In Certain States Retail Pharmacies Face Difficult Balancing Act Relating to the Sale of Mifepristone

On March 3, 2023, Walgreens, the second-largest pharmacy chain in the United States, announced that it will no longer be distributing the abortion medication mifepristone, in 21 states including Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia in response to letters signed by 21 state attorneys general warning that the company could face legal consequences for the sale of abortion pills in their respective states. Mifepristone is the first pill in a two-drug medication abortion regimen.  Walgreens’ response has resulted in controversy on both sides of the aisle and provides a glimpse into the drugstore industry's attempts to deal with the chaotic cultural and legal state of the abortion debate.

The February 1, 2023 letter signed by 21 attorneys general (including in Kansas, Iowa, Montana and Alaska, states where abortion is currently legal, but where enacted or proposed laws create restrictions to the provision of abortion pills) cites the Comstock Act (previously discussed in our Jan. 4 alert) as a prohibition to sell or receive any drug used for abortion through the mail. The Department of Justice previously issued guidance on the matter on January 3, 2023, stating that the Comstock Act does not prohibit the mailing of medication abortion pills where the sender lacks the intent that the recipient will use them unlawfully. However, the letter disagrees with this assertion and states such an opinion would fail under the “slightest amount of scrutiny.”

In response to Walgreens' decision, the California Department of General Services, at the behest of Governor Gavin Newsom, formally withdrew the planned renewal of a multi-million-dollar contract with Walgreens to procure pharmacy prescription drugs, primarily used by the California Department of Corrections and Rehabilitation and its correctional health care system.  While other large retail pharmacies such as Walmart, Rite Aid, Costco and CVS have yet to take such determinative action, with legal battles occurring in courts and legislatures nationwide, including a lawsuit currently being heard in the Northern District of Texas that could result in mifepristone being taken off the market entirely, these retailers will be forced to walk a fine line in selling permitted medicines and following state law.  The issue remains whether states that prohibit abortion will endeavor to prosecute retail pharmacies that sell mifepristone--or seek to obtain information about the prescribing providers.

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.