Walgreens claimed that it ‘always’ planned to sell abortion pills where legal. Is that true?

In January, the U.S. Food and Drug Administration said it would allow retail pharmacies to begin selling the pills used for medication abortion. Previously, patients could access the drugs only at clinics, directly from doctors or by mail.

Large nationwide drugstore chains such as Walgreens and CVS promptly said they planned to pursue the certification needed to dispense the pills to people with prescriptions. 

But things got complicated in early February, when 21 Republican attorneys general sent letters threatening to sue pharmacies that try to distribute the medication in their states. 

Walgreens responded to the GOP leaders and said it doesn’t intend to dispense mifepristone — the first of the two drugs in the medication abortion process — in their states, either by mail or at physical store locations. 

Seventeen of the 21 states have laws restricting abortion and medication abortion that doesn’t allow Walgreens to dispense there. But in four of the states — Alaska, Iowa, Kansas and Montana — abortion generally remains legal. 

Walgreens’ statement caused a firestorm of criticism. California Gov. Gavin Newsom, a Democrat, vowed to cut ties with the company over its decision and announced that the state will not renew a multimillion-dollar deal with the pharmacy. 

The controversy comes with the future of medication abortion already uncertain. An anti-abortion group has asked a U.S. district judge in Texas to order the Food and Drug Administration to take mifepristone off the market. The judge, who was appointed by former President Donald Trump, is expected to issue a decision any day that could restrict the drug nationwide.  

Misoprostol, the second pill in the abortion regimen, is already available at retail pharmacies and has different uses, including preventing stomach ulcers.

On March 6, Walgreens issued a statement saying the pharmacy’s position "has always been" to sell the drug where it’s legally permissible:

"We want to be very clear about what our position has always been: Walgreens plans to dispense Mifepristone in any jurisdiction where it is legally permissible to do so," the statement reads. "Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws. Providing legally approved medications to patients is what pharmacies do, and is rooted in our commitment to the communities in which we operate."

At first glance, Walgreens’ statement seems to contradict its actions. Abortion, in fact, remains technically legal in four of the states where it said it had no plan to sell mifepristone.

But Walgreens and experts following the situation said it’s more complicated. Pharmacies like Walgreens are hamstrung by laws — some being challenged and some not — that stipulate how and when patients can obtain medications for abortion.

Laws restricting abortion —  including specific prohibitions on how women can access abortion pills — are at the center of continuing litigation. Most of the four states require that only physicians perform abortions or administer the medications needed for an abortion, or say that a patient must have an in-person visit with a doctor first. Some also require that patients get an ultrasound or receive in-person counseling before getting access to the medication or abortion services in general.

Although some of these restrictions are currently blocked and tied up in the courts, Walgreens is behaving as if these laws are in effect.

E. Michael Murphy, the American Pharmacists Association’s adviser for state government affairs, said the legal wrangling over abortion is forcing pharmacists to navigate "contradictions between state and federal law that make it difficult to understand what is legal and what is not legal."

"Without clear guidance from state and federal policymakers on how health care professionals are to navigate the current landscape without being subjected to undue legal liability, we are deeply concerned that our patients will lose access to care and suffer irreparable harm, " Murphy said.

Fraser Engerman, senior director of external relations at Walgreens, reiterated that the company’s position has not changed and that when Walgreens completes the certification process, it plans to sell the drug wherever "legally permissible," "consistent with federal and state laws." 

"Providing legally approved medications to patients is what pharmacies do, and is rooted in our commitment to the communities in which we operate," Engerman said.

The FDA approved mifepristone in 2000 to end pregnancy when used with misoprostol. The combination is approved for use up to the 10th week of pregnancy, but some reproductive health experts say it is safe up to 12 weeks.

Mifepristone is taken first to dilate the cervix and block progesterone, the hormone needed to sustain a pregnancy. Misoprostol is taken a day or two later, causing contractions to empty the uterus.

Reproductive health experts say that medication abortion is safe. The regimen accounts for at least 50% of all abortions in the U.S. and has been used by more than 5 million women. 

Currently, 12 states have a near-total ban on abortion that supersedes any other restrictions on medication abortion. Fifteen others have implemented laws that require medication for abortions be provided by a physician, according to data from the Guttmacher Institute, an abortion rights research organization.

Here are the restrictions on abortion in the four states in question.

ALASKA: Although Alaska is one of many Republican-led states that joined the lawsuit that would eliminate Americans’ access to medication abortions, the state’s Supreme Court ruled that the right to abortion is protected under Alaska’s Constitution. But a state statute mandates that only a physician perform abortions, which means pharmacies are not allowed to provide abortion pills. 

Rose O’Hara-Jolley, Alaska state director for Planned Parenthood, told the Anchorage Daily News that Walgreens’ decision not to dispense mifepristone in Alaska doesn’t change current abortion access because patients can receive the drug only in clinics. Several pharmacies have applied to dispense the drug in Alaska and are awaiting approval.

This was reiterated to the paper by Alaska Department of Law spokesperson Patty Sullivan, who said the existing state statute requiring that only licensed physicians perform abortions "prohibit(s) pharmacy sales of abortion drugs directly to patients." 

IOWA: Abortion continues to be legal, but challenges continue. In 2019, an Iowa district court blocked a 2018 law that banned abortions around six weeks, ruling it unconstitutional. In December, the court ruled against attempts to resurrect the law, saying that the state failed to demonstrate any substantial change. Iowa’s Republican governor, Kim Reynolds, vowed to appeal the decision. 

But an Iowa statute in effect says that any person not licensed to practice medicine and surgery who terminates a pregnancy is committing a felony, something that could dissuade pharmacists.

Meanwhile, Republicans in the Iowa Legislature have introduced a bill that would make it a felony to "manufacture, distribute, prescribe, dispense, sell or transfer" mifepristone. State experts say it has little chance of passing.

KANSAS: A court blocked a Kansas law that says patients can obtain abortion pills only directly from and "in the same room and in the physical presence of a physician." The injunction is based on a Kansas Supreme Court ruling that says the state constitution protects the right to abortion. Anti-abortion activists tried to amend the state constitution to change that, but Kansas voters rejected the measure in August.

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Isabel Guarnieri, a Guttmacher Institute spokesperson, told us that laws in Iowa and Kansas requiring in-person counseling and ultrasounds "could make it impractical to use a pharmacy to access abortion pills."

Kansas statute, for example, requires that 24 hours before the abortion, the physician provide detailed information "in a printed format in black ink with 12-point Times New Roman font," including the name, educational background and any disciplinary history of the physician who is providing the abortion.

"It’s confusing because these laws weren’t written specifically to target medication abortion, but they will likely still be used to restrict it," Guarnieri said.

MONTANA: Abortion will remain legal in Montana as long as the state constitution is not amended. Although the state in 2021 enacted laws restricting abortion access, all have been temporarily blocked. The state Supreme Court recognized "procreative autonomy" under the Montana Constitution, protecting the right to abortion. 

Meanwhile, the GOP letters to Walgreens claimed it was illegal for the pharmacy to distribute mifepristone because of an 1873 federal law that prohibited sending "obscene, lewd or lascivious," "immoral," or "indecent" materials through the mail. 

The Justice Department in December issued an opinion on that law, saying that it "does not prohibit the mailing of certain drugs that can be used to perform abortions."

"Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully," the department said. 

Experts who are monitoring the issue told us the Walgreens flap illustrates how difficult it is for retail pharmacies to navigate these complex, state-level abortion battles; they’re caught in the middle. 

Kirsten Moore is the project director at Expanding Medication Abortion Access, a nonprofit that seeks to improve how medications prescribed for abortion are dispensed in the U.S. She said  Walgreens’ actions reflect that legal complexity.

When the U.S. Supreme Court ended nearly 50 years of federally protected abortion access, the decisions went back to the states — that’s 50 sets of laws and 50 potential battlegrounds.

"While it is disappointing to see Walgreens hit pause, I am not surprised that a landscape of legal or regulatory uncertainty will impact corporate decisions," Moore said.

Walgreens said in a statement that its position has "always been" to "dispense mifepristone in any jurisdiction where it is legally permissible to do so."

Walgreens told leaders in 21 states that it won’t dispense the drug in states wherewon't dispense the drug in their states and would only do so where legally permissible." But that list of states included four where abortion does remain legal — Alaska, Kansas, Iowa and Montana.

However, those states have laws that restrict pharmacies like Walgreens from selling abortion pills, including requiring an in-person visit or an ultrasound, a doctor to provide the medication, or stipulating that only licensed physicians can perform abortions. 

These types of restrictions are in effect in Alaska and Iowa and paused in the other two states amid litigation. 

The blocked laws do not bar Walgreens and other pharmacies from dispensing the drug. But experts said Walgreens’ decision to withhold the drug in those states makes sense given the unsettled restrictions.

Walgreens’ statement is accurate but needs clarification or additional information. Mostly True.
 

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Correction, March 20, 2023: A sentence in the "our ruling" section inaccurately summarized what Walgreens told leaders in 21 states. The story has been corrected; the rating is unchanged.