Walgreens on Friday announced it will not sell the abortion medication mifepristone in 21 states where Republican attorneys general (AGs) have threatened legal action if the pharmacy chain were to do so.

Background

In January, 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.

However, in February, 20 Republican state AGs sent a letter to 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 the Department of Justice'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."

The attorney general of Kansas sent Walgreens a separate letter in February indicating the state would not be distributing mifepristone and arguing that Walgreens' plan to distribute the medication in Kansas is "illegal."

Walgreens announces it won't sell mifepristone in 21 states

In response, Walgreens on Friday said it won't sell mifepristone in the 21 states that have threatened legal action, and that it is still taking steps to sell the drug in "jurisdictions where it is legal and operationally feasible."

Walgreens noted in a letter responding to the Kansas attorney general that, "At this time, we are working through the certification process" and are not yet distributing mifepristone anywhere.

"This is a very complex and in flux area of the law, and we are taking that into account as we seek certification," said Fraser Engerman, a spokesperson for Walgreens.

The New York Times reports that Walgreens' decision doesn't affect misoprostol, the second pill in the abortion medication regimen, which is also used for several other medical conditions.

Melissa Fowler, chief program officer at the National Abortion Federation, expressed concerns over pharmacies like Walgreens not providing mifepristone in states where abortion pills are still legal, including Alaska, Iowa, Montana, and Kansas.

"When corporations give in to anti-abortion demands, patients are the ones who lose," Fowler said in a statement. "Too many patients have already lost access to essential health care due to state abortion bans and we should not allow abortion opponents to continue playing games with people's lives and denying them the care they need — especially in states where abortion remains legal. Every patient deserves to obtain abortion care in the time and place that's right for them." (Radde/McCammon, NPR, 3/4; Belluck, New York Times, 3/3; Fernando, USA Today, 3/3)