Twenty Attorneys General Challenge the Mailing of Abortion Medication

On January 3, 2023, the Dobbs Resource Center featured a news update that the FDA issued guidance that allows retail pharmacies to carry and mail the prescription medication mifepristone pursuant to specific FDA rules. See, Shipman's earlier alert: FDA and Medical Abortions. Prior to the FDA’s policy change, mifepristone, an abortion medication, could be dispensed only by clinics, doctors and certain mail-order pharmacies. 

In addition, on January 4, 2023, the Dobbs Resource Center featured a news update regarding the U.S. Department of Justice Office of Legal Counsel’s ("DOJ’s") legal opinion to the U.S. Postal Service that the mailing of mifepristone and misoprostol (a drug used in combination with mifepristone for medical abortions) was legal even if mailed to a jurisdiction that significantly restricts abortion. See, Shipman's earlier alert: Mailing of Abortion Medication. 

On February 3, 2023 and in response to the DOJ’s legal opinion to the U.S. Postal Service, the attorneys general from the states of Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia, wrote letters to national pharmacy chains (CVS and Walgreens) stating that the opinion written by the DOJ referenced above was legally invalid when it opined that the Comstock Act does not prohibit the mailing of abortion medication. This letter from the aforementioned attorneys general included a warning that state attorneys general and private parties could turn to civil litigation to fulfill their responsibilities to protect the health and safety of women by prohibiting the mailing of abortion medication. 

In the meantime, battles are also being waged throughout the country to overturn abortion bans through constitutional means. By way of example, the South Carolina state Supreme Court found that the state’s constitution protected the right to abortion, overturning the state’s ban. Despite this decision, the South Carolina attorney general was one of the signatories to the letter to CVS and Walgreens. As state legislators reconvene, expect to see battles between those in favor of abortion and those against abortion continue, likely resulting in either stricter bans against or greater protections for the right to an abortion.

As new developments arise, we will continue to update our Dobbs Decision Resource Center.  In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.