Jean-Pierre said that President Joe Biden will “continue to support access to this critical medication within the limits of the law,” but declined to specify what steps the administration would take or whether it has spoken to Walgreens or other pharmacy chains about abortion pill access.
Abortion pills are the most common way to end a pregnancy in the United States and have become a focus for anti-abortion groups and Republican officials seeking to block access in their states.
A group of doctors and conservative medical groups is suing to overturn the FDA’s approval of mifepristone and a federal judge could rule to cut off access to the medication nationwide at any time. The Biden administration has pledged to swiftly appeal any ruling that blocks people from obtaining the pills.
Jean-Pierre also noted Friday that the Justice Department released a memo earlier this year disputing arguments GOP attorneys general have made that the more-than-a-century-old Comstock Act, related to the distribution of “vice,” prohibits mailing abortion pills.
Mary Ziegler, a professor at the UC Davis School of Law who specializes in abortion rights, noted that Walgreens and the other pharmacies remain legally vulnerable despite the support of the Biden administration, given the conservative tilt of the federal judiciary that’s now weighing whether and how the pills can be dispensed — and the possibility that a future president could reverse course.
“Do I think there’s reason for Walgreens to worry? Sure. The DOJ’s non-enforcement stance is dependent on who is in the White House,” she said. “But the degree of caution is surprising. No suits have yet been filed. And the state officials’ threat is based on a very broad interpretation of a statute that hasn’t been enforced for over 100 years. So this is risk-aversion to the extreme.”
Walgreens confirmed to POLITICO on Thursday that the company told the 20-plus state attorneys general who pressed them not to become certified distributors of mifepristone that they will not do so in their states — including some states that don’t currently ban abortion or the use of the pills, such as Alaska, Iowa, Kansas and Montana.
Other pharmacies that Republican state attorneys general have pressured to not dispense abortion pills, including Albertsons, Costco, CVS, Kroger, Rite Aid, and Walmart, did not respond to repeated requests for comment.
While courts in Texas, New Mexico and elsewhere weigh arguments about whether the Comstock Act bars mail delivery of abortion pills, Republican attorneys general and anti-abortion groups are exploring other legal strategies to block access to the drugs.
Kansas Attorney General Kris Kobach, a Republican, told POLITICO he’s ready to sue pharmacies under the Racketeer Influenced and Corrupt Organizations Act if they move forward with becoming certified to dispense abortion pills.
“Evidently, Walgreens understood that my office was serious about this,” Kobach said.
Kansans voted overwhelmingly last summer to reject a constitutional amendment clearing the way for the passage of an abortion ban, and a court has blocked the state’s requirement that the pills only be obtained in person from a physician.
Zachary Kester, the general counsel for Students for Life, said his organization and other abortion opponents are also looking into using state and federal consumer protection laws, including the Deceptive Trade Practices Act some states have, to sue pharmacies that agree to fill prescriptions for the pills.
“The ban in Kansas is enjoined,” he argued. “But that doesn’t matter if a provider or pharmacist is making a false statement about an unsafe drug and failing to disclose the risks. If a woman is harmed, she or her husband or boyfriend could bring a claim.”
The FDA has repeatedly pointed to the pills’ safety record and low rate of complication — lower than many over-the-counter medications — as the agency has eased restrictions on the drug over the past few years.