CVS and Walgreens have both recently announced that they are seeking FDA certification to use the mail to distribute mifepristone, the first pill used in a 2-drug abortion.
A coalition of 20 state attorneys have sent letters to CVS and Walgreens, informing the pharmacy chains that their announced plan to distribute abortion pills via mail is illegal.1
CVS and Walgreens have both recently announced that they are seeking FDA certification to use the mail to distribute mifepristone, the first pill used in a 2-drug medication abortion. The FDA announced in January that retail pharmacies would be allowed to distribute the pills under a new regulatory change and Risk Evaluation and Mitigation Strategies (REMS) program.2
The letter states that “Federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion,’” according to a press release from Missouri Attorney General Andrew Bailey, who leads the coalition.1
Attorney General Bailey of Missouri authored the letter and was joined by the attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia.1
“My office is doing everything in its power to inform these companies of the law, with the promise that we will use every tool at our disposal to uphold the law if broken,” Bailey said in the press release.1
Despite the FDA regulatory change and REMS program, confusion has continued about how and where pharmacies can distribute mifepristone. The previous FDA rules required patients to obtain the pill in-person at clinics, hospitals, and from other health care providers, and only a few mail order pharmacies could distribute it.2
“Now, that’s changed,” explained Ron Lanton III, Esq., in an interview with Pharmacy Times. “Patients will still need a prescription from the certified health care provider, but any pharmacy that agrees to accept these terms under the REMS program—and abide by the other criteria…—they can dispense those pills in their stores or by mail order.”2
Lanton noted, however, that some states were widely anticipated to protest this move, particularly states that have restricted abortions since the Supreme Court ruling in June 2022 that overturned Roe v. Wade and Planned Parenthood v. Casey. Lanton said these debates would likely come down to states’ arguments under the 10th Amendment versus the federal government and the Supremacy Clause.2
The letter issued by the attorneys general furthers this argument, saying that the Biden Administration’s endorsement of distributing abortion pills by mail violates state laws.1
“In Missouri, for example, it is unlawful to distribute an abortion drug through the mail,” the letter notes. “Missouri law also prohibits unfair or deceptive trade practices—and trade practices that violate federal law necessarily are unfair and deceptive.”1
CVS and Walgreens have not yet responded to the letter. According to reporting by the New York Times, however, both companies have stated that they plan to pursue FDA certification to distribute mifepristone in accordance with federal and state laws.3
Pharmacy associations have supported the move by the FDA, saying that it empowers pharmacists to provide greater care to patients. For example, a press release from the American Pharmacists Association noted that the FDA action does not change current restrictions on access to mifepristone in states that have banned or restricted abortion access. However, the press release added that the US Postal Service has confirmed that current law supports the delivery of mifepristone and misoprostol through the mail.4
These debates are likely to continue, Lanton said, likely ending up in various legal arguments throughout the states.
“That’s really what it’s going to come down to, is how the states [are] going to approach the issue,” Lanton said. “What are they going to allow the Board of Medicine to do? And that’s going to set off the chain reaction of whether a pharmacy can actually come in and dispense.”2