Walgreens Caught Between a Rock and a Hard Place
The relationship between Biden’s executive agencies, federal and state policies, and bold attorneys general are dynamically interconnected and playing a key role in deciding the availability of chemical abortion pills in the United States. The Food and Drug Administration (FDA) has been under fire for the lack of regulation on chemical abortion, having recently “lifted restrictions for the process of attaining abortion pills at retail pharmacies.” As big box pharmacies have begun to make public their intentions to distribute abortion pills, there are strong opinions on both sides of the aisle, especially as it relates to Walgreens.
Six Democrat senators sent a letter to Walgreens last week requesting a specific list of states where the company plans to dispense chemical abortion pills, pressuring them to make the drugs available in as many states as possible. When Walgreens announced that it would abide by all federal and state laws on chemical abortion, California Governor Gavin Newsom (D) retaliated by canceling a $54 million contract with Walgreens pharmacies.
On the pro-life side, 20 bold attorneys general have led the charge by sending a letter urging Walgreens not to sell chemical abortion pills. They outline the unlawful behavior of the Biden administration and certain Democrat AGs when it comes to the selective enforcement of federal and state laws. Walgreens responded by agreeing not to distribute abortion pills in any of the states on the letter, including Kansas, whose AG sent his own letter clarifying all of the relevant federal and state statutes that Walgreens must comply with.
Attorneys general have the unique ability to act independently (within the boundaries of their authority) to do what we elect them to do: issue opinions, protect public interests, advocate for their constituency, and hold the other branches of government accountable. This, paired with the state’s abilities to litigate on abortion laws, means that there is an even higher level of activity on the life issue in states across the country.
One of the main reasons Walgreens is scared off by the letter from the AGs is their threat to enforce the federal abortion mailing statutes, which make it illegal to ship any abortion-inducing drugs. In addition to the federal laws at play, many states also have laws on the books defending unborn life or specifically restricting how chemical abortions can be prescribed. For example, North Dakota protects life at conception, but it also has specific laws that require a woman be physically present to obtain abortion pills, which must also be prescribed by a doctor. These laws alone would exclude pharmacies from prescribing abortion pills in North Dakota.
Looking through the different layers of law and policy, there are 32 states that for one reason or another create legal obstacles for any pharmacy seeking to become an abortion business. Eighteen states have laws on the books protecting life at conception with some limited exceptions, making it highly unlikely Walgreens will attempt to dispense abortion pills in these states. Eight additional states including Alaska and Montana (which allow legal abortion through viability) have pro-life attorneys general that signed the letter to Walgreens.
There are three additional states that have Republican attorneys general who did not sign the letter to Walgreens but could and should make public that they too can enforce the federal abortion mailing statutes. For instance, Virginia Republican Attorney General Jason Miyares did not sign on, even though his state’s political climate appears favorable, with a Republican governor and a Republican House majority.
Finally, there are three states that allow legal abortion and have pro-abortion attorneys general but have state-level statutes that restrict who can prescribe chemical abortion pills. Both Nevada and Pennsylvania have laws mandating that only physicians can carry out abortions, not pharmacists. And North Carolina has a law stating that only physicians can carry out abortions, and those abortions must be carried out in a hospital or abortion center.
Pro-life individuals, families, and organizations have a unique opportunity for activism in the post-Dobbs era. It is the job of attorneys general and executive agencies to enforce the laws on the books regardless of their personal opinion of those laws. It is also the responsibility of both citizens and legislators to voice their concerns and demand accountability when it comes to the actions taken by both government officials and big businesses like Walgreens.
So, while Democrat senators may attempt to threaten Walgreens to dispense abortion pills in as many states as possible, it would be wise for these pharmacies to tread carefully and reconsider whether it is worth seeking certification from the FDA to dispense abortion pills at all, given they may only do so in a small subset of states.
Connor Semelsberger is Director of Federal Affairs - Life and Human Dignity at Family Research Council.