production abortion"—directly opposing DOJ's earlier legal opinion on the matter. They also noted that several states, including Missouri, have laws that prohibit using mail to send or receive abortion medication.

"But the text, not the Biden administration's view, is what governs. And the Biden administration's opinion fails to stand up even to the slightest amount of scrutiny," the group wrote. "We reject the Biden administration's bizarre interpretation, and we expect courts will as well."

"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," they added. "Part of that responsibility includes ensuring that companies like yours are fully informed of the law so that harm does not come to our citizens."

In a statement, Walgreens spokesperson Fraser Engerman said that the company is not currently dispensing abortion medication, and "we fully understand that we may not be able to dispense Mifepristone in all locations if we are certified under [FDA's] program." (Oshin, The Hill, 2/1; Salter, Associated Press, 2/1; Kimball, CNBC, 2/2)