Since it merged with New York's Duane Reade more than a decade ago, Walgreens has been my family's go-to for Halloween candy, vacation sunscreen, trashy magazines, and most importantly, our prescription medication. And while it may be a massive national chain, Walgreens feels decidedly local thanks to our pharmacist, who’s been in my life for nearly 15 years.
But now, Walgreens is the latest casualty — or coward, depending on who you ask — in a showdown between anti-abortion states and the federal Food and Drug Administration, which approved the key drug used in medication abortion more than 20 years ago. And as a result, Walgreens is caught in a vise of sorts that its leadership, often heralded for its diversity and innovation, neither wanted nor expected. Even worse, its legal and business dilemma potentially could have been avoided.
Walgreens is caught in a vise of sorts that its leadership, often heralded for its diversity and innovation, neither wanted nor expected.
How exactly did this happen? Let’s go back to January, when the FDA changed its regulations so that retail pharmacies could sell mifepristone, one of two drugs that comprise abortion pills, as long as it completed a certification process. Within days, Walgreens and CVS, the nation's two largest retail pharmacies, pledged they would participate. Walgreens, in particular, told CNBC it was “working through the registration and training of its pharmacists to dispense mifepristone consistent with federal and state law.”
It’s hard to understate how significant that decision was, especially in the wake of the Supreme Court’s Dobbs decision overturning the federal constitutional right to abortion. CVS asserts around 85% of Americans live within 10 miles of one of their pharmacies; 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.
And therein lies the problem. In February, notwithstanding the FDA's efforts to make medication abortion more accessible, 20 Republican state attorneys general warned Walgreens that by obtaining and selling abortion pills by mail, it could be violating federal and state laws that specifically prohibit sending or receiving abortion-inducing drugs through the mail.
The Biden administration has no plans to strictly enforce the federal statute in question. In fact, a recent opinion by the Justice Department's Office of Legal Counsel insists mailing drugs to a particular state is "insufficient" to violate the law; what matters is whether the sender intends them to be used unlawfully.
Nonetheless, even if the Office of Legal Counsel maintains “there are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law,” the 20 state attorneys general writing to Walgreens clearly dispute that. And therefore, Walgreens was caught between a rock and a hard place. By last week, Walgreens had made its decision, assuring the states it "does not intend to dispense Mifepristone within your state[s] and does not intend to ship Mifepristone into your state[s] from any of our pharmacies."
That decision was met with cheers in some corners — and outrage in others. For starters, the affected states include several, according to Politico, “where abortion in general, and the medications specifically, remain legal — including Alaska, Iowa, Kansas and Montana.” They also include states like Indiana, Ohio, North Dakota, South Carolina and Utah, where legislation outlawing medication abortion is now enjoined by courts. Given that, several Democratic senators, led by Elizabeth Warren, wrote to Walgreens, demanding that the company provide answers about its change of heart by next week. On Thursday, New York’s attorney general and governor took a similar tack, asking Walgreens for a commitment that it will dispense mifepristone to patients with a doctor’s prescription both via mail and at all FDA-certified pharmacy locations in New York. If it can’t make that commitment, they wrote, the chain must detail the “legal basis for this decision.”
But no one was as piqued as Democratic California Gov. Gavin Newsom, who vowed his state would no longer do any business with Walgreens. Newsom's announcement is poised to cost Walgreens at least $54 million thanks to the non-renewal of Walgreens' contract to provide prescription medication to the California's corrections department — and his state is still investigating whether there are other statewide contracts or arrangements with Walgreens that can be terminated.
Meanwhile, Walgreens maintains that once certified by the FDA, it will dispense mifepristone in any state "where it is legally permissible to do so." What that means, of course, is up to interpretation.
It's easy to blame Walgreens for capitulating to anti-abortion elected officials. But the company — like all retail pharmacies operating in anti-abortion states — is also caught in a legal tug-of-war with no resolution in sight. What should a company do when threatened with potential prosecution by multiple states at a time when the Biden administration's portrayal of federal law is largely untested, internal Department of Justice policy?
What's even more confounding is that the Biden administration could have affirmatively litigated the FDA's right, as an arm of the federal government and consistent with federal statutory law, to determine which drugs are safe, effective and lawful in all states. On the day the Dobbs decision came down, Attorney General Merrick Garland plainly said as much: "States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy." Had the Justice Department gone on the offensive and sought a court order declaring that the FDA’s authority under the Food, Drug and Cosmetic Act preempts any conflicting state laws, Walgreens might not be in the position it’s in today.
Instead, however, the Justice Department is now defending the very legality of mifepristone in Texas federal court. And it is not involved in any pending cases where it is arguing that FDA policy and regulations take precedence over, or preempt, conflicting state laws banning or restricting medication abortion.
That inaction is what's left Walgreens, like a plethora of much smaller pharmacies, to guess whether the FDA's approval of mifepristone (and subsequent regulations expanding its availability) renders state bans on medication abortion meaningless. Does the Supremacy Clause of the U.S. Constitution mean that medication abortion must be legal anywhere in the U.S.? Walgreens — and women across America — are still waiting for an answer.