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California Gov. Gavin Newsom this week made what could either be considered a bold pledge or a shameless grandstand: He announced that the state was reevaluating the planned renewal of a contract with Walgreens, after the pharmacy chain assured 20 Republican attorneys general that it would not dispense Mifepristone in their states, including some states where abortion remains legal.
“California will not stand by as corporations cave to extremists and cut off critical access to reproductive care and freedom,” the California governor said in a statement. Walgreens had received about $54 million dollars under the contract to date, for providing prescription drugs for California’s prisons.
As calls to boycott the pharmacy chain have grown, Newsom isn’t the first or last Democratic heavyweight to express disappointment with the company over its capitulation to the GOP AGs. A few days earlier, the CEO of Walgreens, which is headquartered in Illinois, was summoned to Gov. J.B. Pritzker’s office to discuss their plans, and on Thursday, Gov. Kathy Hochul of New York dispatched a warning letter of her own.
Privately, representatives for Walgreens have complained that, for simply promising to abide by state and federal laws, they are unfairly bearing the brunt of public outrage about the substance of those laws. And in a statement responding to California’s decision (which Walgreens said was based on “false and misleading information”) the company sniped: “Walgreens is facing the same circumstances as all retail pharmacies, and no other retail pharmacies have said that they would approach this situation differently, so it’s unclear where this contract would now be moved.”
But experts are challenging Walgreens’ position, asserting that the company’s interpretation of state and federal law is misguided — and that the company is being needlessly restrictive with a medication that is critical not only for abortion, but for the treatment of miscarriages too.
Walgreens is the second-largest pharmacy chain in the country. The largest, CVS, has remained quiet as outrage has continued to build. CVS did not respond to multiple requests for comment from Rolling Stone, nor did Walmart and Costco. (The country’s third largest drugstore group, Health Mart, a franchise program, told Rolling Stone that each owner-operator would choose whether to dispense mifepristone on their own. “Health Mart independent community pharmacy operators make their own independent business decisions.”)
If those companies are still evaluating how they will respond to threats from Republican attorneys general, Guttmacher Institute’s Elizabeth Nash, the foremost expert on state abortion laws, says they are likely to find they have more leeway than Walgreens claims it has.
The 21 states where Walgreens has said it will not dispense mifepristone fall into a few different categories, she explains. Some have banned abortion completely, some have laws that require a doctor to dispense the drug in person, some have onerous requirements that would simply make it impractical for a pharmacy to distribute it. And then there are some states, she says, that have none of the above, where Walgreens is also saying it will not dispense Mifepristone.
Alaska, Nash says, is one example: It has no ban on telemedicine, no requirement that the abortion pill be dispensed in-person, no waiting period and no gestational limit. Montana, she says, is another. A representative for Walgreens, reached for comment, pointed to language in statutes in Alaska and Montana that say an abortion can only be provided by a licensed physician, but Nash points out that that doesn’t create a meaningful obstacle, since a physician would be the one writing a prescription for the drug in any case.
The details, she says, matter very much. “Alaska, Montana — they’re both rural states where pharmacy access is could be very important,” Nash says. Both states, she also notes, have higher courts that have consistently protected abortion access. With future fights over access to birth control and gender-affirming care looming in the near future, she adds, the decision creates a troubling precedent.
“They needed to take more time to think through,” Nash says. “There are definitely states where they could be providing Mifepristone, and now they won’t be.”
One manufacturer of mifepristone — GenBioPro — and their lawyers, meanwhile, argue that the state restrictions Walgreens has cited are functionally irrelevant because courts have consistently ruled that only the federal government has the power to regulate drugs. “Was the letter intended to intimidate pharmacies? Yes. Has it done its job? It appears so,” says Skye Perryman, president of Democracy Forward and legal counsel for GenBioPro. “But the theory is wrong on the law.”
GenBioPro is currently suing the state of West Virginia over this issue, arguing that states cannot ban or regulate a drug in a way that is inconsistent with federal policy. Courts have reaffirmed that finding as recently as 2014 when Massachusetts tried to ban a potent opioid, only to be firmly rebuked by a federal judge, who declared doing so “would undermine the FDA’s ability to make drugs available to promote and protect the public health.”
GenBioPro is now considering whether it could utilize a similar argument in legal action against the Republican AGs working to prevent distribution of mifepristone in their states. In a statement to Rolling Stone, CEO Evan Masingill said the company “is reviewing the actions of state AGs and will continue to utilize the legal process to vindicate access to this evidence-based medication.”
The jostling between the Biden administration, pharmacies, GOP AGs, democratic governors, and drug companies is especially frustrating for people in states like Kansas who, just a few months ago, went to the polls and voted overwhelmingly to protect abortion access — only to see their elected officials working to shut that access down.
“The message in August was very clear — 19 points clear,” Ashley All, who helped spearhead the campaign against Kansas’ abortion ban with the group Kansans for Constitutional Freedom, said in a statement. “Kansans voted ‘No’ on giving politicians more power to regulate abortion. Yet at every turn, politicians have ignored the will of voters and inserted themselves into the private medical decisions of Kansas citizens.”
Kansas Attorney General Kris Kobach, who has been at the forefront of the crusade against pharmacies, “is interfering in Kansans private medical care, deciding which legal prescriptions can be sent to Kansans, and threatening pharmacists,” All said. “Last time I checked, he is not a medical doctor or a pharmacist.”
And that gets at exactly the problem, says Ushma Upadhyay, professor in the Department of Obstetrics, Gynecology, and Reproductive Sciences at UCSF, and the co-director of the UCGHI Center for Gender and Health Justice: None of the state or federal restrictions on abortion — including rules around pharmacy certification to dispense Mifepristone that will be instituted under the Biden administration’s revamped policy — are rooted in science. “Mifepristone is extremely safe — it has an over 99 percent safety rating,” Upadhyay says. “We looked at 11,000 medication abortions and found a serious complication rate of less than a third of 1 percent.”
While she welcomes the Biden administration’s expansion of mifepristone to retail pharmacies, she says that the additional certification pharmacies must obtain to dispense the drug is an unnecessary burden for a drug that is not only used for abortion, but “very commonly prescribed to patients to treat miscarriage.” For that reason, she says, pharmacies — even in states with hostile attorneys general — must commit to dispensing the drug: “Walgreens or pharmacists in all 20 states should carry mifepristone now that they’re legally able to.”