'Wrong on the law': Experts fact-check Walgreens’ claim its hands are tied on abortion pill

10 March 2023

Abortion law experts weighed in on Walgreens' recent decision to end the distribution of the highly sought after abortion pill, Mifepristone, calling the move "misguided," Rolling Stone reports.

Following a warning letter from Republican attorneys general threatening potential legal action, Walgreens decided to only distribute Mifepristone in states where the pill remains legal, according to Politico.

Rolling Stone reports:

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.

Rolling Stone also notes CVS, however, has sustained silence on the issue despite outrage, which Guttmacher Institute's abortion law expert, Elizabeth Nash suggests may be the smarter option.

"If those companies are still evaluating how they will respond to threats from Republican attorneys general," Nash said, "they are likely to find they have more leeway than Walgreens claims it has."

She asserted, "They needed to take more time to think through. There are definitely states where they could be providing Mifepristone, and now they won't be."

Rolling Stone reports:

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.

Nash named Alaska — which has not banned the pill — as one example. She said the state "has no ban on telemedicine, no requirement that the abortion pill be dispensed in-person, no waiting period and no gestational limit."

The abortion lawyer also mentioned Montana as a state similar to Alaska in its abortion policies. Both, she said, are "rural states where pharmacy access could be very important."

MSNBC reports:

Walgreens estimates 78% of Americans live within 5 miles of one of their stores. Walgreens' and CVS' sales of abortion pills, therefore, could be transformative for American women and girls. Many states have passed or are pushing to enact ever more restrictive abortion limits, or worse, full bans. But the legality of medication abortion has not changed — at least not yet, according to the FDA.

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 told Rolling Stone, "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."

She continued, "Mifepristone is extremely safe — it has an over 99 percent safety rating. We looked at 11,000 medication abortions and found a serious complication rate of less than a third of 1 percent."

Lawyers with GenBioPro, a mifepristone manufacturer, noted,"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."

President of Democracy Forward and GenBioPro legal counsel, Skye Perryman, suggested the warning letter from the GOP attorneys general is lawless.

"Was the letter intended to intimidate pharmacies? Yes. Has it done its job? It appears so," she said. "But the theory is wrong on the law."

Rolling Stone's full report is available at this link (subscription required). MSNBC's report is here.

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