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UPDATE: Walgreens' deceptive damage control
Walgreens is facing a public relations crisis after announcing it would not dispense abortion medication in several states where abortion remains legal. Walgreens' decision came in response to threatening letters from Republican Attorneys General and anti-abortion activists. The decisionhas provoked outrage from many customers who object to a major corporation placing additional restrictions on abortion access.
Walgreens attempted to stem the damage with a tweet purporting to "make very clear what our position always has been" on Mifepristone, a drug used in combination with Misoprostol to induce abortion. The company says it will "dispense Mifepristone in any jurisdiction where it is legally permissible."
Walgreens' statement, however, does not clarify in which states it will dispense Mifepristone. And that is the question central to the entire controversy.
For example, Walgreens told Kansas Attorney General Kris Kobach that it "does not intend to dispense Mifepristone within your state." In a letter last month, Kobach claimed that it was illegal for Walgreens to distribute Mifepristone anywhere based on an 1873 law that prohibits sending "indecent" materials through the mail. The Department of Justice disagrees. Further, companies like Walgreens have their own distribution channels and do not rely on the Postal Service to stock their pharmacies. Kobach also cites a Kansas law that says abortion pills must be given to patients "in the same room and in the physical presence of a physician." Kobach does not mention that the law was blocked in November by a Kansas judge.
The basis of the injunction is a ruling by the Kansas Supreme Court that the state constitution protects the right to an abortion. Anti-abortion activists in Kansas attempted to amend the state constitution to pave the way for an abortion ban. That constitutional amendment was overwhelmingly rejected by Kansas voters.
Nevertheless, Walgreens appears to be accepting the deeply flawed legal analysis of Kobach — who unsuccessfully ran for governor on a pledge to make Kansas "the most pro-life state in the country." Walgreens is apparently playing a similar game in Montana and other states.
Former Vice President Mike Pence (R), however, is enthusiastic about Walgreens' approach. “I commend Walgreens for yielding to the rule of law,” Pence said at the annual gala of Students for Life, an anti-abortion group. “Americans don’t want their pharmacies to become abortion facilities.”
In some states, including Ohio, abortion is legal but state laws prohibit pharmacies from dispensing abortion medication. But now that the FDA has authorized pharmacies to dispense Mifepristone, it is unclear if these laws are enforceable. This is a legal concept called federal preemption; once the federal government imposes comprehensive regulations on an activity, states are not permitted to interfere. GenBioPro, a company that produces a generic version of Mifepristone, filed a federal lawsuit in West Virginia arguing that the state's ban on abortion medication is preempted by federal law.
Walgreens has been the focus of controversy, but other major pharmacy chains — including CVS, Rite Aid, Walmart, Costco, and Kroger have not responded to media requests. Their specific policies on Mifepristone are unknown.