Holly Baxter
Thu, 9 March 2023
Walgreens is the second-largest pharmacy provider in the country
(Copyright 2022 The Associated Press. All rights reserved)
When Governor Gavin Newsom announced this week that California would no longer do business with Walgreens, most reacted with surprise. While retweeting a CNN story about the pharmacy giant choosing not to distribute the abortion pill mifepristone in 20 states, Newsom wrote: “California won’t be doing business with Walgreens — or any company that cowers to the extremists and puts women’s lives at risk. We’re done.”
It was action without a warning shot, and it clearly took the pharmacy giant by surprise. Walgreens — which, for any Brits and New Yorkers keen to join the boycott, shares a parent company with Boots and Duane Reade — operates nearly 600 stores in California and is the second-largest pharmacy chain in the United States. It is responsible for around 10 per cent of the pharmacy market in the west coast state. That means that taking a stand against Walgreens would be costly for the company, but also potentially for Californians themselves. The state is huge — the most populous in the country, with the third-largest landmass after Alaska and Texas — and many in rural locations known colloquially as “healthcare deserts” rely on supersize Walgreens stores to access in-network medication. Because of the company’s size, it is able to accept most health insurance plans versus a local pharmacy on an isolated small-town street.
Pulling all business with Walgreens may, then, have the unintended effect of cutting off some Californian women’s ability to access the abortion pill altogether.
Yet it remains unclear what California no longer “doing business with Walgreens” actually means. Newsom has been cagey about details, and his spokesman Brandon Richards told CNN that his team is currently “reviewing all relationships between Walgreens and the state”. It’s hard to imagine the forced closure of over 600 stores going ahead. It’s possible that “doing business” refers to pensions or sharing in California-specific innovations. The state recently announced that it plans to make its own insulin as a solution to keeping costs down for diabetics. If that comes to fruition, and insulin for $35 or less per month becomes the norm in the state as opposed to the usual $200-plus co-pay for privately insured citizens at the moment, then cutting Walgreens out of the deal could drive thousands away from the stores almost immediately.
Mifepristone is used for abortions conducted in under 8 weeks’ gestation
Kamala Harris holds up a map showing the inconsistency of abortion access in the US after the overturn of Roe v Wade
Mifepristone is an abortion pill that works when a woman has been pregnant for eight weeks or less. Different to Plan B, it ends an early pregnancy by cutting off progesterone and opening the cervix (Plan B, sometimes known as the morning-after pill, is not an abortion pill and instead works to prevent implantation before a pregnancy occurs.) Around 80 per cent of abortions in the US are performed at this early stage, many of which can be conducted at home by taking mifepristone. Despite Republican horror stories and Trumpian lies about abortions being conducted “at birth”, just 4 per cent of abortions are carried out after 16 weeks, and most of those are because of an immediate health danger to the mother or the sad finding that a fetus has a condition incompatible with life.
Importantly, mifepristone is also prescribed by doctors to women who are experiencing a miscarriage. It helps to clear the uterus of any debris from a failed pregnancy that could lead to serious infection and potentially fatal sepsis.
Put simply, when access to mifepristone is politicised and then made difficult, people die. That Walgreens treated the issue so flippantly in the first place is a red flag — and is probably enough for a lot of its customers to never shop there again.
When Governor Gavin Newsom announced this week that California would no longer do business with Walgreens, most reacted with surprise. While retweeting a CNN story about the pharmacy giant choosing not to distribute the abortion pill mifepristone in 20 states, Newsom wrote: “California won’t be doing business with Walgreens — or any company that cowers to the extremists and puts women’s lives at risk. We’re done.”
It was action without a warning shot, and it clearly took the pharmacy giant by surprise. Walgreens — which, for any Brits and New Yorkers keen to join the boycott, shares a parent company with Boots and Duane Reade — operates nearly 600 stores in California and is the second-largest pharmacy chain in the United States. It is responsible for around 10 per cent of the pharmacy market in the west coast state. That means that taking a stand against Walgreens would be costly for the company, but also potentially for Californians themselves. The state is huge — the most populous in the country, with the third-largest landmass after Alaska and Texas — and many in rural locations known colloquially as “healthcare deserts” rely on supersize Walgreens stores to access in-network medication. Because of the company’s size, it is able to accept most health insurance plans versus a local pharmacy on an isolated small-town street.
Pulling all business with Walgreens may, then, have the unintended effect of cutting off some Californian women’s ability to access the abortion pill altogether.
Yet it remains unclear what California no longer “doing business with Walgreens” actually means. Newsom has been cagey about details, and his spokesman Brandon Richards told CNN that his team is currently “reviewing all relationships between Walgreens and the state”. It’s hard to imagine the forced closure of over 600 stores going ahead. It’s possible that “doing business” refers to pensions or sharing in California-specific innovations. The state recently announced that it plans to make its own insulin as a solution to keeping costs down for diabetics. If that comes to fruition, and insulin for $35 or less per month becomes the norm in the state as opposed to the usual $200-plus co-pay for privately insured citizens at the moment, then cutting Walgreens out of the deal could drive thousands away from the stores almost immediately.
Mifepristone is used for abortions conducted in under 8 weeks’ gestation
(Copyright 2022 The Associated Press. All rights reserved)
What’s most bizarre about Newsom’s statement is that Walgreens didn’t see it coming. Just days earlier, it had responded to pressure from Republican politicians from jurisdictions where abortion is both legal and illegal by agreeing not to distribute mifepristone in any of their 20 states. On 1 February, the attorneys general of states where abortion has been effectively outlawed, like Kentucky and Texas, co-signed a letter alongside colleagues from other states — such as Alaska, Montana, Iowa and Florida — where abortion remains legal. The letter was sent to Walgreens and competitors including CVS, Rite Aid and Walmart, and purported to concern the protection of women and children. It effectively threatened the pharmacies with numerous legal actions if they continued to sell mifepristone. The message was clear: We intend to make this hard for you.
In late February, Walgreens was the only company to publicly respond to the pressure. In a letter dated 17 February, a representative of the Walgreens Boots Alliance responded to all of the signatories, stating: “Walgreens does not intend to dispense mifepristone within your state and does not intend to ship mifepristone into your state from any of our pharmacies. If this approach changes, we will be sure to notify you.” To many people’s surprise, this letter didn’t exclude the attorneys general who had written from states where the abortion pill remains legal. It looked very much like Walgreens was throwing women to the dogs at the first sign of trouble.
Perhaps Walgreens didn’t imagine that liberals would be as strident in their blowback as conservatives were in their pressure campaign. Or perhaps the pharmacy simply doesn’t have a strategy to deal with the fallout of Roe v Wade’s overturn, even months down the line. Either way, they released a statement in the wake of California Governor Newsom’s announcement that directly contradicted what they’d said days earlier. “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. 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,” the company wrote in a statement on March 6th. The Independent approached Walgreens for further explanation and was directed back to the statement on the Walgreens website. Requests for further clarification, considering that the statement directly contradicted what was said in the letter days earlier, were ignored.
Whether or not Walgreens is backpedaling, enough damage has clearly already been done. Filmmaker Michael Moore addressed the controversy in his popular Substack newsletter on 5 March with a simple headline: “Boycott Walgreens, a pharmacy that stands with anti-abortion extremists against the rights of women”. #BoycottWalgreens began trending on Twitter. Walgreens stock began to plummet. Stories on social media began to proliferate about people cancelling their Walgreens accounts or clogging up the company’s inboxes and phone lines with angry missives. People began reminding each other that the typical Walgreens customer, as well as the typical Walgreens employee, is female. By this point, it was 8 March: International Women’s Day. Few could imagine an organisation finding itself in a worse PR bind for the biggest female-centred day of the year. Walgreens became central to the celebrations in the worst way possible — as an example of how collective action by women can be used to take sexist corporations down.
What is perhaps the most concerning about Walgreens’ initial caving to the pressures of Republican attorneys general is the fact that many of those politicians were attempting to directly subvert democracy. Kansas is a pertinent case in point. The ruby-red state ran a referendum not long after Roe v Wade’s overturning by the Supreme Court, in August 2022. It was widely expected that Kansans would vote in that referendum to overturn the state constitution and make abortion illegal. This was the first state to test the waters after SCOTUS’ decision. Anti-abortion campaigners planned to declare the results as proof that the “moral majority” agreed the procedure should be illegal.
But the plan never came to fruition. Instead, in an unexpected twist, 59 per cent of Kansans voted “no” on an amendment that would have banned abortion in the state. The victory went to the Biden administration instead, who released a triumphant statement about the importance of allowing women to make their own healthcare decisions. It seemed that far-right campaigners on the issue had forgotten why a huge proportion of Americans — especially in rural states like Kansas — vote Republican. These Republican voters are not necessarily evangelicals; in fact, they are more often than not libertarian-minded people whose main concern is keeping the government out of their business. And bringing in rules about what women can do with their own bodies in the privacy of their own homes really smells like bringing the government into their business.
What’s most bizarre about Newsom’s statement is that Walgreens didn’t see it coming. Just days earlier, it had responded to pressure from Republican politicians from jurisdictions where abortion is both legal and illegal by agreeing not to distribute mifepristone in any of their 20 states. On 1 February, the attorneys general of states where abortion has been effectively outlawed, like Kentucky and Texas, co-signed a letter alongside colleagues from other states — such as Alaska, Montana, Iowa and Florida — where abortion remains legal. The letter was sent to Walgreens and competitors including CVS, Rite Aid and Walmart, and purported to concern the protection of women and children. It effectively threatened the pharmacies with numerous legal actions if they continued to sell mifepristone. The message was clear: We intend to make this hard for you.
In late February, Walgreens was the only company to publicly respond to the pressure. In a letter dated 17 February, a representative of the Walgreens Boots Alliance responded to all of the signatories, stating: “Walgreens does not intend to dispense mifepristone within your state and does not intend to ship mifepristone into your state from any of our pharmacies. If this approach changes, we will be sure to notify you.” To many people’s surprise, this letter didn’t exclude the attorneys general who had written from states where the abortion pill remains legal. It looked very much like Walgreens was throwing women to the dogs at the first sign of trouble.
Perhaps Walgreens didn’t imagine that liberals would be as strident in their blowback as conservatives were in their pressure campaign. Or perhaps the pharmacy simply doesn’t have a strategy to deal with the fallout of Roe v Wade’s overturn, even months down the line. Either way, they released a statement in the wake of California Governor Newsom’s announcement that directly contradicted what they’d said days earlier. “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. 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,” the company wrote in a statement on March 6th. The Independent approached Walgreens for further explanation and was directed back to the statement on the Walgreens website. Requests for further clarification, considering that the statement directly contradicted what was said in the letter days earlier, were ignored.
Whether or not Walgreens is backpedaling, enough damage has clearly already been done. Filmmaker Michael Moore addressed the controversy in his popular Substack newsletter on 5 March with a simple headline: “Boycott Walgreens, a pharmacy that stands with anti-abortion extremists against the rights of women”. #BoycottWalgreens began trending on Twitter. Walgreens stock began to plummet. Stories on social media began to proliferate about people cancelling their Walgreens accounts or clogging up the company’s inboxes and phone lines with angry missives. People began reminding each other that the typical Walgreens customer, as well as the typical Walgreens employee, is female. By this point, it was 8 March: International Women’s Day. Few could imagine an organisation finding itself in a worse PR bind for the biggest female-centred day of the year. Walgreens became central to the celebrations in the worst way possible — as an example of how collective action by women can be used to take sexist corporations down.
What is perhaps the most concerning about Walgreens’ initial caving to the pressures of Republican attorneys general is the fact that many of those politicians were attempting to directly subvert democracy. Kansas is a pertinent case in point. The ruby-red state ran a referendum not long after Roe v Wade’s overturning by the Supreme Court, in August 2022. It was widely expected that Kansans would vote in that referendum to overturn the state constitution and make abortion illegal. This was the first state to test the waters after SCOTUS’ decision. Anti-abortion campaigners planned to declare the results as proof that the “moral majority” agreed the procedure should be illegal.
But the plan never came to fruition. Instead, in an unexpected twist, 59 per cent of Kansans voted “no” on an amendment that would have banned abortion in the state. The victory went to the Biden administration instead, who released a triumphant statement about the importance of allowing women to make their own healthcare decisions. It seemed that far-right campaigners on the issue had forgotten why a huge proportion of Americans — especially in rural states like Kansas — vote Republican. These Republican voters are not necessarily evangelicals; in fact, they are more often than not libertarian-minded people whose main concern is keeping the government out of their business. And bringing in rules about what women can do with their own bodies in the privacy of their own homes really smells like bringing the government into their business.
Kamala Harris holds up a map showing the inconsistency of abortion access in the US after the overturn of Roe v Wade
Mifepristone is an abortion pill that works when a woman has been pregnant for eight weeks or less. Different to Plan B, it ends an early pregnancy by cutting off progesterone and opening the cervix (Plan B, sometimes known as the morning-after pill, is not an abortion pill and instead works to prevent implantation before a pregnancy occurs.) Around 80 per cent of abortions in the US are performed at this early stage, many of which can be conducted at home by taking mifepristone. Despite Republican horror stories and Trumpian lies about abortions being conducted “at birth”, just 4 per cent of abortions are carried out after 16 weeks, and most of those are because of an immediate health danger to the mother or the sad finding that a fetus has a condition incompatible with life.
Importantly, mifepristone is also prescribed by doctors to women who are experiencing a miscarriage. It helps to clear the uterus of any debris from a failed pregnancy that could lead to serious infection and potentially fatal sepsis.
Put simply, when access to mifepristone is politicised and then made difficult, people die. That Walgreens treated the issue so flippantly in the first place is a red flag — and is probably enough for a lot of its customers to never shop there again.
Walgreens Says Its Hands Are Tied on the Abortion Pill. Experts Say That’s Not True
Tessa Stuart
Fri, March 10, 2023
State Of California Cuts Ties With Walgreens Over Company Not Carrying Abortion Pill In 21 States - Credit: Justin Sullivan/Getty Images
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.
More from Rolling Stone
'Sick and Twisted': Women Describe Losing Pregnancies, Nearly Dying Because of Texas Laws
Gavin Newsom Says California Won't Do Business With Walgreens Over Abortion Pills Issue
Texas GOP Bill Gives Tax Cuts to Heterosexual Parents
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 — BioGenPro — 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 BioGenPro. “But the theory is wrong on the law.”
BioGenPro 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.”
BioGenPro 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.”
Tessa Stuart
Fri, March 10, 2023
State Of California Cuts Ties With Walgreens Over Company Not Carrying Abortion Pill In 21 States - Credit: Justin Sullivan/Getty Images
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.
More from Rolling Stone
'Sick and Twisted': Women Describe Losing Pregnancies, Nearly Dying Because of Texas Laws
Gavin Newsom Says California Won't Do Business With Walgreens Over Abortion Pills Issue
Texas GOP Bill Gives Tax Cuts to Heterosexual Parents
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 — BioGenPro — 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 BioGenPro. “But the theory is wrong on the law.”
BioGenPro 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.”
BioGenPro 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.”
