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A group of 20 Republican attorneys general warned CVS and Walgreens on Wednesday that they could face legal consequences if they begin mailing and distributing abortion pills.
The big picture: Nearly a month after the FDA made a regulatory change allowing retail pharmacies to offer abortion pills, the attorneys general told the big pharmacy chains that selling mifepristone — which is used in medication abortions — is "unsafe and illegal," per a press release.
What they're saying: "[W]e are not dispensing mifepristone at this time," said Walgreens spokesperson Fraser Engerman in an emailed statement.
- "We intend to become a certified pharmacy under the 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 did not immediately respond to a request for comment.
Details: A warning letter led by Missouri Attorney General Andrew Bailey states that "many people are not aware that federal law expressly prohibits using the mail to sent or receive any drug that will 'be used or applied for producing abortion.'"
- The attorneys general specifically are referring to the Comstock Act, an 1873 law that made it illegal to send what at the time was deemed to be pornographic publications through the mail. The law also contains language prohibiting the mailing of "any article or thing designed or intended for the prevention of conception or procuring of an abortion."
- "Obviously, a federal criminal law — especially one that is, as here, enforceable through a private right of action — deserves serious contemplation," the attorneys general said in the letter.
- The letter also noted that certain state laws prohibit the mailing and distribution of abortion pills. However, CVS and Walgreens have already acknowledged that they intend to provide mifepristone where it is legally possible to do so.
State of play: The Justice Department clarified in early January 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 the DOJ's interpretation in the letter, saying that "the text, not the Biden administration's view, is what governs."
- They warned CVS and Walgreens that "consequences for accepting the Biden administration's reading could come far sooner," adding that civil litigation against the companies could be brought by state attorneys general or private citizens.
Zoom out: At least 19 states have banned or severely restricted the use of telemedicine to access abortion pills, and instead require that patient get the medications from medical facilities in person.
- There are currently two lawsuits that argue that states cannot regulate or restrict drugs that are FDA-approved. One lawsuit filed in North Carolina targets the state's restrictions on abortion pills and the another, filed in West Virginia, challenges the state's abortion ban.
- These cases could potentially set a precedent that FDA policy preempts state law.
- On the other hand, another lawsuit filed by anti-abortion groups argues that the agency did not properly approve mifepristone for terminating pregnancies.
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