Kansas AG: States Can Enforce Federal Chemical Abortion Restrictions
Since the Food and Drug Administration (FDA) announced that retail pharmacies would be permitted to sell the chemical abortion regimen, pro-life leaders in the states have begun to speak out against the various ways that such a plan would encourage pharmacy businesses to violate both federal and state laws. Pro-life attorneys general like AG Kris Kobach in Kansas are making it clear that they will enforce the rule of law where the Biden administration’s Department of Justice (DOJ) fails.
This week, AG Kobach joined FRC President Tony Perkins on “Washington Watch” to discuss how he successfully put Walgreens on notice about the legal ramifications of selling abortion drugs in Kansas — and his intentions to enforce the law if need be. As AG Kobach explained to Walgreens in a letter on February 6, federal law prohibits mailing items intended to be used for “producing abortion.” Likewise, Kansas state law requires that the prescribing physician or drug provider be physically present with the mother as she ingests the abortion pills — a requirement that would not be met if retail pharmacies sold the regimen by prescription out of their pharmacies, especially by mail-order.
“These laws ensure that a doctor is present because these abortion pills cause multiple complications in some cases,” AG Kobach told Perkins. “But now, when they [the Left] see the opportunity … for this to be just distributed to people without any doctor being there, they’re more than happy to push for that.”
Due to Kobach’s pushback against Walgreens, the pharmaceutical company sent a reply letter reaffirming that the company would refrain from selling abortion drugs in the state of Kansas. Now, Kobach is pressing CVS to follow Walgreens’ lead — and encouraging pro-life attorneys general in other states to replicate his strategy. He affirmed that “other states are looking at this as well. And I’m hopeful that other states will get a similar answer from Walgreens.”
Kobach also explained the method by which state attorneys general, and even private individuals, can act to ensure that the abortion industry is held accountable when it violates the federal law prohibiting mailing abortion instruments and drugs.
“Normally, a federal criminal law is only enforceable by the U.S. Justice Department. But this particular law has a RICO provision which is Racketeering Influenced and Corrupt Organizations [Act],” AG Kobach explained. “In fact, there are a host of federal crimes that allow for RICO actions, and RICO actions can be brought by private individuals, and they can be brought by states. And what we pointed out in our letter to Walgreens is that that we would fully intend to move forward on that if Walgreens started dispensing within the state of Kansas via mail or through the stores directly to consumers.”
AG Kobach went on to explain that a RICO action “seeks civil penalties. And, so, it doesn’t actually seek a criminal penalty on anyone. But the defendant has to pay treble damages, which is an extremely high, very costly, great penalty.”
Utilizing creative enforcement mechanisms have become a signature move of the pro-life movement in recent years. In 2021, before the Dobbs decision permitted states to openly legislate to protect unborn lives, the Texas Heartbeat Act worked between the lines of Roe v. Wade to protect babies once a fetal heartbeat could be detected. The law functioned by barring state actors from enforcing it and instead empowering private citizens to sue abortionists, abortion facility employees, or people who paid for abortions (other than the mothers who had the abortions). Using a creative enforcement technique, the Texas Heartbeat Act began protecting unborn lives far before any other state.
AG Kobach concluded by stating that, “As long as the federal government is not willing to enforce criminal penalties and enforce this federal criminal statute, that’s where we are. And this is one of the consequences of having an administration in D.C., in the White House, that doesn't want to enforce some federal criminal laws. They’re doing that in this context, in the abortion context. And, of course, they’re doing it with regard to immigration and a host of other issues.”